Abstract
Does the submission that the Baltic Sea is the world’s most regulated international marine area also apply to maritime boundary delimitations? Probably so, according to this chapter, which addresses existing and past boundary agreements in the Baltic Sea. Following a general review of the law applicable to maritime boundary delimitation, it is concluded that even if the Baltic Sea is already fully covered by coastal zones, and that the areas of high seas or deep seabed have thus disappeared, there are still some outstanding issues and overlapping claims. Nevertheless, such a degree of completeness is unique in international comparison and, what is more, all boundary agreements in the Baltic Sea have been settled by negotiations, outside courts and tribunals.
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Notes
- 1.
Fisheries Case, Judgment of 18 December I95I (1951) International Court of Justice (ICJ) Reports 1951, 116, 132.
- 2.
T. Treves “Law of the Sea” in R. Wolfrum (ed) Max Planck Encyclopedia of Public International Law Online (Oxford, Oxford University Press, 2011) paras. 11–21 (available at <www.mpepil.com>), who uses the following title above these paragraphs: “The Law of the Sea as a Codified Branch of International Law.”
- 3.
It concerned only the regime of the territorial waters, but mainly due to the divergent opinions that existed at that time concerning the breadth of that maritime zone, the conference failed to adopt a convention on this subject. For an authoritative account of the law of the sea as it existed at that time, see the three volumes of G.C. Gidel Le droit international public de la mer: le temps de paix (Mellottée, Chateauroux, 1932–1934).
- 4.
Four conventions were adopted at that time: Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958 (1966) 516 United Nations Treaty Series (UNTS) 205, 206–22; Convention on the Continental Shelf of 29 April 1958 (1965) 499 UNTS 311, 312–320; Convention on the High Seas of 29 April 1958 (1964) 450 UNTS 11, 82–102; and Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958 (1967) 559 UNTS 285, 286–300 all available at <https://treaties.un.org/doc/Treaties/1966/03/19660320%2002-16%20AM/Ch_XXI_01_2_3_4_5p.pdf>. Hereinafter 1958 conventional system.
- 5.
United Nations Convention on the Law of the Sea of 10 December 1982 (1998) 1833 UNTS 3, 397–581 available at <www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf>. Hereinafter UNCLOS.
- 6.
See remarks of the Secretary-General of the United Nations, Ban Ki-moon, made at the occasion of the commemoration of the thirtieth anniversary of the opening for signature of the UNCLOS, on 10 December 2012, before the General Assembly available at <http://www.un.org/press/en/2012/sgsm14710.doc.htm>.
- 7.
Remarks by Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea, on 10 December 1982 available at <https://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf>.
- 8.
As noted in K. Gustafson Juras, J.E. Noyes and E. Franckx Law of the Sea in a Nutshell 2nd (West Publishing Company, St. Paul, Minnesota, 2010) 97.
- 9.
International Hydrographic Organization Limits of Oceans and Seas (Special Publication N° 28) 3rd (Imp. Monégasque, Monte-Carlo, 1953) 4–5 available at <http://www.iho.int/iho_pubs/standard/S-23/S23_1953.pdf>. Norway is thus not included for present purposes.
- 10.
The Russian enclave of Kaliningrad adds to its complexity.
- 11.
UNCLOS , note 5 at art. 15 reads: “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.” Only minor drafting changes are to be noted when this article is compared to the corresponding article of the 1958 Convention on the Territorial Sea and Contiguous Zone, note 4 at art. 12.
- 12.
The median line applies between opposite states, whereas equidistance governs the delimitation between adjacent states.
- 13.
1958 Convention on the Continental Shelf , note 4 at art. 6 reads: “1) Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. 2) Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.”
- 14.
The term “décodification” was coined in this respect by T. Treves “Codification du droit international et pratique des États dans le droit de la mer” (1990) 223 Recueil des cours de l’Académie de droit international de la Haye 9, 104.
- 15.
UNCLOS , note 5 at art. 83 reads: “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in art. 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution .”
- 16.
North Sea Continental Shelf Cases, Judgment of 20 February I969 (1969) ICJ Reports 3, 36–41 paras. 60–69.
- 17.
Ibid., 41–45 paras. 70–81.
- 18.
Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrein, Merits, Judgment of 16 March 2001 (2001) ICJ Reports 40, 94 para. 176. This finding of the ICJ seems therefore to drastically reduce the persuasive force of the remarks made by a country like Belgium in its declaration when signing the UNCLOS, stating that “it regrets that the concept of equity, adopted for the delimitation of the continental shelf and the exclusive economic zone , was not applied again in the provisions for delimiting the territorial sea .”
- 19.
UNCLOS , note 5 at art. 74.
