International Journal

on Marine Navigation

and Safety of Sea Transportation

Volume 6

Number 3

September 2012

437

1 INTRODUCTORY COMMENTS

In order to be able to tackle the issue of maritime de-

limitation according to the rules of the law of the

34 The project started during the late 1980s and intended to provide an in-

depth examination of the state practice arising from the more than 100 existing

maritime boundary delimitation agreements already concluded at that time.

The outcome of this project is reflected in the International Maritime Boundary

series, published by Martinus Nijhoff, of which five volumes have already seen

the light of day between 1993 and 2005. A sixth volume will appear in 2011.

35 Salmon, J. (ed.) 2001, Dictionnaire de droit international public, Bruylant,

Brussels, pp. 375 and 389. In English this latter branch of law is called “Admi-

ralty Law”.

sea, it seems appropriate to first introduce the reader

to a number of maritime zones, as well as certain

rules applicable therein, of particular interest here.

At present, the law of the sea is codified by

means of the United Nations Convention on the Law

of the Sea.

This document, also called the Consti-

36 United Nations Convention on the Law of the Sea. Multilateral convention,

10 December 1982, United Nations Treaty Series, vol. 1833, 397-581. This

convention entered into force on 16 November 1994 (available at

<www.un.org/ Depts/los/convention_agreements/texts/unclos/unclos_e.pdf).

At the time of writing there were 160 states party to the convention, as well as

the European Community. Hereinafter cited as 1982 Convention.

Maritime Delimitation in the Baltic Sea: What

Has Already Been Accomplished?

E. Franckx

Research Professor, Member of the Permanent Court of Arbitration

President of the Department of International and European Law, Brussels, Belgium

ABSTRACT: To write a legal paper for an audience consisting primarily of experts in the field of navigation,

transport, ocean engineering and maritime technology is not an easy task. Finding an appropriate box to tick

when having to indicate the topic of the contribution when the title of the present contribution was submitted

to the organizers of the conference, represented already a first hurdle. In the list of about 90 possibilities, not

one really fitted the subject matter of the present contribution. This was particularly worrisome, because the

instructions here read: “Choose maximum three topics”. Consequently, I would particularly like to thank the

organizers of the conference for having stretched somewhat the purview of the conference in order to accom-

modate a legal paper. The next difficulty, of course, rests on the shoulders of the present author, for he will

have to write a legal paper understandable to an audience of which not all members may be familiar with the

international law of the sea. Having served as a regional expert on maritime delimitation with respect to the

Baltic Sea in a world-wide project initiated by the American Society of International Law, and still ongoing

today,

a good number of publications by the present author on this topic have appeared in legal journals or

specialized books. Despite the normal practice in legal papers of making extensive use of footnotes, the pre-

sent paper will only make use of a minimum number of other references, in order to enhance its readability

for non-lawyers. Instead, it will provide a listing in annex of the writings by the present author on the subject

to which the interested reader, wanting to find out more concrete guidelines and information, may readily

turn.

The present paper, first of all, is not concerned with maritime law -- a term to be found in the above-

mentioned list -- but with the law of the sea. These two concepts, even though they might have been confused

in the past, are today clearly distinguished from one another. The law of the sea concerns the rules of interna-

tional law governing the different maritime zones and the activities carried out there. It forms a branch of in-

ternational law, for it concerns mainly the relationship between states and is consequently also sometimes

called “international law of the sea” or even “international public law of the sea”. Maritime law, on the other

hand, is part of the national law of a state, for it deals with private interests at sea in general, and with the rela-

tionship between those who exploit ships and those who make use of them more particularly. It is therefore

sometimes also called “commercial maritime law”.

After having clarified a few crucial law of the sea notions, the present paper tries to bring some order in the

maritime boundary agreements concluded so far in the Baltic Sea. It does so by taking a major political event

as caesura, namely the disappearance of the former Soviet Union from the political map of the world during

1991. Finally, some concluding remarks will try to describe the present state of affairs, while comparing it to

the situation as it existed on the eve of this major political event of 1991.

