Maritime Security of Ukraine. A Reference Work. (4) Ukraine's Maritime Borders With Turkey and Romania

Bohdan USTYMENKO,
M.J., Attorney at Law

Tetiana USTYMENKO,
S.J.D., professor,
Department of Civil Law and Procedure
National Academy of Internal Affairs

From the editors of BlackSeaNews

On 7 December 2021, the interdepartmental working group chaired by Secretary of the National Security and Defence Council (NSDC) of Ukraine Oleksiy Danilov completed work on the draft Maritime Security Strategy of Ukraine, a document initiated by President of Ukraine Volodymyr Zelensky.

The strategy was developed taking into account the current experience of the world's leading maritime powers, the positions of maritime law scholars, the proposals of 16 government agencies, independent experts, and business associations. The working group members approved the draft, and the final text of the document, after coordination of some positions, was sent to the President of Ukraine and members of the NSDC of Ukraine.

The strategy took into account a lot of proposals aimed at solving problems that had been repeatedly addressed in the publications by BlackSeaNews authors. Therefore, the editorial board has decided to create a concise and clear reference work based on the contributions from our authors, which looks at the terminology and problems related to maritime security and provides expert explanations.

Contents

(1) The State Border of Ukraine at Sea

(2) The Contiguous Zone

(3) The Exclusive Economic Zone and the Continental Shelf

(4) Ukraine's Maritime Borders With Turkey and Romania

(5) Ukraine's Maritime Borders With the Russian Federation

(6) "Historical Waters" of the Sea of ​​Azov and the Kerch Strait

(7) "Internal Waters" and Borders in the Sea of ​​Azov and the Kerch Strait

(8) The Tuzla Island Conflict and the Agreement Under Duress

(9) The Delimitation of the Sea of ​​Azov and the Kerch Strait According to the UN Convention on the Law of the Sea

(10). What Mandatory Procedure for the Delimitation of the Maritime Border Between Ukraine and Russia Can Be Adopted

(11) Foreign Military Exercises in the Exclusive Economic Zone of Ukraine

(12) The Legal Aspects of Hydrocarbon Extraction in the Exclusive Economic Zone of Ukraine

(13) The Prohibition Against Vessels and Ships Entering the 12-Mile Zone of the Crimean Peninsula

(14) Threats of Maritime Formats Involving the Russian Federation

(15) Necessary Legal Measures Ukraine Should Take

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Having examined the basic Ukrainian and international legal provisions on territorial waters, the contiguous zone, the exclusive economic zone and the continental shelf, we must also pay particular attention to the international documents that establish maritime borders between Ukraine and its three coastal neighbors — Turkey, Romania and the Russian Federation.

 

The Maritime Border Between Ukraine and Turkey

The maritime border between Ukraine and Turkey is determined on the basis of the agreement.

According to Article 1 of the Agreement between the Government of Ukraine and the Government of the Republic of Turkey on the Border of Economic (Marine) Zones of Ukraine and the Republic of Turkey, the border of the continental shelf established by the Agreement between the Government of Ukraine and the Government of the Republic of Turkey On the Border of the Continental Shelf Between Ukraine and Turkey of May 30, 1994, is also the border of economic (marine) zones between Ukraine and the Republic of Turkey.

The Maritime Border Between Ukraine and Romania

In case of Romania, the maritime border between Ukraine and Romania established in 2009 was based on the ruling of the International Court of Justice.

Pursuant to Article 2 of the 1997 Agreement on Good Neighborly Relations and Cooperation between Ukraine and Romania (hereinafter — the Treaty), in accordance with the principles and norms of international law and the principles of the Helsinki Final Act, the contracting parties confirmed as inviolable existing borders between them and restrained from any claims, encroachment or actions aimed at seizing any part or all of the territory of the other side.

The parties also agreed to conclude a separate treaty on the border regime between the two states and resolve the delimitation of their continental shelf and exclusive economic zones in the Black Sea on the basis of principles and procedures agreed in the exchange of letters between their Ministers of Foreign Affairs.

