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.

Dictionary.com 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.


[1] http://dictionary.reference.com/browse/island
[2] http://www.globelaw.com/LawSea/ls82_3.htm#article_121_regime_of_islands
[3] http://www.mlahanas.de/Greeks/Cities/SnakeIsland.html
[4] http://www.mfa.gov.ua/mfa/en/publication/content/8214.htm
[5] http://www.mlahanas.de/Greeks/Cities/SnakeIsland.html
[6] http://www.mlahanas.de/Greeks/Cities/SnakeIsland.html
[7] http://www.mlahanas.de/Greeks/Cities/SnakeIsland.html
[8] http://www.mfa.gov.ua/mfa/en/publication/content/8214.htm
[9] http://www.mlahanas.de/Greeks/Cities/SnakeIsland.html
[10] http://www.euractiv.com/en/enlargement/romania-resolves-snake-island-conflict-ukraine/article-179141?Ref=RSS

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Sunday, February 1, 2009

The Latest Israel-Hamas Conflict and Where Israel Should Go From Here

Last December, 2008, after a renewed rocket barrage from Hamas ended hopes of an extended ceasefire, Israel launched a large-scale retaliatory air and ground assault on the radical Muslim group in Gaza.

Three weeks, 1300 Palestinian deaths, and $2 billion worth of devastation later[1], not much seems to have changed, other than potential election gains for some.[2] Hamas may be weakened, but it is not broken, and its rocket attacks have not stopped.[3] Moreover, Hamas still has the support of the majority of Gazans.[4]

Indeed, if anything, the situation seems to have gotten worse for Israel, not better. Moderate Arab governments, particularly those of Egypt, Saudi Arabia, and Turkey are under more intense pressure than ever to defy Israel and support their Arab brothers in Gaza.[5] Support for Israel across the world has further plummeted as a result of the deadly scale of the operations in Gaza.[6] Worst of all, support amongst Palestinians for the Fatah-led Palestinian Authority, the government that Israel had hoped to bolster as a moderate alternative to Hamas, has all but evaporated, with Palestinians increasingly associating Fatah with Israel and thinking, perhaps rightly so, that Fatah does not have their best interests at heart.[7]

Although Israel demonstrated in the recent conflict that it can and will not hesitate to muster overwhelming military might, it has also shown that it can not achieve its goals through such force.

The fact that Israel had to intervene militarily in Gaza to try to fulfill its goals is indicative of the failure of its two-year-long attempt to isolate Hamas by blockading Gaza. In the short run, Israel had hoped that the blockade would cut off Hamas from its funding and weapons smugglers. In the long run, Israel had hoped that the blockade would make living conditions awful enough in Gaza for the Gazans to shift their support from Hamas to Fatah and maybe even to rebel against Hamas.

This complete blockade has not advanced either of Israel’s goals. It has not enabled short-term peace and has in fact worsened long-term prospects for peace: as the U.S.-Muslim Engagement Project stated in its recent publication, Changing Course: A New Direction for U.S. Relations with the Muslim World, “Israel’s… isolation of Gaza… undermine[s] security for all” and has ended up “encouraging extremism.”[8]

Israel should seek to change its current strategy rather than to continue to compensate for its failure by making more incursions into Gaza. Egypt, too, should strive for a more effective strategy, as it fears the growing influence and appeal of Hamas and its parent organization, the Muslim Brotherhood, amongst Egyptians. In the coming weeks and months, particularly after the new Israeli government takes over, Israel should work together with Egypt to jointly lift sanctions on purely economic products and activities that cross the Gaza border while intensifying crackdowns on weapons smuggling, especially the smuggling tunnels that bypass the Egypt-Gaza border. The Egyptians should improve their enforcement of their section of the Gaza border to ensure maximum efficiency, perhaps by raising the salaries of border guards, giving bonuses to guards for each tunnel they find and destroy, or through some other means. Perhaps an international peacekeeping force could help police the border as well. In addition, the Israeli and Egyptian navies might do well to enlist the help of other navies, perhaps the U.S. navy, to help make sure no weapons are smuggled into Gaza from the Mediterranean Sea.

Lifting some economic sanctions does not mean completely opening the border or leaving it unguarded. Indeed, Israel and Egypt should maintain all of the checkpoints that guard the Gaza border and should conduct thorough checks on anything and everything that passes through to ensure that no weapons get in or out. Nor should Israel and Egypt lift sanctions on absolutely everything; they should use export control models like those of the United States or some other country to determine whether a certain product or material could possibly be used in a weapon or have other military applications.

With these conditions in place, it would not seem so perilous for Israel and Egypt to allow economic activity into and out of Gaza. Such activity would have great long-term implications for Gaza and Israel, slowly, but surely lifting Gazans out of poverty and giving them some semblance of a normal life, which they would think twice about risking simply for the sake of radical, lofty goals of jihad and the overthrow of Israel. Moreover, if Israel were to allow economic activity into and out of Gaza and refrain from constantly invading it, Gazans would have a chance at prosperity and a better life, and perhaps then Gazans would not blame Israel and the West for whatever problems they might have and might develop a more favorable view of Israel.

Such a shift toward a prosperous, moderate Gaza would do more harm to Hamas than all of the bombs and troops Israel has ever sent its way. The bulk of Hamas’ support comes from Palestinians dissatisfied with their poverty and mistreatment by Israel but also with the corruption of past Palestinian governments; indeed, one of Hamas’ earliest functions was garbage collection, which had been largely neglected by the Palestinian Authority.[9] If Gazans were allowed a chance to prosper and were free from periodic devastation from Israel, they would probably be more hesitant to support a group whose stated goal is to wipe out the state of Israel, regardless of any other services it provides, for fear of losing their wealth and security.

When Gazans start to believe that they can obtain better lives through moderate means, then they will stop pursuing radical goals and supporting radical groups, like Hamas. If the Israeli government has the courage (in light of the view of much of the Israeli public) to encourage this idea, it will pay off in the long run. With a new American administration in place and a new Israeli one to come, and with Israeli operations finally at an end, for now, this may be as opportune a moment as ever for Israeli policy to shift toward this goal – and long-term peace.

[1]http://www.haaretz.com/hasen/spages/1057132.html
[2]http://www.time.com/time/world/article/0,8599,1873084,00.html?iid=tsmodule
[3]http://www.jpost.com/servlet/Satellite?cid=1232100165159&pagename=JPost%2FJPArticle%2FShowFull
[4]http://www.washingtonpost.com/wp-dyn/content/story/2009/01/23/ST2009012303518.html
[5]http://www.nytimes.com/2009/01/10/world/middleeast/10cairo.html?fta=y
[6]http://www.guardian.co.uk/world/2009/jan/13/gaza-israel-war-crimes
[7]http://query.nytimes.com/gst/fullpage.html?res=9F0CEFDC1F3CF936A25752C0A96F9C8B63
[8]http://www.usmuslimengagement.org/storage/usme/documents/Changing_Course_-_A_New_Direction_for_US_Relations_with_the_Muslim_World.pdf (p. 41)
[9]http://www.independent.co.uk/news/world/middle-east/hamas-plays-on-its-welfare-credentials-in-historic-elections-488243.html

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