A Review Concerning 2009 Maritime Delimitation in the Black Sea 239 A Review Concerning 2009 Maritime Delimitation in the Black Sea ZHANG Weibin* Abstract: ed a Judgment on the Romania v. Ukraine “equitable principles and relevant circumstances approach” and applied the equidistance method to delimitation. Meanwhile, the ICJ insisted that although the equidistance method should be a primary provisional step for delimitation, it did not demonstrate that the method shall take priority automatically, and that the method shall not apply if there were compelling reasons. As for the effectivités of Serpents’ Islan- some problems with this tendency. Key Words: Black sea; Serpents’ Island; Maritime delimitation; Equitable principles and relevant circumstances approach A serious dispute had existed for a long time between Ukraine and Romania over the delimitation of their maritime boundary in the Black Sea. On 16 September requested the delimitation of the continental shelves and the exclusive economic and therefore had no exclusive economic zone or continental shelf. The Judgment * ZHANG Weibin, lecturer from the School of Law of Anhui University of Finance and Economics and Ph.D. candidate in public international law from the East China University of Political Science and Law. © THE AUTHOR AND CHINA OCEANS LAW REVIEW 240 China Oceans Law Review (Vol. 2009 No. 2) I. Preliminary Legal Issues A. Subject-matter of the Dispute The Black Sea, an enclosed sea containing rich oil and natural gas resources Mediterranean Sea by the Straits of the Dardanelles, the Sea of Marmara and the Bosphorus. The sea area delimited in this case is situated in the Northwestern Black ents’ Island was incorporated into the USSR in accordance with a protocol between rned the establishment of a single maritime boundary delimiting the continental shelf and exclusive economic zones between the two States in the Black Sea. In its Appeal, Romania interpreted that, “following a complex process of negotiations,” Romania and Ukraine signed the Treaty on Relations of Co-operation and Good Neighbourliness (Treaty on Good Neighbourliness and Co-operation) luded by exchange of letters of the Ministers of Foreign Affairs of the two States. assumed the obligation to conclude a Treaty on the State Border Régime between Romania and Ukraine, as well as an Agreement for the delimitation of the continental shelf and the exclusive economic zones of the two countries in the Black Sea.” tions for the conclusion of such Agreement were to start as soon as possible, during a period of three months from the date of the entering into force of the Treaty on was obtained. Under these circumstances, Romania requested the ICJ to establish a single maritime boundary delimiting the continental shelf and exclusive economic zones between the two States in the Black Sea in accordance with international law, A Review Concerning 2009 Maritime Delimitation in the Black Sea especially the standards set forth 1 B. Jurisdiction of the ICJ and Its Scope the latter of which provides, “if these negotiations shall not determine the conclusion of the agreement for the delimitation of the continental shelf and the exclusive economic zones in initiation, the Government of Romania and the Government of Ukraine have agreed that the problem of delimitation of the continental shelf and the exclusive economic zones shall be solved by the United Nations International Court of Justice, at the request of any of the parties, provided that the Treaty on the regime of the State border between the two countries has entered into force. However, should the ICJ consider that the delay of the entering into force of the Treaty on the regime of the State border is the result of the other Party’s fault, it may examine the request concerning the delimitation of the continental shelf and the exclusive economic zones before the entry into force of this Treaty.” Romania argued that both the two In the Appeal, Romania held that “the initial segment of the boundary separating the Romanian exclusive economic zone and continental shelf from the Ukrainian territorial waters around Serpents’ Island between Point F and Point X was establis- en these two points and then to proceed to the determination of the delimitation line in the other segments where the line had not yet been established by the two States. 