However, on September 16, 2004, Romania filed a complaint against Ukraine with the International Court of Justice over the dispute «regarding the establishment of a single maritime border between the two states in the Black Sea in order to delimit their continental shelf and exclusive economic zones».

In its claim, Romania argued that despite signing a bilateral Cooperation and Neighbor Relations Agreement with Ukraine on June 2, 1997, as well as the Supplementary Agreement — both coming into force on October 22, 1997 — in which the two states had pledged to reach an agreement on the above issues, the negotiations that followed since 1998, had failed.

The jurisdiction of the Court was justified by the provisions of paragraph 4 of the Supplementary Agreement that stated, inter alia, that at the request of one of the parties, the dispute would be referred to the International Court of Justice, unless it is settled within a reasonable time, but no later than two years since the start of the negotiations.

The disagreement between the parties concerned the passage of the maritime border being established, particularly the role of the Snake Island located in the northwestern Black Sea about 20 nautical miles east of the Danube Delta.

On February 3, 2009 The UN ICJ ended the dispute by establishing a maritime border between Romania and Ukraine.

Unfortunately, Ukraine has ultimately lost out, since when delimiting the Ukraine-Romania border, the ICJ did not take into account the exclusive economic zone and the continental shelf of Ukraine’s Snake Island per Article 121, paragraph 2 of the Convention.

To be continued...

References:

1. Pro zatverdzhennya Morskoi doktryny Ukrainy na period do 2035 roku: Postanova Cabinetu Ministriv Ukrainy vid 07.10.2009, № 1307. (On Approving the Maritime Doctrine of Ukraine for the Period up to 2035: Resolution of the Cabinet of Ministers of Ukraine from October 7, 2009, #1307).
URL: https://zakon.rada.gov.ua/laws/show/1307-2009-%D0%BF.

2. Yoshifumi Tanaka, The International Law of the Sea, third edition (Cambridge University Press, 2019). – p. 554.

3. Konventsiia Organizatsii Ob`yednannykh Natsii z morskogo prava vid 10.12.1982, ratyfikovana Zakonom Ukrainy «Pro ratyfikatsiyu Konventsiia Organizatsii Ob`yednannykh Natsii z morskogo prava 1982 roku ta Ugody pro implementatsiyu Chastyny XI Konventsii Organizatsii Ob`yednannykh Natsii z morskogo prava 1982 roku» № 728-XIV vid 03.06.1999 // Vidomosti Verkhovnoii Rady Ukrainy. – 1999, № 31, stattya 254 (United Nations Convention on the Law of the Sea of December 10, 1982, ratified by the Law of Ukraine "On Ratification of the United Nations Convention on the Law of the Sea of 1982 and the Implementation Agreement for Part XI of the United Nations Convention on the Law of the Sea 1982" # 728-XIV from June 3, 1999, Bulletin of the Verkhovna Rada of Ukraine, 1999, #31, article 254).

4. Кratkoye izlozheniye resheniy, konsultativnykh zaklyuchenii i postanovleniy Mezhdunarodnogo Suda 2008-2012 (Summary of Judgments, Advisory Opinions and Orders of the International Court of Justice 2008-2012), UN, New York, 2014.
URL: https://www.icj-cij.org/files/summaries/summaries-2008-2012-ru.pdf - p. 85.

5. Constitutsiya Ukrainy vid 28.06.1996 // Vidomosti Verkhovnoii Rady Ukrainy.- 1996, № 30, stattya 141. (The Constitution of Ukraine of June 28, 1996, Bulletin of the Verkhovna Rada of Ukraine, 1996, #30, article 141).

6. Pro derzhavnyi kordon Ukrainy: Zakon Ukrainy vid 04.11.1991 // Vidomosti Verkhovnoii Rady Ukrainy. - 1992, № 2, stattya 5 (On the State Border of Ukraine: Law of Ukraine of November 4, 1991, Bulletin of the Verkhovna Rada of Ukraine, 1992, #2, Article 5).

