A Review Concerning 2009 Maritime Delimitation in the Black Seaa

A Review Concerning 2009 Maritime Delimitation in the Black Sea 239

A Review Concerning 2009 Maritime Delimitation in the Black Sea

ZHANG Weibin*

Abstract: On 3 February 2009, the International Court of Justice (ICJ) render-ed a Judgment on the Romania v. Ukraine case. In this case, the ICJ confirmed the“equitable principles and relevant circumstances approach” and applied the equidis-tance method to delimitation. Meanwhile, the ICJ insisted that although the equidis-tance method should be a primary provisional step for delimitation, it did not demo-nstrate 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-d in the delimitation, the ICJ defined Serpents’ Island as a rock rather than an islan-d, which reflected the recent tendency in maritime delimitation. However, Ukraine was not satisfied with the ICJ Judgment, which demonstrated that there were still 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 2004, Romania lodged a lawsuit before the International Court of Justice (ICJ) and requested the delimitation of the continental shelves and the exclusive economic zones between Ukraine and Romania in the Black Sea. On 3 February 2009, 15 judges of the ICJ rendered a final Judgment unanimously. In accordance with the Judgment, about 80% of the areas where both parties had a dispute shall belong to Romania. Meanwhile, Serpents’ Island was defined as a rock rather than an island, 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 Econo- mics 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

China Oceans Law Review (Vol. 2009 No. 2)240

of this case reflected a new tendency in maritime delimitation. However, there are still some issues that need to be clarified.

I. Preliminary Legal Issues

A. Subject-matter of the Dispute

The Black Sea, an enclosed sea containing rich oil and natural gas resources on its continental shelf, is situated between 40º56' and 46º33' N and between 27º27' and 41º42' E, with a surface area of some 432,000 sq km. It is connected with the 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 Sea. Serpents’ Island, approximately 20 nm to the east of the Danube delta, has a l-and area of about 0.17 sq km and a circumference of approximately 2,000 m. Serp-ents’ Island was incorporated into the USSR in accordance with a protocol between Romania and the USSR in 1948. The dispute between Romania and Ukraine conce-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 neg-otiations,” Romania and Ukraine signed the Treaty on Relations of Co-operation and Good Neighbourliness (Treaty on Good Neighbourliness and Co-operation) between Romania and Ukraine on 2 June 1997 and an Additional Agreement, conc-luded by exchange of letters of the Ministers of Foreign Affairs of the two States. Both entered into force on 22 October 1997. By these agreements, “the two Statesassumed 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 continen-tal shelf and the exclusive economic zones of the two countries in the Black Sea.”At the same time, paragraph 4(g) of the Additional Agreement requires that negotia-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 Good Neighbourliness and Co-operation. Between January 1998 and September 2004, 24 rounds of negotiations were held on the subject of the establishment of the maritime boundary, as well as 10 rounds at an expert level. However, no result 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,


especially the standards set forth in paragraph 4 of the Additional Agreement.1

B. Jurisdiction of the ICJ and Its Scope

Romania invoked as a basis for the ICJ’s jurisdiction article 36(1) of the Statu-te of the ICJ and paragraph 4(h) of the Additional Agreement,2 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 the Black Sea in a reasonable period of time, but not later than 2 years since their 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 conditions set forth in paragraph 4(h) of the Additional Agreement had been met because the negotiation had lasted for more than 2 years and the Treaty between R-omania and Ukraine on the Romanian – Ukrainian State Border Régime, Collabora-tion and Mutual Assistance on Border Matters (hereinafter the “2003 State Border Régime Treaty”) entered into force on 27 May 2004.3

In the Appeal, Romania held that “the initial segment of the boundary separati-ng the Romanian exclusive economic zone and continental shelf from the Ukrainianterritorial waters around Serpents’ Island between Point F and Point X was establis-hed by the 2003 State Border Régime Treaty.” In the view of Romania, the primarymission for the ICJ to conduct the delimitation was to confirm the boundary betwe-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, Judgment of 3 February 2009 (hereinafter Romania v. Ukraine case), paras. 18~19.

