Maritime Delimitation in the Black Sea (Romania v. Ukraine) - The Court establishes the single maritime boundary delimiting the continental shelf and exclusive economic zones of Romania and Ukraine

INTERNATIONAL COURT OF JUSTICE

Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release
Unofficial

No. 2009/9
3 February 2009

Maritime Delimitation in the Black Sea (Romania v. Ukraine)

The Court establishes the single maritime boundary delimiting the continental shelf
and exclusive economic zones of Romania and Ukraine

THE HAGUE, 3February2009. The Interna tional Court of Justice (ICJ), the principal
judicial organ of the United Nations, today re ndered its Judgment in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine).

In its Judgment, which is final, binding and without appeal, the Court unanimously

“Decides that starting from Point 1, as agr eed 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 Point2 (with co-ordin ates 45° 03' 18.5" N and 30° 09' 24.6" E)

where the arc intersects with the line equidistant from Romania’s and Ukraine’s
adjacent coasts. From Point2 the bounda ry line shall follow the equidistance line
through Points3 (with co-ordinates 44°46'38.7"N and 30°58'37.3"E) and 4 (with
co-ordinates 44° 44' 13.4" N and 31° 10'27.7"E) until it reaches Point5 (with
co-ordinates 44° 02' 53.0" N and 31° 24' 35.0" 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°23'54.5"until it reaches the area where the rights of third States may be
affected.”

Three of the nine sketch-maps included in the Judgment are attached to this press release:

⎯ Sketch-map No. 1: The maritime boundary lines claimed by Romania and Ukraine;

⎯ Sketch-map No. 5: The delimitation area as identified by the Court;

⎯ Sketch-map No. 9: Course of the maritime boundary as established by the Court in its
Judgment. - 2 -

Reasoning of the Court

Preliminary legal questions

The Court recalls that the dispute between Ro mania and Ukraine concerns the establishment
of a single maritime boundary delimiting the con tinental shelf and exclusive economic zones
between the two States in the Black Sea (paras. 17-19 of the Judgment).

The Court notes that Romania has sought to found the Court’s jurisdiction on Article36,
paragraph1, of the Statute of the Court and on the compromissory clause contained in
paragraph 4 (h) of the Additional Agreement concluded pursuant to Article 2 of the Treaty on Good
Neighbourliness and Co-operation of 2 June 1997. It follows from the text of the compromissory

clause that two conditions have to be met before either of the Parties is entitled to submit the case
to the Court. The first condition is that no de limitation agreement should have been concluded “in
a reasonable period of time, but not later than 2years” since the start of negotiations. No
agreement was reached between the Parties in th e six years during which the negotiations were

held. The second condition is that the Treaty on the Régime of the State Border should have
entered into force. The Court notes that this condition has also been fulfilled, the said Treaty
having entered into force on 27May 2004. Howeve r, it observes that the Parties differ as to the
exact scope of the jurisdiction conferred upon the Court (para.22). The Court points out that,

contrary to what has been suggested by Ukraine, nothing hinders its jurisdiction from being
exercised so that a segment of the line drawn may result in a delimitation between, on the one hand,
the exclusive economic zone and the continental shelf of one State, and, on the other hand, the

territorial sea of the other State at its seaward limit (para. 30).

The Court then turns to the applicable law. It observes that, while the principles listed in
subparagraphs 4 (a) to (e) of the Additional Agreement may apply to the extent that they are part of
the relevant rules of international law, the princi ples 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) (para. 41).

The existing maritime delimitation between the Parties

The Court notes that the Parties disagree as to whether there already exists an agreed
maritime boundary around Serpents’ Island for all purposes. They therefore disagree also on the

starting-point of the delimitation to be effected by the Court. The Court states that to this end it
must begin with “the determination of the starting-point of the delimitation as a function of the land
boundary and territorial sea boundary as already determ ined by the Parties”. It concludes that “in
1949 it was agreed that from the point represen ted by border sign1439 the boundary between

Romania and the USSR would follow the 12-mi le arc around Serpents’ Island, without any
endpoint being specified”. It adds that “[u]nder Article 1 of the 2003 State Border Régime Treaty
the endpoint of the State border between the Parties was fixed at the point of intersection where the
territorial sea boundary of Romania meets that of Ukraine”, a point referred to by the Court as

“Point 1” (para. 66).

