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International Law of The Sea PDF
International Law of The Sea PDF
International Law of the Sea On 8 July 1991, Qatar filed in the Registry of the Court an
Application instituting proceedings against Bahrain in respect of
certain disputes between the two States relating to sovereignty
International Law of the Sea 1
over the Hawar Islands, sovereign rights over the shoals of Dibal
1. Sources of the International Law of the Sea 1
and Qit’at Jaradah and the delimitation of their maritime areas.
2. Spatial Partitioning of the Sea 1
Qatar founded the jurisdiction of the Court upon certain
2.1. Baselines 1 agreements between the Parties stated to have been concluded
North Sea Continental Shelf 1 in December 1987 and December 1990, the subject and scope of
Maritime Delimitation, Qatar v Bahrain 1 the commitment to accept that jurisdiction being determined by a
South China Sea Arbitration 2 formula proposed by Bahrain to Qatar in October 1988 and
2.2. Internal Waters and Territorial Sea 2 accepted by the latter State in December 1990 (the “Bahraini
2.3. Contiguous Zone 2 formula”). As Bahrain contested the basis of jurisdiction invoked
2.4. Exclusive Economic Zone 3 by Qatar, the Parties agreed that the written proceedings should
Fisheries Jurisdiction Case 3 first be addressed to the questions of jurisdiction and
Continental Shelf 3 admissibility. After a Memorial of the Applicant and
St Vincent and the Grenadines v Guinea 3 Counter-Memorial of the Respondent had been filed, the Court
Panama v Guinea-Bissau 4 directed that a Reply and a Rejoinder be filed by each of them,
2.5. Continental Shelf 4 respectively.
2.6. Area - exploitation of the seabed 4
On 1 July 1994 the Court delivered a first Judgment on the
Responsibilities and obligations of States
sponsoring persons and entities with respect to above-mentioned questions. It took the view that both the
activities in the Area 4 exchanges of letters of December 1987 between the King of
2.7. High Seas 5 Saudi Arabia and the Amir of Qatar, and between the King of
2.8. Delimitation of Maritime Zones 5 Saudi Arabia and the Amir of Bahrain, and the document entitled
Magallona v Ermita 5 “Minutes” and signed at Doha in December 1990 constituted
3. Delimitation of Maritime Zones 5 international agreements creating rights and obligations for the
3.1. Equidistance - Special Circumstance Rule 5 Parties ; and that by the terms of those agreements they had
undertaken to submit to the Court the whole of the dispute
Maritime Delimitation in the Black Sea (Romania v.
Ukraine) 5 between them. In the latter regard, the Court pointed out that the
3.2. Circumstances that may require a variance from the Application of Qatar did not cover some of the constitutive
line of equidistance 6 elements that the Bahraini formula was supposed to cover. It
4. Dispute Settlement in the Law of the Sea 6 accordingly decided to give the Parties the opportunity to submit
to it “the whole of the dispute” as circumscribed by the Minutes
of 1990 and that formula, while fixing 30 November 1994 as the
time-limit within which the Parties were, jointly or separately, to
1. Sources of the International Law of the Sea take action to that end. On the prescribed date, Qatar filed a
document entitled “Act”, which referred to the absence of an
2. Spatial Partitioning of the Sea
agreement between the Parties to act jointly and declared that it
2.1. Baselines was submitting “the whole of the dispute” to the Court. On the
North Sea Continental Shelf same day, Bahrain filed a document entitled “Report” in which it
indicated, inter alia, that the submission to the Court of “the
The case involved the delimitation of the continental shelf areas
whole of the dispute” must be “consensual in character, that is, a
in the North Sea between Germany and Denmark and Germany
matter of agreement between the Parties”. By observations
and Netherlands beyond the partial boundaries previously agreed
submitted to the Court at a later time, Bahrain indicated that the
upon by these States. The parties requested the Court to decide
unilateral “Act” of Qatar did not “create that jurisdiction [of the
the principles and rules of international law that are applicable to
Court] or effect a valid submission in the absence of Bahrain’s
the above delimitation because the parties disagreed on the
consent”. By a second Judgment on the questions of jurisdiction
applicable principles or rules of delimitation. Netherlands and
and admissibility, delivered on 15 February 1995, the Court found
Denmark relied on the principle of equidistance (the method of
that it had jurisdiction to adjudicate upon the dispute submitted
determining the boundaries in such a way that every point in the
to it between Qatar and Bahrain, and that the Application of Qatar,
boundary is equidistant from the nearest points of the baselines
as formulated on 30 November 1994, was admissible. The Court,
from which the breath of the territorial sea of each State is
having proceeded to an examination of the two paragraphs
measured). Germany sought to get a decision in favour of the
constituting the Doha Agreement, found that, in that Agreement,
notion that the delimitation of the relevant continental shelf was
the Parties had reasserted their consent to its jurisdiction and
governed by the principle that each coastal state is entitled to a
had defined the object of the dispute in accordance with the
just and equitable share (hereinafter called just and equitable
Bahraini formula ; it further found that the Doha Agreement
principle/method). Contrary to Denmark and Netherlands,
permitted the unilateral seisin and that it was now seised of the
Germany argued that the principle of equidistance was neither a
whole of the dispute. By two Orders, the Court subsequently fixed
mandatory rule in delimitation of the continental shelf nor a rule
and then extended the time-limit within which each of the Parties
of customary international law that was binding on Germany. The
could file a Memorial on the merits.