2　 Article 36(1) provides that “The jurisdiction of the ICJ comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

3　 Romania v. Ukraine case, para. 21.


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 mariti-me zones pertaining to either of the Parties and in particular their respective territo-rial 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 (Nic-aragua v. Honduras) in 2007. However, because the 2003 State Border Régime Tr-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 cover-ed only the delimitation of their continental shelf and exclusive economic zones.4

C. Applicable Law

In the Appeal, Romania summarized the laws applicable to settlement of the dispute and invoked some provisions in the 1997 Additional Agreement, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) signed in the Montego Bay to which both Romania and Ukraine are parties, as well as other relevant instruments binding on both parties. Specifically speaking, articles 74 and 83 of UNCLOS are relevant to the delimitation of the exclusive economic zone 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 effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”. Ukraine agreed with the view and argued that certain specific rules which have become well established in the jurisprudence of the ICJ shall also be taken into account.5

What’s more, in light of UNCLOS being a framework convention, Romania argued that the principles listed in paragraph 4 of the 1997 Additional Agreement were applicable both to the diplomatic negotiations between the two States and for

4　 Romania v. Ukraine case, paras. 24~30.5　 Romania v. Ukraine case, paras. 36~39.


the purposes of any eventual settlement of the dispute by the ICJ. These principles included: (a) the principle stated in article 121 (Regime of Islands) of UNCLOS 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 in the 1997 Additional Agreement should not be applied to the subsequent judicial 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.7

Romania further argued that the content of the 1949, 1963 and 1974 Procès-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 Good Neighbourliness and Co-operation and the Additional Agreement in 1997, 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 declara-tion when Romania signed and ratified UNCLOS, as well as article 121(3) of UNC-LOS, 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.8

With regard to the views of Romania, Ukraine argued that the above agreeme-

6　 Romania v. Ukraine case, para. 33.7　 Romania v. Ukraine ease, para. 41.8　 Romania v. Ukraine case, para. 35.


nts did not constitute provisions mentioned in articles 74(4) and 83(4) of UNCLOS9 because they were not agreements delimiting the continental shelf and exclusive economic zones. With regard to the declaration made by Romania with respect to article 121(3) upon the signature and ratification of UNCLOS and the reference to article 121(3) of UNCLOS in the Additional Agreement of 1997, Ukraine pointedout the difference between a reservation and a declaration which did not modify thelegal effect of the treaty and did not call for any response from the other Contractin-g Parties. Thus, the ICJ did not have to take into consideration Romania’s declarati-on. Regarding Romania’s declaration, the ICJ emphasized that under article 310 ofUNCLOS, 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 31 of the Vienna Convention on the Law of Treaties of 1969. Romania’s declaration as such had no effectiveness on the ICJ’s interpretation.10

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 starting-point of the delimitation as a function of the land boundary and territorial sea boun-dary as already determined by the Parties; and secondly, whether there existed anagreed maritime boundary around Serpents’ Island and what was the nature of sucha boundary, and whether it separated the territorial sea of Ukraine from the contine-

9　 Article 74(4) of UNCLOS provides that “where there is an agreement in force between 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 83(4) of UNCLOS stipulates that “where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.”

10 Romania v. Ukraine case, paras. 40~42.


ntal shelf and the exclusive economic zone of Romania.11

In fact, these two matters involved the effect of the Procès-Verbaux of 1949, 1963 and 1974, as well as the 1949 and 1961 Treaties between Romania and the USSR and the 2003 State Border Régim Treaty between Romania and Ukraine. After examining the above treaties, the ICJ concluded that in the 1949 Procès-Verb-aux it was agreed that from the point represented by border sign 1439 the boundary between Romania and the USSR would follow the 12-nautical-mile arc around Serpents’ Island, without any endpoint being specified. Under article 1 of the 2003 State Border Régime Treaty the endpoint of the State border between Romania and Ukraine was fixed at the point of the intersection where the territorial sea boundary of Romania meets that of Ukraine. Then the ICJ referred to this point as “Point 1” of the delimitation of the two States.12

With respect to the question whether there existed an agreed maritime bounda-ry around Serpents’ Island that separated the territorial sea of Ukraine from the con-tinental shelf and the exclusive economic zone of Romania, the ICJ stressed that the 1949 Procès-Verbaux related only to the matters of following the 12-nautical-mile border limit around Serpents’ Island between Romania and the USSR. Ukraine, asone of the successor States of the USSR, did not lose the right to claim beyond 12-nautical-mile in other water. Consequently, there was no agreement in force delimi-ting the exclusive economic zone and the continental shelf between Romania and Ukraine.13

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 exclusiv-e economic zone. First, it is necessary to consider the relevant coasts in order to determine what constitutes in the specific context of a case the overlapping claims to these zones. Second, the relevant coasts need to be ascertained in order to check the fair demarcation results, in the third and final stage of the delimitation process, 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. 43.12　 Romania v. Ukraine case, para. 66.13　 Romania v. Ukraine case, para. 76.