438

tution for the Oceans,

is at present adhered to by

all states surrounding the Baltic Sea, including the

European Union with respect to those areas for

which it is competent. This document creates a

number of maritime zones of which the most im-

portant are, for present purposes at least, the territo-

rial sea, the continental shelf and the exclusive eco-

nomic zone.

The territorial sea is a zone where the coastal

state exercises sovereignty as on its land territory,

with certain exceptions such as the right of innocent

passage for foreign vessels (1982 Convention,

Arts 2-32). The continental shelf and the exclusive

economic zone are both zones of functional jurisdic-

tion, meaning that the coastal state does not exercise

sovereignty over these maritime zones, but only cer-

tain sovereign rights. With respect to the continental

shelf, these sovereign rights are primarily related to

the living and non living resources of the sea-bed

and subsoil (id., Arts 76-85), and with respect to the

exclusive economic zone these sovereign rights are

moreover related to those same resources of the su-

perjacent waters (id., Arts 55-75). All these zones

are limited in distance: The territorial sea to a max-

imum of 12 nautical miles (nm) (id., Art. 3), the con-

tinental shelf and the exclusive economic zone to

200 nm (id., Arts 76(1) & 57 respectively). Only the

continental shelf can in certain locations extend be-

yond this latter limit (id., Art. 76(4-8)), but because

of the restricted size of the Baltic Sea, this eventuali-

ty does not apply there.

All these maritime zones are measured starting

from the so-called baseline. This can be either the

normal baseline, meaning the low-water line along

the coast as marked on large-scale charts officially

recognized by the coastal state (id., Art. 5), or a

straight baseline in case the coastline is deeply in-

dented and cut into or if there is a fringe of islands

located in front of it (id., Art. 7). Under certain cir-

cumstances, moreover, bays can be closed off by

means of a straight baseline measuring not more

than 24 nm (id., Art. 10). It should nevertheless be

noted that the influence of straight baselines on mar-

itime delimitation in general, and in the Baltic Sea

more particularly, remains in most cases negligible

for it will rather be the salient features on the coast-

line which will resort effect in this respect.

Historically, the territorial sea preceded the conti-

nental shelf, and the latter in turn preceded the ex-

clusive economic zone. The origin of the territorial

sea predates the creation of modern international law

and was for the first time codified in the 1958 Con-

37 Expression used by one of the founding fathers of the 1982 Convention. See

‘A Constitution for the Oceans’, Remarks by Tommy T.B. Koh, of Singapore,

President of the Third United Nations Conference on the Law of the Sea

(available at <www.un.org/Depts/los/convention_agreements/texts/koh

_english.pdf>).

vention on the Territorial Sea and the Contiguous

Zone.

The origin of the continental shelf is usually

related to the Truman Proclamation of 1945. This

concept was later cast in legal wording by the Inter-

national Law Commission of the United Nations and

incorporated in the 1958 Convention on the Conti-

nental Shelf.

The concept of the exclusive eco-

nomic zone, in turn, is a creation of the negotiations

leading up to the 1982 Convention, where it was for

the first time codified.

Delimitation of these maritime zones, finally, is

necessary either between adjacent states, or where

the distance between two opposite states is less than

two times the maximum extent of a particular zone.

Given the fact that the Baltic Sea is nowhere more

than 400 nm wide, coastal states are obliged to con-

clude delimitation agreements not only with adja-

cent, but each time also with opposite states. The

rules applicable to delimitation of these different

zones are not identical, and have sometimes evolved

over time between the United Nations codification

efforts of 1958 and 1982. As far as the territorial sea

is concerned, the rules remained identical and con-

sist of three elements: 1) agreement; 2) if no agree-

ment proves possible, the median line every point of

which is equidistant from the baseline becomes ap-

plicable; 3) unless historic title or special circum-

stances demand a different delimitation line.

similar rule existed in 1958 with respect to the de-

limitation of the continental shelf, the only substan-

tial difference being that historic title disappeared as

possible exception to the application of the equidis-

tant line.

However, this rule was not retained in

the 1982 Convention, mainly because, as clearly in-

dicated by the International Court of Justice in 1969,

the application of the equidistance principle to con-

vex and concave coasts may well lead to highly in-

equitable results.

