Maritime Delimitation in the Black Sea (Romania v. Ukraine)
OVERVIEW OF THE CASE
On 16 September 2004, Romania filed an Application instituting proceedings against Ukraine in respect of a dispute concerning “the establishment of a single maritime boundary between the two States in the Black Sea, thereby delimiting the continental shelf and the exclusive economic zones appertaining to them”. The Memorial of Romania and the Counter-Memorial of Ukraine were filed within the time-limits fixed by an Order of 19 November 2004. By an Order of 30 June 2006, the Court authorized the filing of a Reply by Romania and a Rejoinder by Ukraine and fixed 22 December 2006 and 15 June 2007 as the respective time-limits for the filing of those pleadings. Romania filed its Reply within the time-limit thus fixed. By an Order of 8 June 2007, the Court extended to 6 July 2007 the time-limit for the filing of the Rejoinder by Ukraine. The Rejoinder was filed within the time-limit thus extended.
Following public hearings held in September 2008, the Court rendered its Judgment in the case on 3 February 2009. On the basis of established State practice and of its own jurisprudence, the Court declared itself bound by the three-step approach laid down by maritime delimitation law, which consisted first of establishing a provisional equidistance line, then of considering factors which might call for an adjustment of that line and adjusting it accordingly and, finally, of confirming that the line thus adjusted would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas.
In keeping with this approach, the Court first established a provisional equidistance line. In order to do so, it was obliged to determine appropriate base points. After examining at length the characteristics of each base point chosen by the Parties for the establishment of the provisional equidistance line, the Court decided to use the Sacalin Peninsula and the landward end of the Sulina dyke on the Romanian coast, and Tsyganka Island, Cape Tarkhankut and Cape Khersones on the Ukrainian coast. It considered it inappropriate to select any base points on Serpents’ Island (belonging to Ukraine). The Court then proceeded to establish the provisional equidistance line as follows :
“In its initial segment the provisional equidistance line between the Romanian and Ukrainian adjacent coasts is controlled by base points located on the landward end of the Sulina dyke on the Romanian coast and south-eastern tip of Tsyganka Island on the Ukrainian coast. It runs in a south-easterly direction, from a point lying midway between these two base points, until Point A (with co-ordinates 44° 46′ 38.7ʺ N and 30°58′ 37.3ʺ E) where it becomes affected by a base point located on the Sacalin Peninsula on the Romanian coast. At Point A the equidistance line slightly changes direction and continues to Point B (with co-ordinates 44°44′ 13.4ʺ N and 31°10′ 27.7ʺ E) where it becomes affected by the base point located on Cape Tarkhankut on Ukraine’s opposite coasts. At Point B the equidistance line turns south-south-east and continues to Point C (with co-ordinates 44°02′ 53.0ʺ N and 31°24′ 35.0ʺ E), calculated with reference to base points on the Sacalin Peninsula on the Romanian coast and Capes Tarkhankut and Khersones on the Ukrainian coast. From Point C the equidistance line, starting at an azimuth of 185°23′ 54.5ʺ, runs in a southerly direction. This line remains governed by the base points on the Sacalin Peninsula on the Romanian coast and Cape Khersones on the Ukrainian coast.”
The Court then turned to the examination of relevant circumstances which might call for an adjustment of the provisional equidistance line, considering six potential factors : (1) the possible disproportion between coastal lengths ; (2) the enclosed nature of the Black Sea and the delimitations already effected in the region ; (3) the presence of Serpents’ Island in the area of delimitation ; (4) the conduct of the Parties (oil and gas concessions, fishing activities and naval patrols) ; (5) any potential curtailment of the continental shelf or exclusive economic zone entitlement of one of the Parties ; and (6) certain security considerations of the Parties. The Court did not see in these various factors any reason that would justify the adjustment of the provisional equidistance line. In particular with respect to Serpents’ Island, it considered that it should have no effect on the delimitation other than that stemming from the role of the 12-nautical-mile arc of its territorial sea.
Finally, the Court confirmed that the line would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas. The Court noted that the ratio of the respective coastal lengths for Romania and Ukraine was approximately 1:2.8 and the ratio of the relevant maritime areas was approximately 1:2.1.
In the operative clause of its Judgment, the Court found unanimously that :
“starting from Point 1, as agreed by the Parties in Article 1 of the 2003 State Border Régime Treaty, the line of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea shall follow the 12-nautical-mile arc of the territorial sea of Ukraine around Serpents’ Island until Point 2 (with co-ordinates 45°03′ 18.5ʺ N and 30°09′ 24.6ʺ E) where the arc intersects with the line equidistant from Romania’s and Ukraine’s adjacent coasts. From Point 2 the boundary line shall follow the equidistance line through Points 3 (with co-ordinates 44°46′ 38.7ʺ N and 30°58′ 37.3ʺ E) and 4 (with co-ordinates 44° 44′ 13.4ʺ N and 31° 10′ 27.7ʺ E) until it reaches Point 5 (with co-ordinates 44° 02′ 53.0ʺ N and 31° 24′ 35.0ʺ E). From Point 5 the maritime boundary line shall continue along the line equidistant from the opposite coasts of Romania and Ukraine in a southerly direction starting at a geodetic azimuth of 185°23′ 54.5ʺ until it reaches the area where the rights of third States may be affected.”
Judgment of 3 February 2009