NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SEMESTER

(JULY-NOVEMBER 2019)

PUBLIC INTERNATIONAL LAW

Continuous Assessment - I

“Maritime Delimitation in the Black Sea

(Romania v. Ukraine)”

SUBMITTED BY: SUBMITTED TO:

SHUBHENDU SHEKHAR MR. SARTHAK MISHRA

B.A., LL. B (HONS.) ASSISTANT PROFESSOR

U.G - V SEMESTER FACULTY OF LAW

ROLL NUMBER- 1590

 CASE ANALYSIS

Maritime Delimitation in the Black Sea

(Romania v. Ukraine)

FACTS:.
a) In 1997, Romania and Ukraine signed a treaty Additional Agreement constituted by
an exchange of letters between the Ministers for Foreign Affairs of Romania and
Ukraine which both states "reaffirm that the existing border between them is
inviolable and therefore, they shall refrain, now and in future, from any attempt
against the border, as well as from any demand, or act of, seizure and usurpation of
part or all the territory of the Contracting Party".
b) Both sides agreed that if no resolution on maritime borders could be reached within 2
years; either side could seek a final ruling from the International Court of Justice.
c) On 16 September 2004 Romania filed in the Registry of the Court an Application
dated 13 September 2004, instituting proceedings against Ukraine.
d) In its Application, Romania seeks to found the jurisdiction of the Court on the
provisions of paragraph 4 (h) of the Additional Agreement1.

PROCEDURAL HISTORY
THE HAGUE, 3 February 2009. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, rendered its Judgment in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine)2.

ISSUE
The dispute between Romania and Ukraine concerns the establishment of a single maritime
boundary delimiting the continental shelf and exclusive economic zones between the two
States in the Black Sea.

CONTENTION OF ROMANIA
a) Articles 74 and 83 of UNCLOS are relevant for the delimitation of the exclusive
economic zone and the continental shelf, respectively. Their texts are identical; the

1
B David J, & CG Lathrop, , Maritime Delimitation in the Black Sea (Romania v. Ukraine), 103 nos 3 The
American Journal of International Law ( ed., 2009).
2
B Michael A, & EJ Sanchez, , International Law of the Sea, 44, no. 1 The International Lawyer ( ed., 2010).
 only difference being that Article 74 refers to the exclusive economic zone and
Article 83 to the continental shelf.

1. The delimitation of the exclusive economic zone [the continental shelf]

between States with opposite or adjacent coasts shall be effected by agreement on
the basis of international law, as referred 17 to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States

concerned shall resort to the procedures provide for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a

spirit of understanding and co-operation, shall make every effort to enter into
provisional arrangements of a practical nature and, during this transitional period,
not to jeopardize or hamper the reaching of the final agreement. Such
arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions

relating to the delimitation of the exclusive economic zone [the continental shelf]
shall be determined in accordance with the provisions of the agreement.”

b) Romania states that according to the requirements of equity—as it results from

Articles 74 and 83 of the Convention on the Law of the Sea — the uninhabited islands
without economic life can in no way affect the delimitation of the maritime spaces
belonging to the mainland coasts of the coastal States. Ukraine’s acceptance of the
reference to Article 121 as one of the principles to be applied in delimitation clearly
indicates that the two States agreed in 1997 that Serpents’ Island could receive no
other effect in addition to those effects already produced by it on the delimitation of
the territorial seas of the two Parties.
c) Romania states that the Parties concur in the view that the Procès-Verbaux concluded
between Romania and the USSR in 1949, 1963 and 1974 are agreements which are
legally binding on the Parties. Romania contends that these agreements, which
establish the initial segment of the maritime boundary, should be taken into account as
agreements relating to the delimitation within the meaning of Articles 74, paragraph
4, and 83, paragraph 4, of UNCLOS.
 d) In 2003 State Border Régime Treaty3 which delimited the maritime boundary up to
the outer limit of the territorial sea at the point of intersection of Romania’s territorial
sea with the 12-nautical mile arc drawn around Serpents’ Island. Romania argues that
the principles recognized by the Parties in the
e) 1997 Additional Agreement are applicable both to the diplomatic negotiations
between the two States and for the purposes of any eventual settlement of the dispute
by the Court. These principles are listed in paragraph 4 of the 1997 Additional
Agreement.

CONTENTION OF UKRAINE
a) Ukraine contends that the Court is obliged to decide disputes in accordance with
international law, as laid down in Article 38, paragraph 1, of the Statute that
“applicable body of rules of international law comprises principally the provisions of
UNCLOS and certain specific rules which have become well established in the
jurisprudence of the Court”.
b) With regard to the declaration of Article 121 upon the signature and ratification of
UNCLOS, Ukraine points out the difference between a declaration and a reservation,
and states that a declaration “does not modify the legal effect of the treaty in
question” and does not call for any response from the other Contracting Parties. For
Ukraine, this assertion is groundless.
c) Ukraine further argues that the 1949, 1963 and 1974 Procès-Verbaux and the 1997
Additional Agreement do not constitute agreements mentioned in Articles 74,
paragraph 4, and 83, paragraph 4, of UNCLOS because they were not agreements
delimiting the continental shelf and exclusive economic zones.
d) According to Ukraine, the 1997 Additional Agreement is an international treaty
binding upon the Parties, however the principles enunciated therein were to form the
basis on which the Parties were to negotiate a delimitation agreement, but they were
not agreed by the Parties as applying to the subsequent judicial proceedings.