1 Case Concerning Maritime Delimitation in the Black Sea between Romania and Ukraine, refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” China Oceans Law Review 242 (Vol. 2009 No. 2) Ukraine on the contrary argued that the jurisdiction of the ICJ should be “restricted to the delimitation of the areas of continental shelf and the exclusive economic zones of the Parties.” In its view, the ICJ had no jurisdiction to delimit other maritime zones pertaining to either of the Parties and in particular their respective territorial seas. The ICJ observed that Ukraine could not contend under international law, as a matter of principle, a delimitation line separating the territorial sea of one State from the exclusive economic zone and the continental shelf of another State. In fact, such a line was determined by the ICJ in its latest Judgment on the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras eaty, in its article 1, describes the boundary line between the two Parties not only on land but also the line separating their territorial seas, the ICJ’s jurisdiction covered only the delimitation of their continental shelf and exclusive economic zones. C. Applicable Law In the Appeal, Romania summarized the laws applicable to settlement of Montego Bay to which both Romania and Ukraine are parties, as well as other and the continental shelf, respectively. The two articles are consistent in content on the whole, both stressing that the delimitation of the exclusive economic zone or continental shelf between States with opposite or adjacent coasts “shall be of the Statute of the International Court of Justice, in order to achieve an equitable have become well established in the jurisprudence of the ICJ shall also be taken into account. What’s more, in light of UNCLOS being a framework convention, Romania were applicable both to the diplomatic negotiations between the two States and for A Review Concerning 2009 Maritime Delimitation in the Black Sea 243 the purposes of any eventual settlement of the dispute by the ICJ. These principles as applied in the practice of states and in international case jurisprudence; (b) the principle of the equidistance line in areas submitted to delimitation where the coasts are adjacent and the principle of the median line in areas where the coasts are opposite; (c) the principle of equity and the method of proportionality, as they are applied in the practice of states and in international case jurisprudence; (d) the principle according to which neither of the Contracting Parties shall contest the sovereignty of the other Contracting Party over any part of its territory adjacent to the zone submitted to delimitation; (e) the principle of taking into consideration the special circumstances.6 According to Ukraine, however, the principles enunciated proceedings. At the same time Ukraine acknowledged that some of these principles might be relevant as part of the established rules of international law which the ICJ would apply but not as part of any bilateral agreement. The ICJ noted that the principles listed in the Additional Agreement might apply to the extent that they were part of the relevant rules of international law. Verbaux between the two countries shall be legally binding on both parties and be taken into account in the delimitation. In particular, according to the Treaty on in exchange for the fact that Romania formally confirmed that Serpents’ Island belonged to Ukraine, Ukraine accepted the principles for reaching an equitable solution to the delimitation laid down by the Additional Agreement and the declaraLOS, Serpents’ Island “cannot sustain human habitation or economic life of their own” and therefore has no effectivités in delimitating the continental shelf and the exclusive economic zones. With regard to the views of Romania, Ukraine argued that the above agreeme- 6 244 China Oceans Law Review (Vol. 2009 No. 2) because they were not agreements delimiting the continental shelf and exclusive economic zones. With regard to the declaration made by Romania with respect to out the difference between a reservation and a declaration which did not modify the legal effect of the treaty and did not call for any response from the other Contracting Parties. Thus, the ICJ did not have to take into consideration Romania’s declaratiUNCLOS, a State had the right to make declarations and statements when signing, ratifying or acceding to the Convention, provided these did not purport to exclude or modify the legal effect of the provisions of UNCLOS. However, the ICJ would apply the relevant provisions of UNCLOS as interpreted in accordance with article as such had no effectiveness on the ICJ’s interpretation. II. Judgment of the ICJ A. Effect of the Past Treaties The ICJ noted that the disagreement of the Parties mainly consisted in whether there already existed an agreed maritime boundary around Serpents’ Island for all delimitation purposes. They therefore disagreed also on the starting-point of the delimitation to be effected by the ICJ under this circumstance. To clarify the issues, the ICJ must distinguish between the following two matters: firstly, the startingpoint of the delimitation as a function of the land boundary and territorial sea boundary as already determined by the Parties; and secondly, whether there existed an agreed maritime boundary around Serpents’ Island and what was the nature of such a boundary, and whether it separated the territorial sea of Ukraine from the contine- the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.” Similarly, article concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.” A Review Concerning 2009 Maritime