Wednesday, February 11, 2009

What it Takes to be an Island: The Ukrainian-Romanian Dispute Over the Status of Snake Island

The following is the second of two potentially groundbreaking cases concerning maritime delimitation and island sovereignty that were pending in the International Court of Justice in 2008. defines an island as “a tract of land completely surrounded by water, and not large enough to be called a continent.”[1] The international community, by contrast, has had a hard time finding and agreeing upon a definition as straightforward or as universal.

In this era of fixed national boundaries, bountiful maritime resources, and global naval trade, adequately defining an island and distinguishing between an island and, say, a pile of rocks are more important than ever, with the extent of a nation’s maritime boundaries – and, by extension, its exclusive economic zones – hanging in the balance: Article 121, Section 3 of the Law of the Sea Convention of 1982 (LOSC) – the most recent attempt to establish an international consensus on the definition of an island and other naval guidelines – states that, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”[2]

This clause was the centerpiece of a long-standing dispute between Romania and Ukraine over the status of Snake Island, which was recently resolved in the International Court of Justice (ICJ). Snake Island, if it can be called an island, is a small, X-shaped landmass made of limestone in the middle of the Black Sea, right near the maritime border between Romania and Ukraine. Around 100 people[3] live on the landmass in a town called Bile Village,[4] and Odessa National University has a permanent scientific expedition on the landmass. In addition, Snake Island has a helicopter platform, radio and cell-phone towers, a lighthouse, a bank, and a post office, among other things.[5]

In ancient times, the landmass was best known as the final resting place of the Greek heroes Achilles and Patroclus. In modern times, it has become an important and controversial piece of the ever-changing Black Sea maritime boundaries. For nearly 150 years, Snake Island alternated between Russian and Ottoman rule, as it was located near the maritime border between the two empires; indeed, it was even the site of a naval battle between the two – the Battle of Fidonisi. In 1878, the landmass became part of a new, independent, Romanian state in the aftermath of another clash between the Russians and the Ottomans. Snake Island remained part of Romania until after WWII, when the Soviets, after having occupied it during the war, compelled Communist Romania to cede it to the Soviet Union. After the dissolution of the Soviet Union, custody of Snake Island fell to Ukraine.[6]

As it became clear that Snake Island itself would not be in its possession again, Romania began to argue, first with the Soviet Union, then with Ukraine, about how the landmass affected maritime boundaries. As tensions on the issue began to heat up in the mid 1990s, Romania and Ukraine agreed to take the case to the ICJ if they had not reached a separate agreement in 2 years; Romania would finally file the case in 2004. With the discovery of oil and natural gas in the seabed around the island – albeit only 2-3 years worth – the stakes are now arguably higher than ever.[7]

Throughout the case, Ukraine maintained that Snake Island was, in fact, an island, arguing that the small village and modern development of the landmass were indicators that the “human habitation” and “economic life” stipulated by Article 121 of the LOSC were taking place on the landmass, making it qualify as an island.[8]

Romania, by contrast, argued that Snake Island’s lack of fresh water and arable soil – it’s composed primarily of limestone – rendered it incapable of supporting “human habitation” on its own, which, therefore, made it a cliff, not an island. Furthermore, Romania accused Ukraine of building up and populating the landmass, thereby violating an earlier agreement with Romania where Ukraine would consider the landmass “uninhabited.”[9]

In reviewing this case, the ICJ had a chance to set a far-reaching precedent in international law about maritime delimitation. In interpreting Article 121 of the LOSC, the ICJ had a chance to establish the first clear international definition of an island.

The competing interpretations of Article 121 result in significantly different definitions of an island and would have very different implications for maritime delimitation. At first, Romania’s opinion may appear more reasonable: if a landmass cannot, by its own virtue, support human life, then it would seem illogical to consider it an island under the LOSC.

But, then again, even if Snake Island did have arable land and fresh water, would its size permit it to have enough of either to sustain human life on its own? Surely there are many tiny islands scattered across the globe that have vegetation and fresh water but still rely on outside aid to maintain its human population. By this logic, one could argue Ukraine is simply being practical by developing and supplying Snake Island from the mainland.

Ruling in favor of Ukraine would send a dangerous message to the rest of the world, as it would encourage other countries to populate and develop any of their remote landmasses in order to argue that it is sustaining human habitation and should therefore qualify as an island. In this fashion, countries could use the island status to claim a larger exclusive economic zone, potentially enabling them access to more resources and naval trade. Such a “development race” could play out on a grand scale in the Pacific Ocean, where numerous countries have claimed numerous stretches of ocean with many small landmasses that may or may not be already considered islands.

Yet ruling in favor of Romania could have an opposite but equally potent impact on maritime delimitation. Instead of building up islands to try to gain a larger portion of a sea or ocean, countries could instead question the validity of the status of numerous landmasses throughout the world’s oceans and seas, which could roll back the existing maritime boundaries of some countries to the benefit of others.

Rather than to set either of these precedents, the ICJ dodged the issue, making no ruling on the status of Snake Island but granting Romania 80% of the disputed Black Sea waters.[10] While this latest dispute seems to have been resolved, the controversy over the definition of an island and what having the status of an island means for maritime delimitation remains unresolved. With many more maritime disputes in other regions likely to come, the ICJ may not be able to dodge the island question forever. International lawmakers would do well to use this time to consider what the answer should be, for it will have implications on maritime boundaries for years to come.


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Paige said...

Well, that appeased the two countries for now but I don't think the conflict wont be resolved until its decided on who gets the Snake Island.. They're just shelving the issue now but I'm sure that in a few years, we might be seeing or hearing of the issue of Snake Island again

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Anonymous said...

You say that "Snake Island was ruled an island". That is just not true and the Court's decision says nothing about that; your note (no 10) doesn't say that either. THe court said that 'Snake Island' has no influence on the drawing of the border between the two countries.

Romania recognized that Snake Island belongs to Ukraine in the Romanian-Ukrainian treaty of 2003 so there will be no conflict over that issue.

Foreign Affairs Guru said...


I see now you are right that the ICJ did not rule on Snake Island's status; I apologize for my inaccurate statement and for incorrectly citing my source -- I edited my post accordingly.

Thank you for correcting me.