THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL Th e International Journal of LAW Marine and Coastal Law 25 (2010) 115–141 brill.nl/estu
Current Legal Developments International Court of Justice
Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) Judgement of 3 February 2009
Introduction*
Th e Case concerning maritime delimitation in the Black Sea (Romania v. Ukraine)1 was decided unanimously on 3 February 2009 by the International Court of Justice (the Court), marking the latest judgment in a growing body of case law on maritime boundary delimitation by the Court. Th e case was fi led by Romania against Ukraine on 16 September 2004, following twenty- four rounds of unsuccessful negotiations between 1998–2004 for delimita- tion of the maritime area in the northwestern corner of the Black Sea, that included Serpents’ Island.2 Th e Court was requested to establish a single mar- itime boundary between the continental shelf and exclusive economic zones (EEZ) of the Parties. Th e only signifi cant geographic formation to potentially aff ect the drawing of the fi nal maritime delimitation line was the presence of Serpents’ Island, which according to Romania was a “rock”,3 and according to Ukraine an “island”.4 In its fi nal award, the Court drew a maritime boundary based on “estab- lished practice”, drawing a provisional equidistance line between the adjacent
* Th e author thanks Richard Barnes and Teoman Uykur for their helpful comments. 1 Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) Judgment of 3 February 2009. (Hereafter “Judgment”). Available from
© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157180809X12583617932301 116 N. Oral / Th e International Journal of Marine and Coastal Law 25 (2010) 115–141 and opposite coasts of the Parties, making adjustments based on relevant fac- tors to achieve an equitable result, which was then assessed on the basis of proportionality. Th e Court emphasized the importance of determining the relevant coasts of Ukraine and Romania, reiterating two important principles: that the land dominates the sea and that the role of delimitation is to resolve the claims of States where their coastal projections overlap by drawing a delimitation line. After identifi cation of the relevant coasts and maritime area, the Court found no applicable relevant factors/special circumstances requir- ing adjustment of the provisional maritime boundary drawn. Although the case presented an opportunity for the Court to shed legal light on one of the more ambiguous and in some cases contentious questions in the law of the sea, i.e., the distinction between an “island” and a “rock” under Article 121(3) of the 1982 United Nations Law of the Sea Convention5 (hereafter the LOSC), the Court declined the invitation and excluded Ser- pents’ Island from its fi nal award on other grounds.
Background
Th e Black Sea is a semi-enclosed sea within the meaning of LOSC Article 122. Connected to the Mediterranean Sea by the narrow Turkish Straits, it has a total surface area of 432,000 km2 (including the Azov Sea). Th e geography of the Black Sea is uncomplicated, with no complex island features or contested areas of sovereignty. Maritime boundary delimitation in the Black Sea, with the exception of the recent case between Ukraine and Romania, had been concluded by a series of bilateral agreements between the Black Sea coastal States, leaving no area of the Black Sea as high seas. Th e history of the current dispute dates back to 1947, following World War II, and originally involved the former USSR and Romania. However, follow- ing the historic dissolution of the former USSR in 1991, Ukraine acquired a long stretch of coastal area along the north-western portion of the Black Sea, from the mouth of the Danube all the way to the Crimea Peninsula, that also included Serpents’ Island.6 What should have otherwise presented a fairly
5 United Nations Convention on the Law of the Sea (done at Montego Bay), 10 December 1982, in force 16 November 1996, (1982) 21 International Legal Materials 1261. 6 Th e Parties did not contest the ownership of Serpents’ Island, which had been confi rmed by the Parties in 1997. Th e Parties, in the 1997 Additional Agreement, had agreed that one of the principles to be applied to the negotiation of the maritime delimitation included non-contes- tation of territorial sovereignty. Romania, nevertheless, included a lengthy historical back- ground to the transfer of Serpents’ Island from its own sovereignty to that of the former USSR in 1948 as being “illegal”, resulting in the inequitable loss of 1600 km2 of Romanian maritime