‘equitable solution’,
204 this has been presumed in ICJ jurisprudence to be the
equidistance approach in situations of opposite and adjacent coasts.
205 The
equidistance line is subject to the consideration of minor equitable adjustments,
and subsequent verification that such an adjusted line does not cause marked
disproportion.
206
This methodology has previously been applied in the Black Sea itself: in Maritime Delimitation in the Black Sea, the ICJ determined that the north-south maritime
boundary between Romania and Ukraine should follow the equidistance principle.
207 Crimea served as the eastern baseline from which this boundary was
drawn, with the west coast of the Black Sea forming the western baseline. The
delimitation here would naturally follow the same path north-north-west (see
Fig. 16.1), subject to mitigating factors. Notably, however, Russia’s activities in
the Odessa gas field would not constitute such a factor: there is no tacit agreement
over the field’s ownership, and placing the field within Ukraine’s EEZ would not
have ‘catastrophic repercussions’ for Crimea, as required.
208
Delimiting the Black Sea in this way requires no comment on the sovereignty of
the waters to the east of the delimitation; rather, it defines the minimum maritime
zone Ukraine could claim, regardless of Crimea’s status. Accordingly, if the Odessa
gas field falls within Ukraine’s minimum claimable maritime zone, Russia’s operations in the field constitute a breach of duties under UNCLOS to refrain from
unlawful economic activities in Ukraine’s EEZ and continental shelf,
209 and ceasing
them brings Russia in compliance. The nexus between Russia’s new policy and the
tribunal’s likely determination has been noted in reports on the plan to halt production. The Russian lawyer Ilia Rachkov has suggested that Russia has a weak
argument with regard to the economic activities in the Odessa field, and RBK
Group reports that anonymous sources from within the Russian Government attribute the decision to the Foreign Ministry’s desire to pre-empt Ukraine’s argument.
210 This seems to be confirmed by the temporal proximity of the stop order
204 UNCLOS, Arts 74(1), 83(1).
205 See Tanaka (2006), pp. 121–122; Case Concerning the Continental Shelf (Libyan Arab
Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 13, para. 70; Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ
Rep 40, para. 230.
206 See, e.g., Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment) [2009] ICJ
Rep 61, paras. 115–122 (‘Romania v. Ukraine’); Case Concerning Maritime Dispute (Peru
v. Chile) (Judgment) [2014] ICJ Rep 3, para. 180. See also ITLOS, Case No 16 Dispute concerning
delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal
(Bangladesh/Myanmar), Judgment of 14 March 2012, para. 240.
207 Romania v. Ukraine, paras. 217–219, 133.
208 See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America) (Judgment) [1984] ICJ Rep 246, para. 237. Compare Romania v. Ukraine, paras.
197–198.
209 UNCLOS, Arts 58(3), 77(2).
210 See Tkachev, Fadeeva and Podobedova, ‘Mezhdu Krymom i Odessoj’, supra note 192.
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204 this has been presumed in ICJ jurisprudence to be the
equidistance approach in situations of opposite and adjacent coasts.
205 The
equidistance line is subject to the consideration of minor equitable adjustments,
and subsequent verification that such an adjusted line does not cause marked
disproportion.
206
This methodology has previously been applied in the Black Sea itself: in Maritime Delimitation in the Black Sea, the ICJ determined that the north-south maritime
boundary between Romania and Ukraine should follow the equidistance principle.
207 Crimea served as the eastern baseline from which this boundary was
drawn, with the west coast of the Black Sea forming the western baseline. The
delimitation here would naturally follow the same path north-north-west (see
Fig. 16.1), subject to mitigating factors. Notably, however, Russia’s activities in
the Odessa gas field would not constitute such a factor: there is no tacit agreement
over the field’s ownership, and placing the field within Ukraine’s EEZ would not
have ‘catastrophic repercussions’ for Crimea, as required.
208
Delimiting the Black Sea in this way requires no comment on the sovereignty of
the waters to the east of the delimitation; rather, it defines the minimum maritime
zone Ukraine could claim, regardless of Crimea’s status. Accordingly, if the Odessa
gas field falls within Ukraine’s minimum claimable maritime zone, Russia’s operations in the field constitute a breach of duties under UNCLOS to refrain from
unlawful economic activities in Ukraine’s EEZ and continental shelf,
209 and ceasing
them brings Russia in compliance. The nexus between Russia’s new policy and the
tribunal’s likely determination has been noted in reports on the plan to halt production. The Russian lawyer Ilia Rachkov has suggested that Russia has a weak
argument with regard to the economic activities in the Odessa field, and RBK
Group reports that anonymous sources from within the Russian Government attribute the decision to the Foreign Ministry’s desire to pre-empt Ukraine’s argument.
210 This seems to be confirmed by the temporal proximity of the stop order
204 UNCLOS, Arts 74(1), 83(1).
205 See Tanaka (2006), pp. 121–122; Case Concerning the Continental Shelf (Libyan Arab
Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 13, para. 70; Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ
Rep 40, para. 230.
206 See, e.g., Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment) [2009] ICJ
Rep 61, paras. 115–122 (‘Romania v. Ukraine’); Case Concerning Maritime Dispute (Peru
v. Chile) (Judgment) [2014] ICJ Rep 3, para. 180. See also ITLOS, Case No 16 Dispute concerning
delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal
(Bangladesh/Myanmar), Judgment of 14 March 2012, para. 240.
207 Romania v. Ukraine, paras. 217–219, 133.
208 See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America) (Judgment) [1984] ICJ Rep 246, para. 237. Compare Romania v. Ukraine, paras.
197–198.
209 UNCLOS, Arts 58(3), 77(2).
210 See Tkachev, Fadeeva and Podobedova, ‘Mezhdu Krymom i Odessoj’, supra note 192.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
311