Instead, the delimitation rule

with respect to the continental shelf has been

stripped of any substantial guidance criteria and only

retains the obligation for parties “to achieve an equi-

38 Convention on the Territorial Sea and the Contiguous Zone. Multilateral

convention, 29 April 1958, UNTS, vol. 516, 205, 206-224. This convention

entered into force on 10 September 1964 (available at <un-

treaty.un.org/ilc/texts/instruments/ eng-

lish/conventions/8_1_1958_territorial_sea.pdf>). Hereinafter 1958 TZ Con-

vention. Of all Baltic Sea coastal states at present, only Estonia, Poland and

Sweden are not a party to this convention. Latvia and Lithuania acceded in

1992. The German Democratic Republic acceded in 1973, but Germany never

became a party.

39 Convention on the Continental Shelf. Multilateral convention, 29 April

1958, United Nations Treaty Series, vol. 499, 311, 312-320. This convention

entered into force on 10 June 1964 (available at <un-

treaty.un.org/ilc/texts/instruments/ eng-

lish/conventions/8_1_1958_continental_shelf.pdf>). Hereinafter 1958 CS Con-

vention. Of all Baltic Sea coastal states at present, only Estonia and Lithuania

are not a party to this convention. Latvia acceded in 1992. The German Dem-

ocratic Republic acceded in 1973, but Germany never became a party.

40 1958 TS Convention, Art. 12(1) and 1982 Convention, Art. 15.

41 1958 CS Convention, Art. 6(1-2).

42 North Sea Continental Shelf Cases (Denmark v. Germany; The Netherlands

v. Germany), 1969 ICJ Reports 3.

439

table solution”.

The delimitation rule with respect

to the exclusive economic zone is identical to that of

the continental shelf.

This absence of any concrete guidance at present

with respect to the rules of delimitation concerning

the continental shelf and the exclusive economic

zone has led to a marked increase in delimitation

cases being submitted before the International Court

of Justice or arbitral tribunals. This seems not ab-

normal, because states very often have totally differ-

ent perceptions of what constitutes an “equitable so-

lution” in a particular delimitation dispute they are

confronted with. Nevertheless, it is to be noted that

so far not one single maritime boundary within the

Baltic Sea has been arrived at by means of such third

party dispute settlement procedures. Instead, parties

have up till now always managed to solve these is-

sues by diplomatic means.

Finally, it can be added that there appears to be a

natural tendency for states to conclude maritime

boundary delimitation agreements first in areas

where few so-called special circumstances are pre-

sent. As a result, the maritime boundaries still to be

concluded more often than not are characterized by

the presence of such complicating factors. Islands

are one such factor, especially when they are located

far from the mainland, are small in size, or prove to

be uninhabited. No fixed rules exist in international

law with respect to the weight to be attributed to is-

lands in general. Especially if one or more of the

just-mentioned situations apply to islands, the exact

weight to be given to them remains highly uncertain.

Either full effect can be attributed to them, or no ef-

fect, or in fact any gradation in between, depending

on what the parties, or a court or tribunal as the case

may be, consider to be equitable under the specific

circumstances of the case. If the median line were to

be applied between two opposite states, full effect

would entail that the median line is calculated start-

ing from the island, whereas no effect would imply

that the parties involved agree to draw a line every

point of which will be equidistant from their respec-

tive mainland. In the latter case it is as if the island

simply did not exist, at least not from a maritime de-

limitation point of view. As mentioned above, all

gradations in between these two extremes are possi-

ble as well.

2 MARITIME DELIMITATION IN THE BALTIC

SEA UNTIL 1991

Four different periods can be distinguished when

trying to categorize the maritime boundary agree-

43 1982 Convention, Art. 83(1).

44 Id., Art. 74(1)

ments concluded so far in the Baltic Sea region.

Three of them relate to the period up to 1991.

A first period concerns the years 1945-1972.