- 20.
D.R. Rothwell and T. Stephens The International Law of the Sea 2nd (Hart Publishing, Oxford, 2016) 421.
- 21.
S. Yanai “International Law Concerning Maritime Boundary Delimitation ” in D.J. Attard, M. Fitzmaurice and N.A.M. Gutiérrez (eds) The IMLI Manual on International Maritime Law, Volume I, The Law of the Sea (Oxford University Press, Oxford, 2014) 304, 306–307.
- 22.
North Sea Continental Shelf Cases, note 16 at 53 para. 101, where the ICJ states: “[D]elimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances.”
- 23.
As stressed by M.D. Evans “Maritime Boundary Delimitation ” in D.R. Rothwell, A.G.O. Elferink, K.N. Scott and T. Stephens (eds) The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015) 254, 258.
- 24.
UNCLOS , note 5 at art. 311(1).
- 25.
The term “in theory” is used, because there are in reality but a few countries bound by the 1958 Convention on the Continental Shelf today, that are not at the same time also a party to the UNCLOS. It concerns the following five countries: Cambodia, Colombia, Israel, United States and Venezuela. None of these states border the Baltic Sea .
- 26.
Germany. This country needed to ratify the UNCLOS before its entry into force if it wanted the seat of the International Tribunal for the Law of the Sea to be located in Hamburg.
- 27.
Estonia was the last Baltic Sea coastal state to ratify the UNCLOS on 16 August 2005.
- 28.
J.I. Charney “Progress in International Maritime Boundary Delimitation Law” (1994) 88 American Journal of International Law 227, 228.
- 29.
It concerns Denmark and Russia, who both did so at the time of ratification. Information available at <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Denmark%20Upon%20ratification>.
- 30.
The present author has served as a regional expert for the Baltic Sea within the framework of a project set up by the American Society of International Law during the late 1980s, sponsored by the Ford and Mellon Foundations, which intended to provide an in-depth examination of the state practice arising from more than 100 existing ocean boundary delimitations . Two meetings, gathering all participants, were organized in order to outline and subsequently discuss the results of the project. A first one was held at Washington, D.C., 13–14 December 1988. The second one took place at Airlie, Virginia, 13–16 December 1989. Once the book, entitled International Maritime Boundaries, was published in 1993 (Volumes I and II), it was decided to prepare supplements at regular intervals. Volume III appeared in 1998, Volume IV in 2002, Volume V in 2005, Volume VI in 2011, and Volume VII in 2016. This part of the project is still running at present. In 1997, moreover, a CD-ROM version of this book was released. On 7 April 1994 the Certificate of Merit in the category of “high technical craftsmanship and high utility to practising lawyers and scholars” was attributed by the Executive Council of the American Society of International Law to this book.
- 31.
Protocol Concerning the Delimitation of Polish and Soviet Territorial Waters in the Gulf of Gdansk of the Baltic Sea of 18 March 1958 (1959) 340 UNTS 89, 94–96.
- 32.
Treaty on the Continental Shelf in the Gulf of Gdansk and the Southeastern Part of the Baltic Sea of 28 August 1969 (1971) 769 UNTS 75, 82–86.
- 33.
Indeed, the above-mentioned 1958 Protocol (note 32) was special in that it provided different terminal points for Poland, located three nautical miles seaward from the terminal point of the Polish-Soviet land boundary, and the former Soviet Union, located 12 nautical miles from that same starting point.
- 34.
Treaty Concerning the Delimitation of the Continental Shelf in the Baltic Sea of 29 October 1968 (1971) 768 UNTS 253, 260–264.
- 35.
Protocol Note Concerning the Boundary in LĂĽbeck Bay of 29 June 1974, reprinted in English translation in (1976) 74 Limits in the Seas 1.
- 36.
Agreement about the Delimitation of the Continental Shelf of 22 June 1978 (1979) 1147 UNTS 193, 198–199.
- 37.
Indeed, the above-mentioned 1974 Protocol (note 36) only concerned a boundary of about 8 nautical miles, whereas the 1978 Agreement (note 37) concerned an area devoid of special features like islands and also measured only about 29 nautical miles.
- 38.
Agreement on the Delimitation of the Continental Shelf and of the Swedish Fishing Zone and the Soviet
Economic Zone in the Baltic of 18 April 1988 (2001) 1557 UNTS 275, 283–285.
- 39.
Agreement on the Delimitation of the Continental Shelf and the Fishery Zones of 10 February 1989 (1999) 1590 UNTS 361, 365–366.
- 40.
Because the Baltic Sea is totally covered by exclusive economic zones of coastal states , the second new zone created by these UNCLOS III negotiations, i.e. the Area, is of no particular interest to the region.