APPLICABLE LAW/ RULE

a) The Court turns to the applicable law and observes that, while the principles listed in
subparagraphs 4 (a) to (e) of the Additional Agreement may apply to the extent that

3
Article 1 of the 2003 Treaty provides the coordinates of what the Court and Ukraine call Point 1. The text of
Article 1 is quoted at paragraph 63.
 they are part of the relevant rules of international law, the principles of maritime
delimitation to be applied by the Court in this case are determined by paragraph 1 of
Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS).
b) Court observes that under Article 310 of UNCLOS, a State is not precluded from
making declarations and statements when signing, ratifying or acceding to the
Convention, provided these do not purport to exclude or modify the legal effect of the
provisions of UNCLOS. Court will therefore apply the relevant provisions of
UNCLOS as interpreted in its jurisprudence, in accordance with Article 31 of the
Vienna Convention on the Law of Treaties of 23 May 1969. Romania’s declaration as
such has no bearing on the Court’s interpretation4.

APPLICATION/ ANALYSIS
The judgment given by the International Court of Justice is according to the fair and
reasonable analysis of all the concerned laws and thus hereby I support the adjudication. In
order to deliver its judgment, the Court first stated that the Coast of Serpent Island is so short
that it makes no real difference to the overall length of the relevant coasts of the Parties and
second followed the three – step method5. At the first stage, the Court established a
provisional delimitation line, using methods that are geometrically objective and appropriate
for the geography of the area in which the delimitation is to take place. As for the
delimitation between adjacent coasts is concerned, an equidistance line will be drawn unless
there are compelling reasons that make this unfeasible in the case. As for the opposite coasts
are concerned, the provisional delimitation line will consist of a median line between the two
coasts. No legal consequences flow from the use of the terms “median line” and
“equidistance line” since the method of delimitation is the same for both. At the second stage,
the Court considered whether there are factors calling for the adjustment or shifting of the
provisional equidistance line in order to achieve an equitable result. Finally, at the third stage
the Court checked if the line leads to an inequitable result.

Following the three – steps method, the Court claims that Serpent Island is not a special
circumstance and has no effect on the delimitation between Romania and Ukraine and is just
entitled in a 12-nm territorial sea. What is interesting in the judgment is that the Court does

4
U Nations, , Case Concerning Maritime Delimitation in the Black Sea (Romania V. Ukraine) Order of 8 June
2007 (United Nations Publications 2009).
5
C Yiallourides, , Maritime Disputes and International Law (Routledge 2019).
not proceed to legal characterization of Serpent, but it claims it as “natural feature called
Serpent Island” without any economic zones. The Court’s judgment is not only important
from the perspective of international law, but geopolitical too. The Black Sea is a
geographically and politically strategic zone. As it had been mentioned before it is an
enclosed sea, connected with the Aegean Sea and consequently with the Mediterranean Sea
by the strait of Dardanelle. This connection is important geo-economically mainly for two
reasons. On the one hand, the Black Sea holds vast volumes of oil and gas. Romania
estimated that the disputed CS between Ukraine and itself has about 100 billion cubic meters
of natural gas and more than 10 million tons of oil and on the other hand, it is the entrance
gate of the Caspian Sea’s oil and gas recourses to Europe6.

Furthermore, throughout the history the region of the Black Sea has been through conflicts,
wars and maritime disputes among the surrounding States to achieve the regional hegemony.
It is worth mentioning the example of Russia whose biggest desire is to seize control of the
straits of Bosporus and Dardanelles. Russia’s irredentist claims over these strategic straits
based on its desire to have an exit towards the Mediterranean Sea. Moreover, the Black Sea
serves as a crossroads between Europe, Asia and Middle East, affecting their trade,
commutation and civilizations. Finally, as the Black Sea connects Europe, Eurasia and
Middle East, it easily understands that only a tiny change in the region can affect not only the
regional stability but internationally too.

CONCLUSION
The Court checks finally that the result arrived at, so far as the envisaged delimitation line is
concerned, does not lead to any significant disproportionality by reference to the respective
coastal lengths and the apportionment of areas that ensue. It indicates that this checking can
only be approximate. Noting that the ratio of the respective coastal lengths for Romania and
Ukraine, as it has measured them, is approximately 1:2.8 and the ratio of the relevant area
between Romania and Ukraine is approximately 1:2.1, the Court is not of the view that the
line it has constructed requires any alteration. Hence the adjudication is of binding nature and
there is hardly any scope of appeal.

6
K Marcin, , Maritime Delimitation in the Black Sea: The Romania v. Ukraine Case, 2nd Polish Review of
International and European Law ( ed., 2012).