total length being 269.67 km (baselines 204.90 km). However, the total length of Romania’s coast, according to Ukraine, was 185 km if measured more generally and was 258 km if taking into account the sinuosities along that coast (baselines 204 km). The ICJ noted that the first segment of the Romanian coast, from the last point 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 tothe north, and it was an opposite coast to the coast of the Crimean Peninsula. Meas-ured by the ICJ, the length of the relevant coast of Romania was approximately 248 km.14

As to the Ukrainian relevant coast, the Parties took different views on it. The length of the relevant Ukrainian coast, as perceived by Romania, was 388.14 km (baselines 292.63 km), while Ukraine concluded that the total length of its relevant coast was 1,058 km (baselines 664 km). However, the ICJ pointed out that it was 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 coast of Ukraine was approximately 705 km and the ratio for the coastal lengths between Romania and Ukraine was approximately 1:2.8.15 However, the ICJ adjust-ed the ratio to 1:2.1 in the final Judgment.

C. Delimitation Methodology and Selection of Base Points

The ICJ considers establishing a provisional equidistance line between adjace-nt coasts and median line between opposite coasts of the two States concerned wit-hout consideration of any relevant circumstances in the first stage of the delimitatio-n 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

14　 Romania v. Ukraine case, paras. 87~88.15　 Romania v. Ukraine case, paras. 101~104.16　 Romania v. Ukraine case, para. 116.


when the line to be drawncovers several jurisdictions, the so-called “equitable principles/relevant circumstan-ces method” may usefully be applied, and that this method is also suited to achievi-ng an equitable result.17 Finally, at a third stage, the ICJ will determine a maritime border by taking into account all the relevant circumstances, as well as a final checkfor an equitable outcome which entails a confirmation that no great disproportional-ity of maritime areas is evident by comparison to the ratio of relevant coastal lengt-hs.18 However, the ICJ emphasizes that this does not mean these respective sea areas should be proportionate to coastal lengths – as the ICJ has said “the sharing 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) in 1993.19

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 theRomanian coast, along with the island of Kubansky, Cape Tarkhankut, Cape Khers-ones and Serpents’ Island on the Ukrainian coast, could be taken into account as thebase 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 ofUNCLOS; while on the other hand, the landward end of the Sulina dyke, as it join-ed the Romanian mainland, should be used as a base point.20

On the coasts adjacent to Romania, the ICJ pointed out that it would use Tsyg-anka Island as a base point for delimitation, but the base point situated on the islandof Kubansky was to be regarded as irrelevant for the purposes of the present delimi-tation. 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 as an island as it meets the conditions of article 121(3) of UNCLOS and should beregarded as a rock which “cannot sustain human habitation or economic life of thei-r own,” and the ICJ therefore considered it inappropriate to use the rock as a base

17　 Case concerning territorial and maritime dispute between Nicaragua and Honduras in the Caribbean Sea (hereinafter Nicaragua v. Honduras case), Judgment of 8 October 2007,

para. 271.18　 Romania v. Ukraine case, para. 122.19　 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v.

Norway), Judgment, I. C. J. Reports 1993, p. 67, para. 64.20　 Romania v. Ukraine case, paras. 138~141.


point.21

D. Relevant Circumstances

1. Disproportion between Lengths of Coasts. Ukraine invoked the circumst-ance of disproportion between the lengths of the Parties’ coasts to claim the adjust-ment of the provisional equidistance line. Romania noted, despite the acknowledg-ment 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 thepresent case, there was no manifest disparity in the respective coastal lengths of thetwo States. In any event, proportionality should be dealt with only after having ide-ntified the line resulting from the application of the “equitable principles and relevant circumstances approach”, and therefore should not be considered as relevant circu-mstances. The ICJ observed that there were no marked disparities between the rele-vant coasts of the two States that would require it to adjust the provisional equidist-ance line.22

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-key and the USSR in 1978 and the Agreement between Turkey and Bulgaria on thedetermination of the boundary in 1997, which had effect in this area. Ukraine held 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 ofthird parties and therefore the existing maritime delimitation agreement in the Blac-k sea could not influence the present dispute.23 Finally, the ICJ agreed with Ukrain-e’s suggestion in its ruling.