Court was not asked to delimit because the parties had already
agreed to delimit the continental shelf as between their countries,
Following the objections raised by Bahrain as to the authenticity
by agreement, after the determination of the Court on the
of certain documents annexed to the Memorial and
applicable principles.
Counter-Memorial of Qatar, the Court, by an Order of 30 March functional jurisdiction (continental shelf, exclusive economic
1998, fixed a time-limit for the filing, by the latter, of a report zone).
concerning the authenticity of each of the disputed documents.
By the same Order, the Court directed the submission of a Reply With respect to the territorial seas, the Court considered that it
on the merits of the dispute by each of the Parties. Qatar having had to draw provisionally an equidistance line (a line every point
decided to disregard the challenged documents for the purposes of which is equidistant from the nearest points on the baselines
of the case, the Court, by an Order of 17 February 1999, decided from which the breadth of the territorial sea of each of the two
that the Replies would not rely on those documents. It also States is measured) and then to consider whether that line must
granted an extension of the time-limit for the filing of the said be adjusted in the light of any special circumstances. As the
Replies. Parties had not specified the baselines to be used, the Court
recalled that, under the applicable rules of law, the normal
In its Judgment of 16 March 2001, the Court, after setting out the baseline for measuring the breadth of the territorial sea was the
procedural background in the case, recounted the complex low-water line along the coast. It observed that Bahrain had not
history of the dispute. It noted that Bahrain and Qatar had included a claim to the status of archipelagic State in its formal
concluded exclusive protection agreements with Great Britain in submissions and that the Court was therefore not requested to
1892 and 1916 respectively, and that that status of protected take a position on that issue. In order to determine what
States had ended in 1971. The Court further cited the disputes constituted the Parties’ relevant coasts, the Court first had to
which had arisen between Bahrain and Qatar on the occasion, establish which islands came under their sovereignty. Bahrain
inter alia, of the granting of concessions to oil companies, as well had claimed to have sovereignty over the islands of Jazirat
as the efforts made to settle those disputes. Mashtan and Umm Jalid, a claim which had not been contested
by Qatar. As to Qit’at Jaradah, the nature of which was disputed,
The Court first considered the Parties’ claims to Zubarah. It the Court held that it should be considered as an island because
stated that, in the period after 1868, the authority of the Sheikh of it was above water at high tide; the Court added that the
Qatar over Zubarah had been gradually consolidated, that it had activities which had been carried out by Bahrain were sufficient
been acknowledged in the Anglo-Ottoman Convention of 29 July to support its claim of sovereignty over the island. With regard to
1913 and definitively established in 1937. It further stated that low-tide elevations, the Court, after noting that international treaty
there was no evidence that members of the Naim tribe had law was silent on the question whether those elevations should
exercised sovereign authority on behalf of the Sheikh of Bahrain be regarded as “territory”, found that low-tide elevations situated
within Zubarah. Accordingly, it concluded that Qatar had in the overlapping area of the territorial seas of both States could
sovereignty over Zubarah. not be taken into consideration for the purposes of drawing the
equidistance line. That was true of Fasht ad Dibal, which both
Turning to the Hawar Islands, the Court stated that the decision Parties regarded as a low-tide elevation. The Court then
by which the British Government had found in 1939 that those considered whether there were any special circumstances which
islands belonged to Bahrain did not constitute an arbitral award, made it necessary to adjust the equidistance line in order to
but that did not mean that it was devoid of legal effect. It noted obtain an equitable result. It found that there were such
that Bahrain and Qatar had consented to Great Britain settling circumstances which justified choosing a delimitation line
their dispute at the time and found that the 1939 decision must passing on the one hand between Fasht al Azm and Qit’at ash
be regarded as a decision that was binding from the outset on Shajarah and, on the other, between Qit’at Jaradah and Fasht ad
both States and continued to be so after 1971. Rejecting Qatar’s Dibal.
