To The Hague for Help

The International Court of Justice will resolve the current dispute between Ukraine and Romania over certain Black Sea territories. Bucharest has kept its promise to refer the continental shelf delimitation problem to The Hague. Kyiv and Bucharest will now have to prove their cases to a third party. No one knows how long it will take the court to look into this matter, nor is it easy to say who will win.

“Romania’s decision to file a suit against Ukraine with the International Court was caused by lack of progress in the bilateral Romanian-Ukrainian talks. No essential headway has been made in the 24 rounds of talks since 1998,” said the BBC, citing Romanian government spokeswoman Despina Neagoe. Kyiv and Bucharest have had rather strained relations lately, primarily because of the still unresolved border problems that have marred the two countries’ cooperation in all other fields. The recent refusal of Romania’s foreign minister to visit Kyiv is ample proof of a crisis in the two countries’ relations. But it would be wrong to claim that Ukrainian- Romanian contacts have always been vague, to put it mildly. The first bilateral achievement was the signing of a good-neighbor and cooperation treaty in 1997. The next one was signed last year, when the presidents of Ukraine and Romania signed a state border agreement. But the two sides proved unable to reach a compromise in drawing up an agreement on continental shelf delimitation and exclusive economic zones in the Black Sea.

Bucharest’s intention to go to the Hague court hit the headlines a few months ago. The Romanian government has even set aside budgetary expenditures for applying to the UN’s highest judicial body. It is quite likely that the Romanians were spurred to this action by Ukraine’s construction of a deep-water navigable canal in the Danube delta, which broke Bucharest’s transportation monopoly on the river’s Black Sea segment. Experts have also linked the Hague lawsuit with the coming elections in Romania to be held in two months’ time. It should be noted that President Ion Iliescu led the oppositional Social Democratic (former Communist) Party of Romania before 2000, and it is the SDPU that criticized the signing of the Major Political Treaty with Ukraine. Even when he became president, Iliescu at times alleged that this document was disadvantageous to Bucharest. Romania’s ruling forces are still on the same track. The appeal to the Hague International Court may well be intended for domestic political consumption. The Romanian politicians who are now in power are grandstanding, trying to persuade the electorate that Bucharest will get the upper hand in The Hague’s proceedings. Should the result be different, they will claim they did their best to prove their standpoint but the judges failed, for some reason, to accept Romania’s arguments.

Ukraine has always sought a bilateral out-of-court settlement of the dispute, although Kyiv had equal right to appeal to the International Court (the two sides agreed on this as long ago as 1997). In essence, the appeal to The Hague may be considered a positive step. Both Romania and Ukraine have repeatedly said it is quite a civilized approach to solving this thorny problem. International law experts note that resolving disputes in The Hague is in any case better than enmity. Still, the ideal option would be for the two countries to make a deal without intermediaries. Since 1946 the International Court has handed down 79 rulings on various disputes (delimitation of land and sea borders, inviolability of territorial integrity, non-interference in internal affairs, granting asylum, etc.). There are twenty cases being examined in The Hague today.

To tell the truth, Kyiv is avoiding litigation in court primarily because this is a costly procedure. Some estimates indicate a country filing a lawsuit must spend up to ten million dollars. It may take five years for a case to be examined. Still, considering that the court has already dealt with this kind of dispute, it may require less time.

As we were going to press, official Kyiv had not yet announced its position on the Romanian lawsuit. One week ago Foreign Minister Kostiantyn Hryshchenko commented, “It was not our choice to go to the International Court, although this is not a problem for us. The only problem is that we will be creating good conditions for the law firms that both sides will be using.

If we want to give them a chance to cash in, let’s do so- someone apparently needs the case.” The minister pointed out that Ukraine “would prefer if we made a deal on our own.” “It’s just that we could do this another way. But if we have to do what the Romanians suggest, we will surely go to the International Court,” he said.

The problems of continental shelf and exclusive economic zones are a very complicated and delicate aspect of practically all countries’ relations. Each country tries to defend its interests as much as possible, with some states conducting talks for decades on end. One of the main problems that diplomats have been unable to sort out is setting the initial point for delimiting the two countries’ continental shelf and exclusive economic zones. Bucharest has also not been able to come to terms with the insular status of Zmiyiny. The Romanians are convinced that it is nothing but a rock. Bucharest has frequently complained that a 17-ha territory (Zmiyiny Island) cannot dominate a 300-km shoreline. Geologists claim that the continental shelf next to the island has some two-kilometer-deep deposits of oil and gas. Hence the great interest in a “fair” delimitation. The Romanians have even suggested delimiting the shelf and the exclusive economic zones without taking into account that Zmiyiny Island belongs to Ukraine. In this case our state would lose about 7,700 square kilometers of the Ukrainian shelf and economic zone. Ukraine’s Foreign Ministry insists that Zmiyiny is an island from any viewpoint.

The crucial point is that International Court rulings are not subject to appeal. If one side refuses to obey the order, the other can turn to the UN Security Council for help. But it is too early to discuss this.