Delimitation in the Black Sea 245 ntal shelf and the exclusive economic zone of Romania.11 State Border Régime Treaty the endpoint of the State border between Romania and of Romania meets that of Ukraine. Then the ICJ referred to this point as “Point 1” of the delimitation of the two States. With respect to the question whether there existed an agreed maritime boundary around Serpents’ Island that separated the territorial sea of Ukraine from the continental shelf and the exclusive economic zone of Romania, the ICJ stressed that the border limit around Serpents’ Island between Romania and the USSR. Ukraine, as nautical-mile in other water. Consequently, there was no agreement in force delimiting the exclusive economic zone and the continental shelf between Romania and Ukraine. B. Relevant Coasts The effect of relevant coasts can have two different though closely related legal aspects in relation to the delimitation of the continental shelf and the exclusive economic zone. First, it is necessary to consider the relevant coasts in order to to these zones. Second, the relevant coasts need to be ascertained in order to check whether any disproportionality exists in the ratios of the coastal length of each State Party. In Romania’s view, the whole Romanian coast was relevant with the 11 Romania v. Ukraine case, para. 66. 246 China Oceans Law Review (Vol. 2009 No. 2) of the river boundary with Ukraine to the Sacalin Peninsula, had a dual function in relation to Ukraine, because it was an adjacent coast to the Ukrainian coast lying to the north, and it was an opposite coast to the coast of the Crimean Peninsula. Measkm. As to the Ukrainian relevant coast, the Parties took different views on it. The inappropriate for Ukraine to extend the coastline of Karkinits’ka Gulf, Yahorlyts’ka Gulf and Dnieper Firth as its relevant coast. Meanwhile, the coast of Serpents’ Island was so short that it could not be included in the calculation of the length of the Ukrainian relevant coast. According to the ICJ’s view, the length of the relevant However, the ICJ adjust- C. Delimitation Methodology and Selection of Base Points The ICJ considers establishing a provisional equidistance line between adjacent coasts and median line between opposite coasts of the two States concerned witn process. Meanwhile, the ICJ also notes that an equidistance line or median line will be drawn unless there are compelling reasons that makes this unfeasible in the particular case.16 The ICJ will at the next, second stage consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line or median line in order to achieve an equitable result. The ICJ has also made clear that 16 Romania v. Ukraine case, para. 116. A Review Concerning 2009 Maritime Delimitation in the Black Sea 247 when the line to be drawn covers several jurisdictions, the so-called “equitable principles/relevant circumstances method” may usefully be applied, and that this method is also suited to achieving an equitable result. Finally, at a third stage, the ICJ will determine a maritime ity of maritime areas is evident by comparison to the ratio of relevant coastal lengths. However, the ICJ emphasizes that this does not mean these respective sea out of the area is therefore the consequence of the delimitation, not vice versa” in the case concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) With respect to the base points, the focus of dispute between the two Parties lied in: whether the Sacalin Peninsula, the Musura Bay and the Sulina dyke on the Romanian coast, along with the island of Kubansky, Cape Tarkhankut, Cape Khersones and Serpents’ Island on the Ukrainian coast, could be taken into account as the base points. After analysis, the ICJ considered it appropriate to use base points on the Sacalin Peninsula and the Musura Bay. As to the Sulina dyke, the ICJ noted, on the one hand, no convincing evidence existed to prove that it complied with the requirement of “the outermost permanent harbor works” provided in article 11 of UNCLOS; while on the other hand, the landward end of the Sulina dyke, as it joined the Romanian mainland, should be used as a base point. On the coasts adjacent to Romania, the ICJ pointed out that it would use Tsyganka Island as a base point for delimitation, but the base point situated on the island of Kubansky was to be regarded as irrelevant for the purposes of the present delimitation. On the opposite coasts, the ICJ concluded that it would use Cape Tarkhankut and Cape Khersones as base points. Serpents’ Island, however, cannot be regarded regarded as a rock which “cannot sustain human habitation or economic life of their own,” and the ICJ therefore considered it inappropriate to use the rock as a base Case concerning territorial and maritime dispute between Nicaragua and Honduras in the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. China Oceans Law Review 248 (Vol. 2009 No. 2) point. D. Relevant Circumstances 1. Disproportion between Lengths of Coasts. Ukraine invoked the circumstance of