1 Maritime Delimitation in the Black Sea (Rom. v. Ukr.) (Int’l Ct. Justice Feb. 3,2009). The basic documents, decisions, pleadings, transcripts, press releases, and other materials for this case and others are available on the Court’s Web site, <http://www.icj-cij.org>.
2 The Court used “2003 State Border Regime Treaty” to simplify the name of the Treaty Between Romania and Ukraine on the Romanian-Ukrainian State Border Regime, Collaboration and Mutual Assistance on Border Matters, June 17, 2003, 2277 UNTS 3 (para. 21).
3 The third states whose rights may be affected are Bulgaria and Turkey. These two states have delimited most of their maritime boundary, leaving the endpoint along the northeasternmost segment to be “finalized later at subsequent negotiations.” Agreement Between the Republic of Turkey and the Republic of Bulgaria on the Delimitation of the Boundary in the Mouth of the Rezovska/Mutludere River and Delimitation of the Maritime Areas Between the Two States in the Black Sea, Art. 4(1), Dec. 4,1997,2087 UNTS 5. Similar language is used to describe the endpoint in the westernmost segment of the maritime boundary between Ukraine and Turkey. See Agreement Concerning the Delimitation of the Continental Shelf in the Black Sea, Turk.-U.S.S.R., Art. 1 June 23,1978,1247 UNTS 137. Romania and Bulgaria have not delimited their maritime boundary.
4 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.
5 The Court’s approach here is different from that taken with respect to the Bay of Fundy in Delimitation ofthe Maritime Boundary in the Gulf of Maine Area, 1984 ICJ Rep. 246, para. 221 (Oct. 12).
6 The phrase “refashioning of geography” has more often been used in arguments against reducing the effect of a naturally occurring feature or coastal configuration. See, e.g., North Sea Continental Shelf (FRG/Den.; FRG/ Neth.), 1969 ICJ Rep. 3, paras. 89-91 (Feb. 20) (recognizing the concave configuration of Germany’s coast as “a natural geographical feature” and noting that the application of equitable principles under these circumstances would not equate to a complete refashioning of geography); Continental Shelf (UK/Fr.), 18 R.I.A.A. 3, 113-14 (June 30, 1977) (noting that the projection of the Cornish peninsula and Scilly Isles “is a geographical fact, a fact of nature”). Here the Court uses the phrase as a justification for the elimination of a naturally occurring feature.
7 The total length of Serpents’ Island’s coast is approximately 2 kilometers, whereas the Court assessed Ukraine’s relevant coast to be approximately 705 kilometers (paras. 16, 103).
8 Articlel21 (“Regime of islands”) provides:
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
9 The Court noted that
the issue of determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting xht continental shelf and the exclusive economic zone between adjacent/opposite States are two different issues. (Para. 137, emphasis added)
10 Both parties used the seaward end of Sulina dyke in the construction of their equidistance-based boundary claims (paras. 151-52). In the course of oral argument, however, Ukraine questioned why it would be “equitable to accord a man-made structure consisting of two low, thin stone embankments, about 150 m apart, jutting 7.5 km long, a full effect for the delimitation of the continental shelf and exclusive economic zone, while a much larger natural island should receive no equivalent treatment.” Verbatim Record, ICJ Doc. CR2008/32, para. 90 (Sept. 18, 2008).
11See Continental Shelf (UK/Fr.), 18 R.I.A.A. 3 (June 30, 1977); Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ Rep. 38 (June 14); Eritrea v. Yemen, Second Stage, Maritime Delimitation (Perm. Ct. Axb. Dec. 17, 1999), athttp:www.pca-cpa.org (reported by W. Michael Reisman at 94 AJIL 721 (2000)); Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 2001 ICJ Rep. 40 (Mar. 16) (reported by Glen Plant at 96 AJIL 198 (2002)); Nova Scotia v. Newfoundland and Labrador, Second Phase, Maritime Boundary (Mar. 26, 2002), athttp://www.nr.gov.nl.ca/mines%26en/publications/offshore/dispute/phasell.pdf; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.; Eq. Guinea intervening), 2002 ICJ Rep. 303 (Oct. 10) (reported by Peter Bekker at 97 AJIL 387 (2003)); Barbados v. Trinidad and Tobago, 27 R.I.A.A. 147 (Apr. 11, 2006); Guyana v. Suriname (UN Law of the Sea Annex VII Arb. Trib. Sept. 17, 2007), athttp://www.pca-cpa.org/upload/files/Guyana-Suriname%20Award.pdf (reported by Stephen Fietta at 102 AJIL 119 (2008)).
12See Continental Shelf, para. 244 (questioning whether the Scilly Isles might “distort the boundary and have disproportionate effects as between the two states”).
13See, e.g., Continental Shelf (adjusting strict equidistance line by giving the Scilly Isles only half effect); Eritrea v. Yemen (adjusting strict equidistance line by giving no effect to island of al-Tayr and island group of al-Zubayr); Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (adjusting strict equidistance line by giving no effect to extensive drying banks of Fasht al Jarim); Newfoundland v. Labrador and Nova Scotia (adjusting strict equidistance line by giving no effect to Sable Island).
14 However, Serpents’ Island was given a full, twelve-nautical-mile territorial sea, which had the effect of adjusting the Court’s provisional equidistance line.
15 The Court cites at paragraph 149 of the judgment to its treatment of the islet of Filfa in the delimitation case between Libya and Malta. There the Court “[found] it equitable not to take account of Filfa in the calculation of the provisional median line between Malta and Libya.” Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13, para. 64 (June 3).
16 The effect of islands, islets, and cays will be central to the delimitation between Nicaragua and Colombia currently before the Court. See Territorial and Maritime Dispute (Nicar. v. Colom.), Preliminary Objections (Int’l Ct. Justice Dec. 13, 2007).
17See supra note 3 and accompanying text.
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