The Court next turns to the question of whether, as Romania claims, a boundary delimiting
the exclusive economic zones and continental shelf beyond Point1, and extending around

Serpents’ Island, was established by the 1949 instrume nts (para. 69). It points out that paragraph 4
of Articles 74 and 83 of UNCLOS is relevant in this respect, since it provides that where there is an
agreement in force between the States concerned, questions relating to the delimitation of the

exclusive economic zone and the continental shel f “shall be determined in accordance with the
provisions of that agreement” (para.69). Th e Court notes that the 1949instruments “make no
reference to the exclusive economic zone or the c ontinental shelf” (para.70). It further observes
that, while the 1997Additional Agreement is the only agreement expressly dealing with - 3 -

delimitation of the exclusive economic zone and the continental shelf, “[i]t does not establish a
boundary but rather a process for arriving at one” (p ara. 70). The Court concludes that “the 1949

instruments related only to the demarcation of the State border between Romania and the USSR,
which around Serpents’ Island followe d the 12-mile limit of the te rritorial sea” (para.76).
Consequently, according to the Court, “there is no agreement in force between Romania and
Ukraine delimiting between them the exclusive economic zone and the continental shelf”

(para. 76).

Relevant coasts

The Court begins by pointing out that, from a legal point of view, the relevant coasts can
play two roles in relation to the delimitation of the continental shelf and the exclusive economic
zone: “First, it is necessary to identify 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, in the third and final stage of the delimitation process [see
“Delimitation methodology” below], whether any di sproportionality exists in the ratios of the
coastal length of each State and the maritime areas falling either side of the delimitation line.”

(Para. 78.)

The Court notes that the Parties are in agreement that the whole Romanian coast constitutes
the relevant coast for the purposes of delimitation. As a result, the length of the relevant coast of

Romania is approximately 248 km (para. 88).

The Court further notes that both Parties consider “the coast of the Crimean Peninsula
between CapeTarkhankut and Cape Sarych, as well as the Ukrainian coast from their common

territorial boundary running for a short distance in a north and subsequently in a north-easterly
direction until the Nistru/Dniester Firth (Romania designates this point as PointS) as the relevant
Ukrainian coast”. It observes that their disagreement in this r espect concerns the coast extending
from that point until CapeTarkhankut (para.98). The Court takes the view that the coasts of

Karkinits’ka Gulf do not form part of the relevant coast, since they do not project in the area to be
delimited; the coastline of Yahorlyts’ka Gulf and Dnieper Firth is to be excluded for the same
reason. However, the Court considers the sectors of the Ukrainian coast between Point S and Cape
Tarkhankut to be relevant, as they generate projections which overlap with the maritime projections

of the Romanian coast. As a result, the length of the relevant coast of Ukraine is approximately
705 km.

The Court notes that “on the basis of its determination of what constitutes the relevant

coasts, the ratio for the coastal lengths betwee n Romania and Ukraine is approximately 1:2.8”
(para. 104).

Relevant maritime area

The Court observes that the Parties hold differe nt views as to whether the south-western and
south-eastern “triangles” (as described in paragr aphs 107 and 109) should be included in the

relevant area. It notes that in both these tr iangles the maritime entitlements of Romania and
Ukraine overlap. The Court finds that it is appropr iate in the circumstances of this case to include
both the south-western and the south-eastern triangles in its calculation of the relevant area
(para. 114) (see sketch-map No. 5). - 4 -

Delimitation methodology

The Court sets out the delimitation methodology in the present case. It will begin by
drawing a provisional equidistance line between the adjacent coasts of Romania and Ukraine,
which will then continue as a median line between their opposite coasts. At the second stage, it
will consider whether there are factors calling for the adjustment or shifting of the provisional

equidistance line in order to achieve an equitable result (para.120). Third, it will verify that the
said line does not lead to an inequitable result by reason of any marked disproportion between the
ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State
by reference to the delimitation line (para. 122).