disproportion between the lengths of the Parties’ coasts to claim the adjustment of the provisional equidistance line. Romania noted, despite the acknowledgment of the above fact, that in a maritime delimitation it was rare for the disparities between the Parties’ coasts to feature as a relevant circumstance. Moreover, in the present case, there was no manifest disparity in the respective coastal lengths of the two States. In any event, proportionality should be dealt with only after having idecircumstances approach”, and therefore should not be considered as relevant circumstances. The ICJ observed that there were no marked disparities between the relevant coasts of the two States that would require it to adjust the provisional equidistance line. 2. The Enclosed Nature of the Black Sea and the Delimitations Already Effected in the Region. Romania noted that the enclosed nature of the Black Sea should be taken into account as relevant circumstances, as well as the Agreement concerning the Delimitation of the Continental Shelf in the Black Sea between Tur- different views: on the one hand, the enclosed character of the Black Sea was not by itself a circumstance which ought to be regarded as relevant for delimitation purposes; on the other hand, the bilateral agreements could not affect the rights of third parties and therefore the existing maritime delimitation agreement in the BlacFinally, the ICJ agreed with Ukraine’s suggestion in its ruling. 3. Any Cutting Off Effect. In the preliminary observations of the case, Ukraine once pointed out that Romania’s equidistance line resulted in a two-fold cutoff of Ukraine’s maritime entitlements and asked for adjustment of the provisional equidistance line. First, Serpents’ Island could sustain an economic life of its own, 249 A Review Concerning 2009 Maritime Delimitation in the Black Sea ommodation for an active population. Therefore it should be regarded as an island, yet its maritime entitlements were dramatically truncated by allocating no continental shelf and no exclusive economic zone to it. Second, Romania’s equidistance line represented a fundamental encroachment on natural prolongation of continental shelf and sovereign rights in exclusive economic zones of Ukraine’s south-facing mainland coast. However, the ICJ saw no reason to adjust the provisional equidistance line, and pointed out that Serpents’ Island had no effectivités in delimitating the continental shelf and exclusive economic zones. Meanwhile, in this case, no geographical factors had made it necessary to adjust the provisional equidistance line. 4. The Conduct of the Parties (Oil and Gas Development, Fishing Activities and Naval Patrols). Ukraine argued that State activities in the relevant area constituted a relevant circumstance which needed to be considered. For example, in nd gas within the continental shelf and exclusive economic zone area and prior to effectivités or State activities, as a matter of legal principle, could constitute relevant circumstances to be taken into account for the purposes of maritime delimitation. Moreover, two of the three licences were issued after the critical date of the signature of the effectivités presented by Ukraine could not deny the existence of a “de facto and naval patrols reported by Ukraine were also subsequent to the critical date of With respect to the dispute between the two countries, on the whole, the ICJ supported the views of Romania and did not take account of the above-mentioned circumstances in the delimitation. 5. The Security Considerations of the Parties. Romania asserted that there was no evidence to suggest that the delimitation advanced by it would adversely affect Ukraine’s security interests, including Serpents’ Island, which has a territorial close to the Romanian coast and thus encroached on the security interests of Roma- China Oceans Law Review 250 (Vol. 2009 No. 2) one hand, the legitimate security considerations of the Parties concerned might play provisional equidistance line determined by the ICJ fully respected the legitimate security interests of either Party and thus there was no need to adjust the line on the basis of this consideration. III. Review of the Delimitation Case in the Black Sea Romania and Ukraine showed quite different attitudes towards the Judgment of the ICJ on the delimitation case in the Black Sea. The former believed that this was a win-win result, while the latter expressed its dissatisfaction. Moreover, Ukraine asserted that the most common method of equidistance was applied when the ICJ made the Judgment, but the relevant circumstances had not been taken into accve-mentioned Judgment of the ICJ, this doubt is rational to some degree, but there are also some misunderstandings in it. Principles and Relevant Circumstances Approach” Has Become a General Customary Law The equitable principles, due to their failure to provide any predictable rules for delimitation, have been subject to criticisms for a long time by their opponents, and the