I wanted to follow up on Gentian’s post on recent activity at the ICJ with a more detailed consideration of the judgment in the Case Concerning Maritime Delimitation in the Black Sea delivered by the Court at the beginning of February.
Although both Romania and Ukraine are a party to the 1982 United Nations Convention on the Law of the Sea, Ukraine has opted out of compulsory dispute settlement relating to sea boundary delimitation under Article 298(1)(a)(i) of the Convention. Therefore, it was not possible to settle the dispute according to the provisions of Part XV of the Convention. Instead, the jurisdiction of the Court was based upon a 1997 agreement between the two states. This agreement allowed questions concerning the delimitation of the continental shelf and the exclusive economic zone between the two states to be submitted to the ICJ if Romania and Ukraine were unable to reach an agreement within a reasonable period of time. Following six years of unsuccessful negotiations, Romania initiated proceedings in September 2004.
Although the 1982 Convention did not offer a basis for the jurisdiction of the Court, it did provide the relevant principles on which the Court had to decide the case. The relevant provisions of the 1982 Convention (Articles 74 and 83) are notoriously ambiguous, providing that ‘the delimitation of [the continental shelf and the exclusive economic zone] 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.’ The Court has interpreted this aspect of the Convention on many occasions in the past and it was content in this case to follow the methodology on maritime boundary delimitation which it has developed in its previous jurisprudence. Thus, it started by drawing a provisional equidistance line and it then considered whether there were any relevant circumstances which would justify adjusting the equidistance line so as to achieve an equitable solution. On the facts, the Court decided that there were no relevant circumstances which would justify any such adjustment and the final boundary was therefore based upon the equidistance line.
As with most maritime boundary cases, it is some of the details of the decision which prove to be most interesting. In particular, the Court’s discussion of the following points is of particular note:
(1) Selection of base points
(2) Interpretation of ‘permanent harbour works’
(3) Relevance of islands to base points and delimitation
(4) Selection of relevant coastlines
These points are considered in more detail below…