"Nothing in the present Charter shall invalidate or preclude action in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such actions." 100 Using such an argument the Soviets would justify their action as purportedly aimed at preventing the aggressive resurgence of enemy states of World War II." 11 This argument, however, is largely precluded by the terms of the Warsaw Pact itself and the political ramifications that would develop in the Soviet Bloc arising from such a claim. The conclusion is obvious, therefore, that a regional organization, unless acting in collective self-defense against armed attack, or in accordance with the legitimate provisions of the agreement creating the regional organization, or pursuant to a Security Council resolution, may not use force or the threat of force against another state. The fully documented facts relating to this invasion indicate that no armed attack had taken place, and indeed, was not even contemplated, and that the Security Council of the United Nations, far from authorizing the Warsaw Pact to take enforcement action, sought to condemn the action of the Pact forces and was only prevented from doing so by the veto power of the Soviet Union. It must also be considered that no legitimate provision of the Warsaw Pact authorized such intervention. On these facts the Soviet claim of acting in collective self-defense under the Charter provisions of regional authorization and legitimation must be rejected. V. CONCLUSION There can be little doubt that with the promulgation of the Brezhnev Doctrine the leaders of the Soviet Union have introduced a new and dangerous concept of international law to justify their foreign policy determinations, particularly with regard to relations between socialist countries. Proceeding from an ideological basis derived from the teachings of Marx and Lenin, and utilizing the concept of socialist internationalism, the Soviet Union now claims the right to armed intervention in the internal affairs of any socialist country when a threat to the cause of socialism in that country emerges. The rationale behind this claim is that a threat to the cause of socialism in one country is seen as a threat to the security of the socialist community as a whole. The genesis of this rationale lies in the fact that the leaders of the Soviet Union view themselves as the custodians of an historic achievement, the evolution of the "Socialist Commonwealth." 162 The unique aspect of this doctrine lies in the open declaration by Chairman Brezhnev that such armed intervention can be sparked by a threat to the socialist order, whereas the Soviet Union formerly relied upon a more conventional justification for its exercise of power politics, such as an alleged request for troops from the government involved, or an assertion that the action taken was in self-defense against subversive activity on the part of outside powers." In fact, as we have already noted, a conventional justification of this nature was asserted in the original explanation of the invasion of Czechoslovakia. When faced with the trend toward liberalization and economic reform in Czechoslovakia, the Soviet leaders viewed this as a threat to the socialist community as a whole and led an invasion by Warsaw Pact forces into that country. At the time, they claimed that party and state leaders of the Czechoslovak Socialist Republic had requested assistance with armed force and that in accord with the right of states to individual and collective self-defense, they had a right to use such armed intervention. It was only after these claims were thoroughly rebutted that the Soviet leaders set forth the real basis for intervention. The characterization of the Brezhnev Doctrine within the framework of international law is difficult, as it is primarily ideological in nature, but, as noted above, it appears to be a legal claim to external initiation of the use of force for the purpose of maintaining an internal authority structure, namely a socialist form of government. Absent authorization from the United Nations to act on its behalf and in the absence of facts upon which to assess the right of selfdefense, the claim must be viewed as inconsistent with the principles expressed 100 U.N. Charter, Art. 107. 161 See Kulski, The Soviet System of Collective Security Compared with the Western System, Am. J. Int'l L. 453 (1950). 162 Supra note 147. in the United Nations Charter and also as a violation of international law from the viewpoint of generally accepted conventional norms of international law. At the heart of the Soviet claim, however, is the position that such a viewpoint is allegedly based on an abstract nonclass approach to the question of sovereignty and the rights of nations to self-determination. With this attitude there is little possibility that the essence of the Brezhnev Doctrine will be reformulated or disavowed as long as the concept of class struggle remains viable in the formulation of Soviet policy. In conclusion, it appears that Soviet foreign policy in Europe is largely shaped by a desire to retain hegemony in Eastern Europe; by the need to contain political, economic and psychological pressures on Eastern Europe from the West, mainly from Western Germany; and by the desire to retain policy options and flexibility vis-a-vis Western Europe, while seeking strategic arms control agreements with the United States. On this basis, the Brezhnev Doctrine can be expected to be advanced by the Soviet Union as an important policy tool in its relations with the Eastern Bloc nations during the coming years. Thus, it is incumbent upon spokesmen for United States foreign policy to resist the claim advanced by the doctrine at every opportunity. Only in this manner will the Soviet Union come to realize the self-defeating aspects of such a doctrine and adhere to those norms of international law upon which the United Nations Charter is based and which should govern the international relations of all nations. 