Jon M. Van Dyke

Document Type



The 2009 case Maritime Delimitation in the Black Sea (Romania v. Ukraine) presented the International Court of Justice (ICJ) with an opportunity to define and give meaning to the ambiguous and disputed phrase in Article 121(3): “[r]ocks which cannot sustain human habitation or economic life of their own.” The Court declined to provide a definitive definition for these words in its opinion, but by determining that Ukraine’s tiny Serpents’ Island should have no impact whatsoever on the maritime boundary, the Court reconfirmed that small uninhabited islands will generally have limited or no impacts on delimitations and that such features should not generate extended maritime zones. Serpents’ Island (also called Snake Island and Ostrov Zmeinyy) is virtually the only island in the Black Sea, except for a few that hug the coasts. It has 0.17 square kilometers of land area (forty-two acres or seventeen hectares) and is thirty-five kilometers (about twenty nautical miles) east of the Danube Delta (also called Dragon’s Beard),4 which forms the border between Ukraine and Romania. It lacks freshwater resources and has never been inhabited historically, although it has had a lighthouse on it since the 1800s and recently Ukraine has built structures and a pier on it, apparently to strengthen its claim to the ocean space around it. Its name is said to have come from the snakes that lived in a temple built on the islet in ancient times. The ocean space around it has become a focus of great interest because recent explorations have indicated that high-quality oil and substantial amounts of natural gas may be found around this islet. Although sovereignty over Serpents’ Island was contested for many years, in 1997 Romania accepted that this feature belonged to Ukraine. Romania argued before the Court that Ukraine had agreed in the 1997 treaty that Serpents’ Island was a “rock” under Article 121(3) and therefore that it could not affect the maritime delimitation between the two countries, but Ukraine rejected that contention, stating that the reference to Article 121(3) was in a Romanian “declaration,” which Ukraine had not accepted, and that the Romanian assertion was “groundless.” The Court’s opinion, issued February 3, 2009, avoided giving a comprehensive definition of the words in Article 121(3), but it did address the role that Serpents’ Island should play in the delimitation and determined that this islet should have a twelve-nautical-mile territorial sea, but otherwise had no effect on the delimitation. Ukraine argued first that Serpents’ Island should be considered as part of Ukraine’s coast, because it “forms part of the geographical context and its coast constitutes part of Ukraine’s relevant coasts.” Romania responded by arguing that Serpents’ Island “constitutes merely a small maritime feature situated at a considerable distance out to sea from the coasts of the Parties.” The Court accepted Romania’s perspective on this matter, saying that “[t]he coast of Serpents’ Island is so short that it makes no real difference to the overall length of the relevant coasts of the parties.” The Court went on to say that Serpents’ Island cannot be viewed as part of Ukraine’s coast because it is “lying alone and some 20 nautical miles away from the mainland” and thus “is not one of a cluster of fringe islands constituting ‘the coast’ of Ukraine.”



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