arguments that the decision was null and void, the Court
concluded that Bahrain had sovereignty over the Hawar In the northern part, the Court, citing its case law, followed the
Islands. same approach, provisionally drawing an equidistance line and
examining whether there were circumstances requiring an
The Court observed that the British decision of 1939 did not adjustment of that line. The Court rejected Bahrain’s argument
mention Janan Island, which it considered as forming a single that the existence of certain pearling banks situated to the north
island with Hadd Janan. It pointed out, however, that in letters of Qatar, and which were predominantly exploited in the past by
sent in 1947 to the Rulers of Qatar and Bahrain, the British Bahraini fishermen, constituted a circumstance justifying a
Government had made it clear that “Janan Island is not regarded shifting of the line. It also rejected Qatar’s argument that there
as being included in the islands of the Hawar group”. The Court was a significant disparity between the coastal lengths of the
considered that the British Government, in so doing, had provided Parties calling for an appropriate correction. The Court further
an authoritative interpretation of its 1939 decision, an stated that considerations of equity required that the maritime
interpretation which revealed that it regarded Janan as belonging formation of Fasht al Jarim should have no effect in determining
to Qatar. Accordingly, Qatar had sovereignty over Janan the boundary line.
Island, including Hadd Janan.
South China Sea Arbitration
The Court then turned to the question of the maritime
delimitation. It recalled that international customary law was 2.2. Internal Waters and Territorial Sea
the applicable law in the case and that the Parties had requested
it to draw a single maritime boundary. In the southern part, the
Court had to draw a boundary delimiting the territorial seas of the 2.3. Contiguous Zone
Parties, areas over which they enjoyed territorial sovereignty
(including sea-bed, superjacent waters and superjacent aerial
space). In the northern part, the Court had to make a delimitation
between areas in which the Parties had only sovereign rights and
fired at the ship itself with live ammunition from a fast-moving repeating this violation. The Tribunal, therefore, finds that the
patrol boat without issuing any of the signals and warnings confiscation by Guinea-Bissau of the M/V Virginia G and the gas
required by international law and practice. In addition, the oil on board was in violation of article 73, paragraph 1, of the
Guinean officers used excessive force on board the Saiga. Having Convention.
boarded the ship without resistance, and although there is no The Tribunal finds that, by failing to notify Panama as the flag
evidence of the use or threat of force from the crew, they fired State of the detention and arrest of the M/V Virginia G and
indiscriminately while on the deck and used gunfire to stop the subsequent actions taken against the vessel and its cargo,
engine of the ship. In using firearms in this way, the Guinean Guinea-Bissau violated the requirements of article 73, paragraph
officers appeared to have attached little or no importance to the 4, of the Convention and thus deprived Panama of its right as a
safety of the ship and the persons on board. In the process, flag State to intervene at the initial stages of actions taken
considerable damage was done to the ship and to vital against the M/V Virginia G and during the subsequent
equipment in the engine and radio rooms. And, more seriously, proceedings.
the indiscriminate use of gunfire caused severe injuries to two of
2.5. Continental Shelf
the persons on board.
Panama v Guinea-Bissau
The dispute concerns the M/V Virginia G, an oil tanker flying the 2.6. Area - exploitation of the seabed
flag of Panama, arrested on 21 August 2009 by the authorities of Responsibilities and obligations of States sponsoring
Guinea-Bissau for carrying out refuelling operations for foreign persons and entities with respect to activities in the Area
vessels fishing in Guinea-Bissau’s exclusive economic zone. The 1. What are the legal responsibilities and obligations of States
vessel and the gas oil on board were confiscated on 27 August Parties to the Convention with respect to the sponsorship of
2009. Subsequently, the vessel was released by decision of the activities in the Area in accordance with the Convention, in
authorities of Guinea-Bissau, which was notified to the particular Part XI, and the 1994 Agreement relating to the
ship-owner on 6 October 2010. Proceedings were instituted Implementation of Part XI of the United Nations Convention on
before the Tribunal on 4 July 2011 through the notification of a the Law of the Sea of 10 December 1982?