- 41.
Even though the ICJ had already hinted a few times at this possibility, it was only in 1985 that this Court firmly stated that the exclusive economic zone did form part of customary international law. About this gradual development, see Gustafson Juras, Noyes and Franckx, note 8 at 256–258.
- 42.
The 1988 Agreement (note 39) is a good example as indicated by its title.
- 43.
Agreement Concerning the Junction Point of the Maritime Boundaries in the Baltic Sea of 30 June 1989 (1999) 1590 UNTS 299, 306–307.
- 44.
E. Franckx “Maritime Boundaries and Regional Cooperation in the Baltic” (1992) 20 (issue 1–3) International Journal of Legal Information 18.
- 45.
Agreement on the Maritime Delimitation in the Gulf of Riga, the Strait of Irbe and the Baltic Sea of 12 July 1996 (2001) 1955 UNTS 345, 355–360.
- 46.
Two treaties were concluded on the same day: 1) Treaty on the Lithuanian-Russian State Border of 24 October 1997, reprinted in an unofficial English translation by the present author in E. Franckx “New Maritime Boundaries Concluded in the Eastern Baltic Sea Since 1998” (2001) 16 (issue 4) International Journal of Marine and Coastal Law 645, 655–655; and 2) Treaty on the Delimitation of the Exclusive Economic Zone and the Continental Shelf in the Baltic Sea of 24 October 1997, reprinted in English translation in E. Franckx “Two More Maritime Boundary Agreements Concluded in the Eastern Baltic Sea in 1997” (1998) 13 (issue 2) International Journal of Marine and Coastal Law 274, 282–283.
- 47.
Agreement on the Delimitation of the Territorial Sea , Exclusive Economic Zone and Continental Shelf in the Baltic Sea of 9 July 1999, reprinted in English translation in Franckx, New Maritime Boundaries, note 47 at 657–658.
- 48.
Treaty on the Delimitation of the Maritime Areas in the Gulf of Narva and the Gulf of Finland of 18 May 2005, reprinted in an unofficial French translation by the present author in E. Franckx and M. Kamga “L’existence éphémère du Traité de délimitation maritime entre la République d’Estonie et la Fédération de Russie en mer Baltique” (The Short Existence of the Maritime Delimitation Agreement in the Baltic Sea Between the Republic of Estonia and the Russian Federation) (2008) 12 Annuaire du Droit de la Mer 2007 393, 421–423.
- 49.
On this highly exceptional practice of withdrawing one’s signature as applied to this particular delimitation agreement, see ibid., 394–395 and 404–407.
- 50.
- 51.
It concerns the 1974 Protocol (note 36).
- 52.
1968 Treaty (note 35).
- 53.
See for instance the 1988 Agreement (note 39).
- 54.
Agreement on the Delimitation of the Exclusive Economic Zones and the Continental Shelf in the Baltic Sea of 10 April 2014, not yet published in UNTS but English translation already available at <https://treaties.un.org/doc/Publication/UNTS/No%20Volume/53412/Part/I-53412-080000028045a3bc.pdf>.
- 55.
Agreement on the Common Maritime Boundary Point in the Baltic Sea of 30 April 1997, reprinted in English translation in Franckx, Two More Boundary Agreements, note 47 at 281.
- 56.
Agreement on the Common Maritime Boundary Point in the Baltic Sea of 16 January 2001 (2011) 2474 UNTS 43, 45–46.
- 57.
See note 50 and accompanying text.
- 58.
1999 Agreement (note 48).
- 59.
2005 Treaty (note 49), as slightly modified in 2014 (note 51 and accompanying text).
- 60.
As already alluded to above with respect to the tripoint negotiations being held between Lithuania, the Russian Federation and Sweden.
- 61.
Franckx, note 45 at 18.
- 62.
E. Franckx “Denmark-German Democratic Republic (Report Number 10–11)” in J.I. Charney and L.M. Alexander (eds) International Maritime Boundaries, Vol. 2, (Martinus Nijhoff, Dordrecht, 1993) 2087, 2089.
- 63.
E. Franckx “Region X: Baltic Sea Maritime Boundaries” in J.I. Charney and L.M. Alexander (eds) International Maritime Boundaries, Vol. 1, (Martinus Nijhoff, Dordrecht, 1993) 345, 359.
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Franckx, E. (2018). Gaps in Baltic Sea Maritime Boundaries. In: Ringbom, H. (eds) Regulatory Gaps in Baltic Sea Governance. MARE Publication Series, vol 18. Springer, Cham. https://doi.org/10.1007/978-3-319-75070-5_2
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