criticisms become fiercer because the ICJ has once been too flexible in the delimitating process. However, in fact, the ICJ has always stressed that the equitable principles should be the general international law and has made efforts to North Sea Continental Shelf Case (in this case, the ICJ argued that maritime delimitation shall be settled based on international law and agreements in accordance with the equitable principles, Tunisia / Libya Continental Shelf Libya / Malta Continental Shelf Greenland / Jan Mayen Case and other judicial cases, the ICJ has been enunciating A Review Concerning 2009 Maritime Delimitation in the Black Sea the specific connotation of the equitable principles constantly. Especially in the Qatar v. Bahrain Case, the ICJ formally proposed the equitable principles/ relevant circumstances rule. Cameroon v. Nigeria Case Nicaragua v. Honduras Delimitation Case and the Black Sea Delimitation Case. Obviously, the as a general customary law has been increasingly recognized by the international community. Broadly speaking, the equitable principles and the relevant circumstanwing aspects: to start from the equitable principles; to follow equitable procedures; to apply equitable delimitation methods and to ensure equitable delimitation results, etc. But it is worth noting that, although the ICJ denied the status of the equidistance and special circumstances approach as a customary law in the North Sea Continental Shelf and determine the delimitation method based on all the relevant circumstances method was too flexible, there were some disputes over the applicability of the Libya / Malta Continental Shelf Case, the attitude of the ICJ had undergone some changes, that is, it re-used the equidistance line as the provisional starting point of the delimitation and then made some adjustment based on the relevant circumstances. Especially in several recent delimitation cases, the ICJ noted that the provisional equidistance line changed the previous delimitation mode and given priority to the equidistance Nicaragua v. Honduras Delimitation Case, the relevant circumstances method], which is very similar to the equidistance/special drawing an equidistance line, then considering whether there are factors calling for Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, China Oceans Law Review 252 (Vol. 2009 No. 2) the adjustment or shifting of that line in order to achieve an ‘equitable result’.” Therefore, some scholars argued that the equitable principles and relevant circumstances approach has disappeared while the equidistance and special circumstances rule has prevailed. However, the ICJ explained the reasons for the adjustment mainly as follows: cter and the relative ease with which it can be applied. However, the equidistance method does not automatically have priority over other methods of delimitation and, in particular circumstances, there may be factors which make the application of the equidistance method inappropriate. In fact, in the Nicaragua v. Honduras Delimitation ICJ did not apply the equidistance method, but drew a bisector. The azimuth angle Then, the ICJ adjusted the trajectory of the line based on relevant circumstances. As mentioned before, in the Black Sea Delimitation Case, the ICJ re-stressed reasons in special circumstances. In fact, although the ICJ argued that the equitable principles/relevant circumstances rule with regard to the delimitation of the continental shelf and the exclusive economic zone is closely related to the equidistance/ special circumstances rule which is applicable to the delimitation of the territorial sea Qatar v. Bahrain Case and the two rules tended to be integrated to fferent maritime areas are essentially different from the premise on which the ICJ applies equidistance lines. B. The Effectivités of Islands in Delimitation In general, some unimportant islands will not be taken into account, whether in bilateral delimitation agreements or in some judicial judgments of the ICJ. For Robert Kolb, Case Law Equitable Maritime Delimitation: Digest and Commentaries, The A Review Concerning 2009 Maritime Delimitation in the Black Sea 253 endpoints or turning points of the boundary line and some other factors were determined, the effectivités of some small islands was neglected. In this case, Serpents’ Island of Ukraine is of the same nature. This issue had also caused controversy among the representatives during the Third United Nations Conference on the Law of the Sea. The controversy focused on whether it would give rise to inequitable situations if some rocks that are small in area and could not sustain human habitation were entitled to large areas of maritime space. Finally, the representatives made a that is, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” However, there were no provisions in UNCLOS concerning the specific effectivités of islands in maritime delimitation. In accordance with state practices and international judicial judgments, an island may have full effectivités, partial