special agreement concluded between the Parties. Sponsoring States have two kinds of obligations under the
Whether the application of the relevant laws and regulations of Convention and related instruments:
Guinea-Bissau in the case of the M/V Virginia G violated the A. The obligation to ensure compliance by sponsored
Convention. It concludes that the fisheries laws and regulations contractors with the terms of the contract and the
of Guinea-Bissau provide for the possibility of confiscating obligations set out in the Convention and related
bunkering vessels. The Tribunal emphasizes that, according to instruments. This is an obligation of “due diligence”.
article 73, paragraph 1, of the Convention, the coastal State may The sponsoring State is bound to make best possible
take such measures “as may be necessary to ensure compliance efforts to secure compliance by the sponsored
with the laws and regulations adopted by it in conformity with contractors. The standard of due diligence may vary
this Convention”. It adds that it is within its competence to over time and depends on the level of risk and on the
establish whether the legislation promulgated by Guinea-Bissau
activities involved. This “due diligence” obligation
for the exclusive economic zone is in conformity with the requires the sponsoring State to take measures within
Convention and whether the measures taken in implementing its legal system. These measures must consist of laws
this legislation are necessary. The Tribunal states that providing and regulations and administrative measures. The
for the confiscation of a vessel offering bunkering services to applicable standard is that the measures must be
foreign vessels fishing in the exclusive economic zone of “reasonably appropriate”.
Guinea-Bissau is not per se in violation of article 73, paragraph 1,
B. Direct obligations with which sponsoring States must
of the Convention, and that whether or not confiscation is
comply independently of their obligation to ensure a
justified in a given case depends on the facts and circumstances.
certain conduct on the part of the sponsored
In examining whether the confiscation of the vessel and the gas
contractors. Compliance with these obligations may
oil on board was justified, the Tribunal first notes that article 73,
also be seen as a relevant factor in meeting the “due
paragraph 1, of the Convention refers to the right of coastal
diligence” obligation of the sponsoring State. The most
States to board, inspect and arrest the vessels concerned. It finds
important direct obligations of the sponsoring State are:
that neither the boarding and inspection nor the arrest of the M/V
(a) the obligation to assist the Authority set out in
Virginia G violated article 73, paragraph 1, of the Convention. It
article 153, paragraph 4, of the Convention;
then reiterates that, pursuant to article 73, paragraph 1, of the
(b) the obligation to apply a precautionary
Convention, the enforcement measures taken have to be
approach as reflected in Principle 15 of the Rio
“necessary” to ensure compliance with the laws and regulations
Declaration and set out in the Nodules
adopted by the coastal State in conformity with the Convention.
Regulations and the Sulphides Regulations;
Having determined that the M/V Virginia G did not have the
this obligation is also to be considered an
written authorization required by the legislation of Guinea-Bissau
integral part of the “due diligence” obligation of
for bunkering, the Tribunal observes that the failure to obtain a
the sponsoring State and applicable beyond
written authorization was rather the consequence of a
the scope of the two Regulations;
misinterpretation of the correspondence between the
(c) the obligation to apply the “best environmental
representatives of the fishing vessels and the relevant authorities
practices” set out in the Sulphides Regulations
of Guinea-Bissau than an intentional violation of the laws and
but equally applicable in the context of the
regulations. The Tribunal finds, in the light of the circumstances
Nodules Regulations;
of the case, that the confiscation of the vessel and the gas oil on
(d) the obligation to adopt measures to ensure the
board was not necessary either to sanction the violation
provision of guarantees in the event of an
committed or to deter the vessels or their operators from
emergency order by the Authority for protection consequences of such wrongful act are determined by customary
of the marine environment; and international law.
(e) the obligation to provide recourse for
compensation. 3. What are the necessary and appropriate measures that a
The sponsoring State is under a due diligence obligation to sponsoring State must take in order to fulfil its responsibility
ensure compliance by the sponsored contractor with its under the Convention, in particular Article 139 and Annex III, and
obligation to conduct an environmental impact assessment set the 1994 Agreement?
out in section 1, paragraph 7, of the Annex to the 1994 The Convention requires the sponsoring State to adopt, within its
Agreement. legal system, laws and regulations and to take administrative
The obligation to conduct an environmental impact assessment measures that have two distinct functions, namely, to ensure
is also a general obligation under customary law and is set out as compliance by the contractor with its obligations and to exempt
a direct obligation for all States in article 206 of the Convention the sponsoring State from liability.