3. Any Cutting Off Effect. In the preliminary observations of the case, Ukrai-ne once pointed out that Romania’s equidistance line resulted in a two-fold cut-off 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,

21　 Romania v. Ukraine case, para. 149.22　 Romania v. Ukraine case, para. 168.23　 Romania v. Ukraine ease, paras. 172~173.


with vegetation, sufficient supply of fresh water and appropriate buildings and acc-ommodation for an active population. Therefore it should be regarded as an island,yet its maritime entitlements were dramatically truncated by allocating no continen-tal shelf and no exclusive economic zone to it. Second, Romania’s equidistance line represented a fundamental encroachment on natural prolongation of continental sh-elf and sovereign rights in exclusive economic zones of Ukraine’s south-facing ma-inland 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 co-ntinental shelf and exclusive economic zones. Meanwhile, in this case, no geograp-hical factors had made it necessary to adjust the provisional equidistance line.24

4. The Conduct of the Parties (Oil and Gas Development, Fishing Activiti-es and Naval Patrols). Ukraine argued that State activities in the relevant area con-stituted a relevant circumstance which needed to be considered. For example, in 1993, 2001 and 2003 Ukraine licensed activities relating to the exploration of oil a-nd gas within the continental shelf and exclusive economic zone area and prior to2011, Romania never protested. However, Romania did not consider that effectivitésor State activities, as a matter of legal principle, could constitute relevant circumsta-nces 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 1997 Addition Agreement, to which Romania consistently objected. Thus, the twoParties did not reflect a tacit agreement, so that the effectivités presented by Ukraine could not deny the existence of a “de facto line”. In addition, the fishing activities and naval patrols reported by Ukraine were also subsequent to the critical date of 1997 and as such were irrelevant to delimitation purposes.25 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 af-fect Ukraine’s security interests, including Serpents’ Island, which has a territorial sea of 12 nautical miles. In contrast, Ukraine’s delimitation line ran unreasonably close to the Romanian coast and thus encroached on the security interests of Roma-nia. The ICJ confined the consideration of security interests to two aspects: on the

24　 Romania v. Ukraine case, paras. 199~201.25　 Romania v. Ukraine case, paras. 193~196.


one hand, the legitimate security considerations of the Parties concerned might play an important role in determining the final delimitation line; on the other hand, the 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.26

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 thiswas a win-win result, while the latter expressed its dissatisfaction. Moreover, Ukra-ine 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 acc-ount, and that the Judgment reflected more interests of Romania. Based on the abo-ve-mentioned Judgment of the ICJ, this doubt is rational to some degree, but there are also some misunderstandings in it.

A. From Principles to Specific Rules: the “Equitable 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 make these principles more established. From the 1969 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, with all the relevant circumstances taken into account) to the 1982 Tunisia / Libya Continental Shelf Case, the 1985 Libya / Malta Continental Shelf Case and the 1993 Greenland / Jan Mayen Case and other judicial cases, the ICJ has been enunciating

26　 Romania v. Ukraine case, para. 204.


the specific connotation of the equitable principles constantly. Especially in the 2001 Qatar v. Bahrain Case, the ICJ formally proposed the equitable principles/relevant circumstances rule.27 Subsequently, this specific rule and method was conf-irmed successively in the 2002 Cameroon v. Nigeria Case28, the 2007 Nicaragua v. Honduras Delimitation Case29 and the Black Sea Delimitation Case. Obviously, the equitable principles have evolved from principles to specific rules and their status as a general customary law has been increasingly recognized by the international community. Broadly speaking, the equitable principles and the relevant circumstan-ce approach have become more established, which are mainly reflected in the follo-wing 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 equidistan-ce and special circumstances approach as a customary law in the North Sea Contin-ental Shelf Case in 1969 and stressed that it shall start from the equitable principles and determine the delimitation method based on all the relevant circumstances when dealing with specific delimitation cases. However, because this delimitation method was too flexible, there were some disputes over the applicability of the equitable principles. However, since the 1985 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 shall be determined first in the delimitation. To some degree, this seemed to have changed the previous delimitation mode and given priority to the equidistance method. Moreover, in the 2007 Nicaragua v. Honduras Delimitation Case, the ICJ reiterated in particular that “[t]his method [meaning the equitable principles/relevant circumstances method], which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, then considering whether there are factors calling for

27　 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (hereinafter Qatar v. Bahrain case), Judgment of 16 March 2001, para. 231.

28　 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, Judgment of 10 October 2001, para. 288.