Establishment of the provisional equidistance line

⎯ Selection of base points

The Court observes that its task is firstly to identify “the appropriate points on the Parties’
relevant coast or coasts which mark a significant change in the direction of the coast, in such a way

that the geometrical figure formed by the line connecting all these points reflects the general
direction of the coastline” (para.127). After exam ining at length the characteristics of each base
point relied upon by the Parties for the establishment of the provisional equidistance line, the Court
decides to use the Sacalin Peninsula and the la ndward end of the Sulina dyke on the Romanian

coast (para.141), and Tsyganka Island, Cape Ta rkhankut and Cape Khersones on the Ukrainian
coast (para.148). It considers it inappropriate to select any base points on Serpents’ Island
(para. 149).

Relevant circumstances

⎯ The presence of Serpents’ Island in the area of delimitation

The Court recalls that, as its jurisprudence has indicated, it may on occasion decide not to
take account of very small islands or decide not to give them their full potential entitlement to
maritime zones, should such an approach have a disproportionate effect on the delimitation line

under consideration (para. 185). It notes that all of the areas subject to delimitation in this case are
located in the exclusive economic zone and the c ontinental shelf generated by the mainland coasts
of the Parties and are moreover within 200 nautical miles of Ukraine’s mainland coast. The Court
observes that Serpents’ Island is situated approxima tely 20nautical miles to the east of Ukraine’s

mainland coast in the area of the Danube delta. Given this geographical configuration and in the
context of the delimitation with Romania, any continental shelf and exclusive economic zone
entitlements possibly generated by Serpents’ Island could not project further than the entitlements
generated by Ukraine’s mainland coast because of the southern limit of the delimitation area as

identified by the Court. Further, any possible entitlements generated by Serpents’ Island in an
eastward direction are fully subsumed by the entitlements generated by the western and eastern
mainland coasts of Ukraine itself. The Court also notes that Ukraine itself, even though it
considered Serpents’ Island to fall under Article 121, paragraph 2, of UNCLOS, did not extend the

relevant area beyond the limit generated by its mainland coast, as a consequence of the presence of
Serpents’ Island in the area of delimitation. In th e light of these factors, the Court concludes that
the presence of Serpents’ Island does not call for an adjustment of the provisional equidistance line
(para.187). The Court further recalls that a 12- nautical-mile territorial sea was attributed to

Serpents’ Island pursuant to agreements between the Parties. It concludes that, in the context of the
present case, Serpents’ Island should have no effect on the delimitation in this case, other than that
stemming from the role of the 12-nautical-mile arc of its territorial sea (para. 188). - 5 -

⎯ Other possible relevant circumstances

Besides the presence of Serpents’ Island in the area of delimitation, the Court considers five
other factors: the possible disproportion between lengths of coasts (paras.158-168), the enclosed

nature of the Black Sea and the delimitations already effected in the region (paras.169-178), the
conduct of the Parties (oil and gas concessi ons, fishing activities and naval patrols)
(paras.189-198), any cutting off effect (paras.199- 201) and certain security considerations of the
Parties (paras. 202-204). However, the Court does not see in these various factors any reason that

would justify the adjustment of the provisional equidistance line.

The line of delimitation

The delimitation line decided by the Court, for which neither the seaward end of the Sulina
dyke nor Serpents’ Island is taken as a base point , therefore begins at Point1 and follows the
12-nautical-mile arc around Serpen ts’ Island until it intersects with the line equidistant from
Romania’s and Ukraine’s adjacent coasts; from ther e, it follows that line until it becomes affected

by base points on the opposite coasts of Romania and Ukraine. From this turning point the
delimitation line runs along the line equidistant from Romania’s and Ukraine’s opposite coasts
(para.206). The Court considers that the delim itation line follows the equidistance line in a
southerly direction until the point beyond which the interests of third States may be affected

(para. 209) (see sketch-map No. 9).