183 Clemens, Jr., supra note 17. ARTICLES FROM NEWSREVIEW MAGAZINE, FEBRUARY 9, 1974, ENTITLED "KOREA, JAPAN SIGN AGREEMENTS ON SEA SHELF" JOINT OIL DRILLING TO START IN APRIL Korea and Japan last week signed the agreements concerning joint development of the southern part of the continental shelf south of Cheju Island and establishment of the boundary in the northern part of the continental shelf adjacent to the two countries. The two countries also signed the minutes to the two agreements on seabed resources development and exchanged notes concerning drilling obligations, prevention of collisions at sea and prevention and removal of sea pollution. The signing took place at Tuesday last week in Seoul between Foreign Minister Kim Dong-jo and Japanese Ambassador Torao Ushiroku and marked the first case of joint development of a continental shelf in the history of the world. With the conclusion of the agreements Korea and Japan reached a final practical solution to the question of developing continental shelf resources and carrying out jointly the exploration and exploitation of petroleum resources in the continental shelf that lies south of the Korean peninsula and west of Japan's westernmost island of Kyushu. These agreements will remain in force for 50 years, and go into effect on the date when the instruments of ratification are exchanged soon after ratification by the parliaments of both countries. However, test drillings are expected to be undertaken soon, possibly April, by concessionaires authorized by either party to explore and exploit natural resources in the joint development zone. Natural resources, according to the agreement, mean petroleum (including natural gas) and other underground minerals which are produced in association with such resources. The joint development area totals 100,000 square kilometers and it covers part of mining zones No. 4, 5 and 6 and the entire block of No. 7. The area is also divided into nine subzones. The firms which will participate in the joint venture project with Japanese companies are the Korean American Oil Co., Gulf Oil Co., Royal Dutch Shell. and Texaco. The Japanese interests are Nihon Sekiyu, Nishi Nippon Sekiyu and Teikoku Sekiyu. 30-YEAR EXPLOITATION The concessionaires or the joint venture firms are to enter into an operating agreement to explore and obtain the right to survey for eight years, and the right to exploit, when commercial discovery of natural resources is made, for 30 years. The agreement stipulates that concessionaires are required to drill a certain number of wells during the period of exploration in each subzone; two respectively for the first three years and following three years and the remaining two years. The agreements also said concessionaires of both parties shall release onefourth of the original subzone concerned within three years, and another onefourth every two years thereafter. The parties should, under the agreement, agree on measures to be taken to prevent collisions at sea and to prevent and remove pollution from the sea resulting from activities relating to the exploration or exploitation of natural resources in the joint development areas. A governmental joint commission between Korea and Japan will be established in an effort to discuss matters concerning the implementation of these agreements while arbitrating disputes and other problems arising in exploration and exploitation. The pact provides for equal sharing of resources extracted in the joint development zone and costs involved. Under the accord, the joint venture firms will pay royalties and taxes to the country with which they are under contract according to the rates provided for by the domestic laws of the country. The Korean law calls for a payment of 12.5 per cent in royalties and 50 per cent in taxes of the total profit. The Japanese law provides for a payment of one per cent in royalties and 42 per cent in taxes. As for the agreement on the delimitation in the northern part of the continental shelf adjacent to the two countries, the boundary line between parts of the continental shelf appertaining to Korea and Japan shall be straight lines connecting Point 1 of 32°57.0′N and 127°41′E and Point 35 of 36°10.0′N and 131° 15.9'E. If any single geological structure or field of mineral deposits beneath the seabed extends across the boundary line and the field situated on one side of the boundary line is exploitable, wholly or in part, from the other side, the parties shall seek to reach an agreement to exploit them most effectively. On Jan. 1, 1970, the government proclaimed the Submarine Mineral Resources Development Act governing seven continental shelf blocks along the nation's coast line. Korea and Japan agreed in principle to jointly develop the seabed resources in 1972 and have held nine working-level or ministerial conferences in Seoul and Tokyo alternately. The negotiations on the shelf development came to an end after Korea and Japan agreed on joint development at the Korea-Japan ministerial meeting in September last year. STAGE SET FOR JOINT SEABED EXPLORATION Korea and Japan embarked on a joint stride toward searching for oil in the continental shelf adjacent to the two countries by producing a final practical solution to the question of the oil and gas resources that supposedly exist beneath the shelf south of Cheju Island. In an amicable and cordial atmosphere at a brief ceremony held at the Capitol in Seoul last Wednesday, Foreign Minister Kim Dong-jo and Japanese Ambassador Torao Ushiroku, representing both governments, put their signatures on two agreements plus the attached agreed minutes and notes. The two accords are concerned with the joint development of the southern part of the continental shelf south of Cheju Island and the establishment of a boundary in the northern part of the continental shelf adjacent to the two countries. Attached to these accords are two agreed