and as an aspect of the sponsoring State’s obligation to assist Such laws and regulations and administrative measures may
the Authority under article 153, paragraph 4, of the Convention. include the establishment of enforcement mechanisms for active
Obligations of both kinds apply equally to developed and supervision of the activities of the sponsored contractor and for
developing States, unless specifically provided otherwise in the co-ordination between the activities of the sponsoring State and
applicable provisions, such as Principle 15 of the Rio Declaration, those of the Authority. Laws and regulations and administrative
referred to in the Nodules Regulations and the Sulphides measures should be in force at all times that a contract with the
Regulations, according to which States shall apply the Authority is in force. The existence of such laws and regulations,
precautionary approach “according to their capabilities”. The and administrative measures is not a condition for concluding
provisions of the Convention which take into consideration the the contract with the Authority; it is, however, a necessary
special interests and needs of developing States should be requirement for carrying out the obligation of due diligence of the
effectively implemented with a view to enabling the developing sponsoring State and for seeking exemption from liability.
States to participate in deep seabed mining on an equal footing
with developed States.” The Advisory Opinion relates to the recovery of resources from
the Area, a zone established by the UNCLOS as the seabed and
2. What is the extent of liability of a State Party for any failure to ocean floor and subsoil thereof beyond the limits of national
comply with the provisions of the Convention, in particular Part jurisdiction. The Convention declares the Area and its resources
XI, and the 1994 Agreement, by an entity whom it has sponsored to be the common heritage of mankind.
under Article 153, paragraph 2 (b), of the Convention?
The liability of the sponsoring State arises from its failure to fulfil
2.7. High Seas
its obligations under the Convention and related instruments.
Failure of the sponsored contractor to comply with its obligations
does not in itself give rise to liability on the part of the sponsoring 2.8. Delimitation of Maritime Zones
State. The conditions for the liability of the sponsoring State to
Magallona v Ermita
arise are:
(a) failure to carry out its responsibilities under the
Convention; and 3. Delimitation of Maritime Zones
(b) occurrence of damage.
The liability of the sponsoring State for failure to comply with its 3.1. Equidistance - Special Circumstance Rule
due diligence obligations requires that a causal link be Maritime Delimitation in the Black Sea (Romania v.
established between such failure and damage. Such liability is Ukraine)
triggered by a damage caused by a failure of the sponsored On 16 September 2004, Romania filed an Application instituting
contractor to comply with its obligations. The existence of a proceedings against Ukraine in respect of a dispute concerning
causal link between the sponsoring State‟s failure and the “the establishment of a single maritime boundary between the
damage is required and cannot be presumed. The sponsoring two States in the Black Sea, thereby delimiting the continental
State is absolved from liability if it has taken “all necessary and shelf and the exclusive economic zones appertaining to them”.
appropriate measures to secure effective compliance” by the The Memorial of Romania and the Counter-Memorial of Ukraine
sponsored contractor with its obligations. This exemption from were filed within the time-limits fixed by an Order of 19 November
liability does not apply to the failure of the sponsoring State to 2004. By an Order of 30 June 2006, the Court authorized the filing
carry out its direct obligations. The liability of the sponsoring of a Reply by Romania and a Rejoinder by Ukraine and fixed 22
State and that of the sponsored contractor exist in parallel and December 2006 and 15 June 2007 as the respective time-limits
are not joint and several. The sponsoring State has no residual for the filing of those pleadings. Romania filed its Reply within the
liability. Multiple sponsors incur joint and several liability, unless time-limit thus fixed. By an Order of 8 June 2007, the Court
otherwise provided in the Regulations of the Authority. The extended to 6 July 2007 the time-limit for the filing of the
liability of the sponsoring State shall be for the actual amount of Rejoinder by Ukraine. The Rejoinder was filed within the time-limit
the damage. thus extended.