The disproportionality test

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 (para.210). It indicates that this checking can
only be approximate (para.212). Noting that the ratio of the respective coastal lengths for

Romania and Ukraine, as it has measured them, is ap proximately 1:2.8 and the ratio of the relevant
area between Romania and Ukraine is approximately 1:2.1 (para. 215), the Court is not of the view
that the line it has constructed requires any alteration (para. 216).

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh;
JudgesRanjeva, Shi, Koroma, Buergenthal, Owada , Tomka, Abraham, Keith, Sepúlveda-Amor,
Bennouna, Skotnikov; Judges ad hoc Cot, Oxman; Registrar Couvreur.

*

A summary of the Judgment appears in the document “Summary No. 2009/2”. In addition,

this press release, the summary and the full text of the Judgment can be found on the Court’s
website (www.icj-cij.org) under “Cases”.

___________

Information Department:

Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)
Mrs. Barbara Dalsbaek, Administrative Assistant (+31 (0)70 302 2396)

___________ Annex to Press Release 2009/9

⎯ Sketch-map No. 1: The maritime boundary lines claimed by Romania and Ukraine;

⎯ Sketch-map No. 5: The delimitation area as identified by the Court;

⎯ Sketch-map No. 9: Course of the maritime boundary as established by the Court in its
Judgment. MOLDOVA
D
niperFirth UKRAINE
ODESSA
D Yahorlyts’ka Gulf
nis
re
Fth

ulf
UKRAINE i’aG
Karkn

nbe
RierDa Crimea
Serpents’ Island
Cape Tarkhankut

Sulina Dyke

Kalamits’ka Gulf

Sacalin Peninsula Romania’s claim
ROMANIA SEVASTOPOL
Cape Khersones

Cape Sarych
Cape Midia
CONSTANTA ,

Ukraine’s claim

BULGARIA

B L A C K S E A

Sketch-map No. 1:

The maritime boundarylines

claimed byRomania and Ukraine

Mercator Projection
(45°30’ N)

WGS 84

TURKEY This sketch-map, on which the coasts are presented in

simplified form, has been prepared for illustrative purposes only.

ISTANBUL MOLDOVA

Dnieper Firth
UKRAINE
ODESSA Yahorlyts’ka Gulf
Dn
ert Zaliznyy Port
Fir
th

aGul
UKRAINE rint’
Ka

rDanube
Rve Crimea
Serpents’ Island Cape Tarkhankut

Sulina Dyke
Kalamits’ka Gulf

Sacalin Peninsula
ROMANIA SEVASTOPOL
Cape Khersones

Cape Sarych
Cape Midia
CONSTANTA ,

BULGARIA

B L A C K S E A

Sketch-map No. 5:

The delimitation area

as identified bythe Court

Mercator Projection

(45°30’ N)

WGS 84
This sketch-map, on which the coasts are presented in
TURKEY
simplified form, has been prepared for illustrative purposes only.

ISTANBUL MOLDOVA
D
nipeFirth UKRAINE
ODESSA
D Yahorlyts’ka Gulf
nis
re
ith

ul
UKRAINE isk G
Kari

nube
Rier a Crimea
Serpents’ Island
Cape Tarkhankut

Sulina Dyke
1
2 Kalamits’ka Gulf
3
Sacalin Peninsula 4
ROMANIA SEVASTOPOL
Cape Khersones

Cape Sarych
Cape Midia
CONSTANTA ,

5

BULGARIA

B L A C K S E A

Sketch-map No. 9:

Course of the maritime boundary

Mercator Projection
(45°30’ N)

WGS 84

TURKEY This sketch-map, on which the coasts are presented in

simplified form, has been prepared for illustrative purposes only.

ISTANBUL