minutes and three exchanges of notes concerning drilling obligations, the prevention of collisions at sea, and the preventions and removal of sea pollution. The two oil-starved neighbors will seek early parliamentary ratification of the agreements to start drilling operations as early as possible, even before getting ratification expected by the end of April as both sides are more immediately concerned with exploiting the seabed resources, especially oil. The agreement on the joint development of offshore resources is based on the principle of equality. It provides for equal sharing of resources extracted from the continental shelf called the "Joint Development Zone," and equal sharing of all costs involved. The zone lies south of the Korean peninsula or south of Cheju Island and west of Japan's westernmost main island of Kyushu and stretches close to the South China Sea. The joint development zone totals about 95,000 square kilometers and covers part of mining zones No. 4, 5 and 6 and the entire block of No. 7, which the Republic of Korea claims. The development area was also divided into nine subzones and each will be explored and exploited by concessionaires authorized by Korea and Japan. The conclusion of the agreements is significant not only in that the two neighbors undertook bilateral joint offshore development for the first time and marked a unique precedent in offshore development but also in that the joint ventures will contribute to cementing cooperative efforts between the two countries. After signing the agreement Minister Kim said, "These agreements in all represent a remarkable example of well-ordered cooperation in which both Korea and Japan undertake to combine their efforts, their ingenuity, and their resources in a march toward an international order governing ocean resources." Ambassador Ushiroku also said in reply, "We hope the twin agreements will be another milestone for further mutual cooperation between Korea and Japan." The disputes were settled, however, by withholding the territorial sovereign right and jurisdiction over all or any portion of the joint development zone between the two countries, which are hungry for oil energy, in particular since they were hit severely by the embargo of the oil producing nations in the Middle East. The controversies over the continental shelf arose in January 1970, when Korea proclaimed the Marine Mineral Resources Development Law and claimed sovereign rights for developing seven continental shelf blocks along the nation's coast line outlined in May of that year. The shelf area south of the Demilitarized Zone of Korea covers about three times the land area of south Korea with approximately 300,000 square kilometers. Two years earlier in 1968, the Economic Commission for Asia and the Far East (ECAFE) reported that the offshore area may be rich in oil resources but remains untouched. This touched off interests to Korea and Japan. Mainland China has also laid claim to part of the area Korea and Japan are planning to explore. Last year, Korea expressed its willingness to hold discussions with Chinese authorities concerning the shelf. But no reply has been received from China yet. Korea thus far has granted oil prospecting concessionaires to several American and European oil companies, including the Gulf, Texaco and Shell giants. The big oil firms drilled in the continental shelf adjacent to the area but failed to strike oil. Soon after the proclamation, the Japanese authorities concerned insisted on Japan's territorial ownership of part of the vast continental shelf, where Korea has claimed jurisdiction. But the two countries agreed in principle to develop jointly the disputed region by deferring the territorial rights and jurisdiction question at the KoreaJapan ministerial conference held in September 1972. After intensive ministerial or working-level meetings as many as nine times in Seoul and Tokyo since the first talks in October 1972, the negotiations came to an end in July of last year. EQUIDISTANCE The agreement on the delimitation of the continental shelf in the northern part, which consists of four articles and one agreed minute, is based on the principle of equidistance. The pact stipulates that the boundary will be straight lines connecting from Point 1 of 32 57.0'N and 127 41.1'E to Point 35 of 36 10.0'N and 131 15.9'E. If any single geological structure or field for mineral deposit beneath the seabed extends across the boundary line and part of a field which is situated on one side of the boundary line is exploitable, wholly or in part, from the other side of the boundary line, the parties shall seek to reach an agreement to exploit it most effectively. If the principal parties fail to agree on any matter, it will be referred to thirdparty arbitration whose decision shall be binding upon the parties. The main points of the agreement concerning joint development of the southern part of the continental shelf and four supplementary documents are as follows. The seabed resources to be prospected will be limited to "natural resources." This means petroleum (including natural gas) resources and other underground minerals which are produced in association with such resources. Development of all living resources in the zone will be banned. This agreement shall remain in force for a period of 50 years and shall continue in force thereafter until either party terminates this agreement by giving threeyears' written advance notice to the other side. A Korean-Japan Joint Commission shall be established and maintained as a means of discussing matters concerning the implementation of the agreement while settling disputes and problems incapable of solution by concessionaires. The parties shall agree on measures to be taken to prevent collisions at sea and to prevent and remove pollution of the sea resulting from activities relating to exploration or exploitation of natural resources in the joint development zone. |