7. Pro pryleglu zonu Ukrainy: Zakon Ukrainy vid 06.12.2018 р. // Ofitsiinyi visnyk Ukrainy.- 2019, № 4, stor. 11, stattya 105 (On the Contiguous Zone of Ukraine: Law of Ukraine from December 6, 2018, Official Bulletin of Ukraine, 2019, # 4, p. 11, Article 105). 

8. Pro vyklyuchnu morsku (economichnu) zonu: Zakon Ukrainy vid 16.05.1995 р. // Vidomosti Verkhovnoii Rady Ukrainy. - 1995, № 21, stattya 152 (On the Exclusive (Marine) Economic Zone: Law of Ukraine of May 16, 1995, Bulletin of the Verkhovna Rada of Ukraine, 1995, #21, Article 152).

9. Gospodarkyi kodeks Ukrainy від 16.01.2003 // Ofitsiinyi visnyk Ukrainy.- 2003, № 11, stor. 303, stattya 462 (The Economic Code of Ukraine of January 16, 2003 , Official Bulletin of Ukraine, 2003, #11, p. 303, Article 462).

10. Ugoda mizh Uryadom Ukrainy і Uryadom Respubliky Turechchina pro kordon economichnykh (morskykh) zon Ukrainy і Respubliky Turechchina vid 30.05.1994 (Agreement between the Government of Ukraine and the Government of the Republic of Turkey on the Border of Economic (Marine) Zones of Ukraine and the Republic of Turkey of 30 May 1994).
URL: https://zakon.rada.gov.ua/laws/show/792_008.

11. Dogovir pro vidnosyny dobrosusidstva і spivrobitnytstva mizh Ukrainoyu ta Rumuniyeyu vid 02.06.1997, ratyfikovanyi 17.07.1997 (Agreement on Good Neighborly Relations and Cooperation between Ukraine and Romania of June 2, 1997, ratified on July 17, 1997).
URL: https://zakon.rada.gov.ua/laws/show/642_003 .

12. Кratkoye izlozheniye resheniy, konsultativnykh zaklyuchenii i postanovleniy Mezhdunarodnogo Suda 2008-2012 (Summary of Judgments, Advisory Opinions and Orders of the International Court of Justice 2008-2012), UN, New York, 2014.
URL: https://www.icj- cij.org/files/summaries/summaries-2008-2012-ru.pdf. – p. 69.

13. Dogovir mizh Ukrainoyu ta Rosiiskoyu Federatsiyeyu pro spivrobitnytstvo u vykorystanni Azovskogo morya і Kerchenskoi protoky vid 24.12.2003 (Agreement Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait of December 24, 2003).
URL: https://zakon.rada.gov.ua/laws/show/643_205.

14. Rozporyadzhennya Prezidenta Ukrainy «Pro vnesennya zmin do Rozporyadzhennya Prezidenta Ukrainy vid 6 zhovntya 1998 roku № 515 «Pro okhoronu derzhavnogo kordonu Ukrainy v Azovskomu ta Chormonu moryakh і Kerchenskyi prototsi ta zabespechennya prav Ukrainy u vyklyuchniy (morskiy) economichniy zoni ta contynentalnomu shelfi u pivnichno-skhidniy chastyni Chornogo morya» vid 6 serpnya 1999 roku № 187/99-rp (Decree of the President of Ukraine On Amendments to the President of Ukraine’s Decree #515 of October 6, 1998 «On Protection of the State Border of Ukraine in the Azov and Black Seas and the Kerch Strait and the Protection of Rights of Ukraine in the Exclusive (Marine) Economic Zone and Continental Shelf in the North-East part of the Black Sea» from August 6, 1999, #187/99-rp).
URL: https://zakon.rada.gov.ua/laws/show/187/99-%D1%80%D0%BF.

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This publication has been produced with the support of the European Endowment for Democracy (EED). Its contents do not necessarily reflect the official opinion of EED. Responsibility for the information and views expressed in this publication lies entirely with the authors.