29　 Nicaragua v. Honduras case, para. 271.


the adjustment or shifting of that line in order to achieve an ‘equitable result’.”30 Therefore, some scholars argued that the equitable principles and relevant circumst-ances approach has disappeared while the equidistance and special circumstances rule has prevailed.31

However, the ICJ explained the reasons for the adjustment mainly as follows: the equidistance method has a certain intrinsic value because of its scientific chara-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 an-d, in particular circumstances, there may be factors which make the application ofthe equidistance method inappropriate.32 In fact, in the Nicaragua v. Honduras Delimitation Case, in view of the specific geographical situation of the region, the ICJ did not apply the equidistance method, but drew a bisector. The azimuth angle was 70°14'41.25'' degrees.33 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 that the provisional equidistance line shall not apply first if there were compelling reasons in special circumstances. In fact, although the ICJ argued that the equitableprinciples/relevant circumstances rule with regard to the delimitation of the contin-ental shelf and the exclusive economic zone is closely related to the equidistance/special circumstances rule which is applicable to the delimitation of the territorial sea34 in the 2001 Qatar v. Bahrain Case and the two rules tended to be integrated tosome degree; however, the two specific rules that are applicable to delimitating di-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. Forexample, in the 1958 Bahrain and Saudi Arabia Delimitation Agreement, when the

30　 Nicaragua v. Honduras case, para. 271.31　 Robert Kolb, Case Law Equitable Maritime Delimitation: Digest and Commentaries, The

Hague: Martinus Nijhoff Publishers, 2003, pp. 536~537.32　 Nicaragua v. Honduras case, paras. 271~272.33　 Romania v. Ukraine case, para. 298.34　 Qatar v. Bahrain case, para. 231.


endpoints or turning points of the boundary line and some other factors were deter-mined, 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 am-ong the representatives during the Third United Nations Conference on the Law ofthe Sea. The controversy focused on whether it would give rise to inequitable situa-tions 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 acompromise resulting in the restrictive provisions in article 121(3) of UNCLOS, that is, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”35 Howev-er, 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 bedetermined based on its location and nature. Those islands located within the territ-orial sea of a State, or close to the mainland of a country, those to which both relev-ant States enjoy similar conditions, those belonging to an archipelagic State, or tho-se 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 mainl-and and close to the assumed median line between two countries are often conferre-d with partial effectivités by both parties, or do not serve as the base points in deli-mitation, 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

35　 Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia, The H- ague: Martinus Nijhoff Publishers, 2004, pp. 199~200.


of their territorial sea based on which straight baselines have been drawn. For exa-mple, Vietnam has drawn a straight baseline using a small island 161.8 nautical mi-les off the coast as a base point. North Korea has even drawn the world’s longest straight baseline, which is up to 245 nautical miles long. Obviously, these standardsfor determining the baselines of territorial sea are not unified, which will undoubte-dly increase the difficulty in solving delimitation problems. However, neither theConvention on the Territorial Sea and the Contiguous Zone (1958) nor the UNCL-OS (1982) specifies the length of the straight baselines of coastal States (only some requirements or principles are provided in article 7(3) and 7(6) of UNCLOS).36 As the ICJ and arbitral tribunals have so far, given no specific instructions on this issue, coastal States pursue the largest maritime jurisdiction based on their own understanding and their own interests. Therefore, the international community sho-uld further specify the rules on this issue based on the relevant provisions of UNC-LOS, 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-

nts’ Island, which covered an area of only 0.17 sq km, was part of Romania prior to1948. However, subsequently, through a treaty, the USSR forced Romania to transf-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. After the disintegration of the USSR in 1991, Ukraine took actual control of Serpe-nts’ Island. Romania had been protesting against such control all the time, requesti-ng that the sovereignty of the island be reconsidered. Although the two countries signed a boundary treaty in 2003 and confirmed that Serpents’ Island shall belong to Ukraine, Romania requested that the ICJ should take some relevant historical fa-ctors into account when delimitating the boundary.37

In fact, the ICJ had rendered Judgments on some cases based on unapproved treaties in the past. In the 1982 Libya v. Tunisia Case, the ICJ endowed the so-called

36　 Thomas J. Schoenbaum, Admiralty Maritime Law, New York: Thomson / West, 2004, pp. 30~31.

37　 Li Yang, The International Court of Justice Held a Hearing on the Dispute over the Bounda- ry in the Black Sea between Romania and Ukraine, at http://www.chinanews.com.cn/gj/gjzj /news/2008/09-03/1369063.shtml, 7 April 2009.


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.38 In the 2001 Qatar v. Bahrain Case, the ICJ observed that Qatar shall have an entitlement to the territory of Zubarah on the account that signed but unratified treaties may 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.39

Obviously, it was based on the recognition of the effectivités of unratified trea-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.40 However, such basis for Judgments is not compelling and will, to some extent, challenge the authority of the ICJ.

(Translator: LI Cun’an)

38　 Case concerning the continental shelf (Tunisia/Libya Arab Jamahiriya), Judgment of 24 February 1982, para. 71.

39　 Qatar v. Bahrain case, paras. 89~96.40　 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, New York: Thomson / West, 1999, p. 1544.

A Review Concerning 2009 Maritime Delimitation in the Black Seaa

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