The rules on liability set out in the Convention and related
instruments are without prejudice to the rules of international Following public hearings held in September 2008, the Court
law. Where the sponsoring State has met its obligations, damage rendered its Judgment in the case on 3 February 2009. On the
caused by the sponsored contractor does not give rise to the basis of established State practice and of its own jurisprudence,
sponsoring State‟s liability. If the sponsoring State has failed to the Court declared itself bound by the three-step approach laid
fulfil its obligation but no damage has occurred, the 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 In the operative clause of its Judgment, the Court found
adjusting it accordingly and, finally, of confirming that the line unanimously that :
thus adjusted would not lead to an inequitable result by
comparing the ratio of coastal lengths with the ratio of relevant “starting from Point 1, as agreed by the Parties in Article 1 of the
maritime areas. 2003 State Border Régime Treaty, the line of the single maritime
boundary delimiting the continental shelf and the exclusive
In keeping with this approach, the Court first established a economic zones of Romania and Ukraine in the Black Sea shall
provisional equidistance line. In order to do so, it was obliged to follow the 12-nautical-mile arc of the territorial sea of Ukraine
determine appropriate base points. After examining at length the around Serpents’ Island until Point 2 (with co-ordinates 45°03′
characteristics of each base point chosen by the Parties for the 18.5ʺ N and 30°09′ 24.6ʺ E) where the arc intersects with the line
establishment of the provisional equidistance line, the Court equidistant from Romania’s and Ukraine’s adjacent coasts. From
decided to use the Sacalin Peninsula and the landward end of the Point 2 the boundary line shall follow the equidistance line
Sulina dyke on the Romanian coast, and Tsyganka Island, Cape through Points 3 (with co-ordinates 44°46′ 38.7ʺ N and 30°58′
Tarkhankut and Cape Khersones on the Ukrainian coast. It 37.3ʺ E) and 4 (with co-ordinates 44° 44′ 13.4ʺ N and 31° 10′
considered it inappropriate to select any base points on Serpents’ 27.7ʺ E) until it reaches Point 5 (with co-ordinates 44° 02′ 53.0ʺ N
Island (belonging to Ukraine). The Court then proceeded to and 31° 24′ 35.0ʺ E). From Point 5 the maritime boundary line
establish the provisional equidistance line as follows : shall continue along the line equidistant from the opposite coasts
of Romania and Ukraine in a southerly direction starting at a
“In its initial segment the provisional equidistance line between geodetic azimuth of 185°23′ 54.5ʺ until it reaches the area where
the Romanian and Ukrainian adjacent coasts is controlled by the rights of third States may be affected.”
base points located on the landward end of the Sulina dyke on
the Romanian coast and south-eastern tip of Tsyganka Island on
3.2. Circumstances that may require a variance from the
the Ukrainian coast. It runs in a south-easterly direction, from a
line of equidistance
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 See North Sea Continental Shelf and Continental Shelf Cases
becomes affected by a base point located on the Sacalin
Peninsula on the Romanian coast. At Point A the equidistance As regards what constitutes "special circumstances", all that
line slightly changes direction and continues to Point B (with need be said at this stage is that according to the view put
co-ordinates 44°44′ 13.4ʺ N and 31°10′ 27.7ʺ E) where it becomes forward on behalf of Denmark and the Netherlands, the
affected by the base point located on Cape Tarkhankut on configuration of the German North Sea coast, its recessive
Ukraine’s opposite coasts. At Point B the equidistance line turns character, and the fact that it makes nearly a right-angled bend in
south-south-east and continues to Point C (with co-ordinates mid-course, would not of itself constitute, for either of the two
44°02′ 53.0ʺ N and 31°24′ 35.0ʺ E), calculated with reference to boundary lines concerned, a special circumstance calling for or
base points on the Sacalin Peninsula on the Romanian coast and warranting a departure from the equidistance method of
Capes Tarkhankut and Khersones on the Ukrainian coast. From delimitation: only the presence of some special feature, minor in
Point C the equidistance line, starting at an azimuth of 185°23′ itself-such as an islet or small protuberance-but so placed as to
54.5ʺ, runs in a southerly direction. This line remains governed by produce a disproportionately distorting effect on an otherwise
the base points on the Sacalin Peninsula on the Romanian coast acceptable boundary line would, so it was claimed, possess this
and Cape Khersones on the Ukrainian coast.” character.
It becomes unnecessary for the Court to determine whether or
The Court then turned to the examination of relevant not the configuration of the German North Sea Coast constitutes
circumstances which might call for an adjustment of the a "special circumstance" for the purposes either of Article 6 of
provisional equidistance line, considering six potential factors : the Geneva Convention or of any rule of customary international
(1) the possible disproportion between coastal lengths ; (2) the law,-since once the use of the equidistance method of
enclosed nature of the Black Sea and the delimitations already delimitation is determined not to be obligatory in any event, it
effected in the region ; (3) the presence of Serpents’ Island in the ceases to be legally necessary to prove the existence of special
area of delimitation ; (4) the conduct of the Parties (oil and gas circumstances in order to justify not using that method.
concessions, fishing activities and naval patrols) ; (5) any
4. Dispute Settlement in the Law of the Sea
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.