effectivités or no effectivités, which shall be determined based on its location and nature. Those islands located within the territorial sea of a State, or close to the mainland of a country, those to which both relevant States enjoy similar conditions, those belonging to an archipelagic State, or those important in location, large in size or heavily populated will usually have full effectivités in delimitation, such as Tsushima between Japan and South Korea. Sometimes, a country may confer full effectivités on some islands based on politics, economics and the development of bilateral relations between two countries. Some unimportant islands are often endowed with half effectivités, such as Seal Island of Canada in the Gulf of Maine Case; some islands that are far away from their mainland and close to the assumed median line between two countries are often conferred with partial effectivités by both parties, or do not serve as the base points in delimitation, but can enjoy only appropriate territorial sea. When an island is far away from its mainland and close to the territory of another country, it is often conferred with partial effectivités or no effectivités, such as the British Channel Islands in the Britain v. French Continental Shelf Case. Furthermore, some islands are generally conferred with no effectivités if they are small and far away from the mainland, and are not important to the country, or if their sovereignty is disputed. However, undeniably, due to the lack of rules of international law at present, some countries have established some islands far away from coasts as base points Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia, The H- 254 China Oceans Law Review (Vol. 2009 No. 2) of their territorial sea based on which straight baselines have been drawn. For exales off the coast as a base point. North Korea has even drawn the world’s longest issue, coastal States pursue the largest maritime jurisdiction based on their own understanding and their own interests. Therefore, the international community should further specify the rules on this issue based on the relevant provisions of UNCLOS, so as to facilitate equitable settlement of delimitation problems. C. Unapproved Treaties and Legal Flaws: Constitution Functionality In this case, Romanian representative Bogdan Aurescu pointed out that Serpe- er the island to Ukraine, which was then a part of the USSR. However, the transfer was not approved by Romania or the legislative body of the USSR at that time. nts’ Island. Romania had been protesting against such control all the time, requesting that the sovereignty of the island be reconsidered. Although the two countries to Ukraine, Romania requested that the ICJ should take some relevant historical factors into account when delimitating the boundary. In fact, the ICJ had rendered Judgments on some cases based on unapproved Libya v. Tunisia Case, the ICJ endowed the so-called Thomas J. Schoenbaum, Admiralty Maritime Law Li Yang, The International Court of Justice Held a Hearing on the Dispute over the Boundary in the Black Sea between Romania and Ukraine, at http://www.chinanews.com.cn/gj/gjzj A Review Concerning 2009 Maritime Delimitation in the Black Sea 255 interim agreement between Italy and France with legal value (at that time, Libya and Tunisia were under the control of France and Italy respectively). The ICJ noted that because there was no clear and consistent maritime boundary between the two countries for quite a long period of time and neither party had objected to the interim agreement formally, this agreement could be accepted when delimitating the continental shelf between the two countries due to historical reasons. In the Qatar v. Bahrain Case, the ICJ observed that Qatar shall have an entitlement constitute an accurate expression of the understanding of the parties at the time of signature; what’s more, the actions of the Sheikh of Qatar in Zubarah in that year could be deemed as his exercise of authority on his territory. Obviously, it was based on the recognition of the effectivités ties that the ICJ was able to avoid a thorny issue, namely the territorial entitlement in international law arising from occupation of territories by force before the UN Charter took effect. In that vein, the legal effectivités endowed by the ICJ in some unratified treaties or defective legal actions in some cases was intended to follow the stability principle, a critical principle in issues concerning territorial sovereignty, so as to leave intact the territorial pattern formed among the countries concerned over a long period of time. Such practice has also been embodied in uti possidetis juris. However, such basis for Judgments is not compelling and will, to some extent, challenge the authority of the ICJ. (Translator: LI Cun’an) In international law, it means that the boundary of a newly established country should be consistent with the one before the country becomes independent. See Bryan A. Garner, Black’s Law Dictionary