This period started with a territorial sea agreement

concluded between Poland and the former Soviet

Union in 1958 and ended with the conclusion be-

tween the same countries of an additional agreement

concerning the continental shelf in 1969. This first

period is characterized by the fact that all these

agreements were concluded between former Eastern

bloc countries, with the exception of the involve-

ment of neutral Finland. This should not come as a

surprise, for it provided several political advantages

for the Eastern bloc on the international level, as for

instance the 12 nm territorial sea claim of the former

Soviet Union, explicitly imbedded in the 1958

agreement just mentioned, and the fact that the for-

mer German Democratic Republic, at a time that this

country was not allowed to participate in the law of

the sea negotiations and the ensuing 1958 conven-

tions, was nevertheless able to claim a continental

shelf of its own, which was at that time contested by

the former Federal Republic of Germany.

A second period concerns the years 1973-1985.

This period starts with the conclusion of the

so-called Grundlagenvertrag between both Germa-

nies in 1972, which made it possible for them to en-

ter into formal treaty arrangements, including those

relating to their maritime boundary in the Baltic Sea.

This resulted in the conclusion of such an agreement

in 1974 delimiting the waters of Lübeck Bay. Since

both Germanies were also admitted as members to

the United Nations in 1973, it moreover opened the

door for the conclusion of agreements between the

two blocs, a typical feature of the maritime delimita-

tion agreements concluded during this period. In

1978, for instance, the former German Democratic

Republic settled its continental shelf delimitation

with Sweden. No matter how important all these

agreements may have been from a political point of

view, their importance from a maritime delimitation

point of view remained rather slim. The 1974

agreement between the two Germanies only con-

cerned a maritime boundary line of about 8 nm and

the 1978 agreement between the former German

Democratic Republic and Sweden was rather easy to

determine, because of the absence of any special fea-

tures in the area to be delimited, and rather short as

well, for the delimitation line finally agreed upon

only had an overall length of 29 nm.

A third period concerns the years 1985-1990, i.e.

until the dissolution of the former Soviet Union.

This has by far been the most productive period as

well as the most interesting one from a delimitation

point of view. Indeed, during this rather short peri-

od, spanning only half a decade, more maritime de-

limitation agreements were concluded than during

440

the 40 preceding years. It is also the most interest-

ing one, for most of them delimit areas where is-

lands or other special circumstances are to be noted.

Some of them merely consolidated previously con-

cluded agreements between the parties. It should not

be forgotten that the notion of the exclusive econom-

ic zone had in the meantime become well-

established.

Some treaties consequently only

brought some order in previously concluded agree-

ments by broadening their application to the exclu-

sive economic zone. The former Soviet Union con-

cluded two such agreements in 1985 with Finland

and Poland. But most of them added new segments

in areas burdened by islands or other special circum-

stances. The 1984 agreement between Denmark and

Sweden is a good example, for the Danish islands of

Bornholm, Christianso and Fredrikso as well as the

uninhabited Swedish island of Utklippan, all located

in the Baltic Sea proper, complicated the delimita-

tion negotiations. Even more problematic was the

delimitation between Sweden and the former Soviet

Union, because both parties had totally opposite

opinions on the effect to be given to the Swedish is-

lands of Gotland and Gotska Sandön, both located at

some distance from the coast: According to Sweden

full effect should be given to these islands, while ac-

cording to the former Soviet Union they should have

no effect at all for according to this country the me-

dian line was to be calculated starting from the Sovi-

et and Swedish mainland instead. After some

20 years of negotiations both parties finally reached

a compromise agreement in 1988 in which the dis-

puted area was divided by attributing 75 % to Swe-

den and 25 % to the former Soviet Union, compen-

sated by reciprocal fishing rights in each other’s

zone so created in reverse percentages, i.e. 75 % So-

viet rights in the Swedish part of the formerly dis-

puted zone and 25 % Swedish rights in the Soviet

part. In 1988 Denmark and the former German

Democratic Republic reached an agreement, where-

by the Danish islands of Lolland, Falster, Møn and

Bornholm and the German islands of Rügen and

Greifswalder Oie all influenced the final line agreed

upon. When Poland and Sweden reached an agree-

ment the year after, they encountered exactly the

same problem as the one encountered between the

former Soviet Union and Sweden, namely the exact

weight to be attributed to the island of Gotland. It

was solved in a similar manner in the

1989 agreement as well, namely by attributing 75 %

of the disputed zone to Sweden and 25 % to Poland.

Atypical was the agreement concluded during this

period between the former German Democratic Re-

public and Poland in 1989, for it totally disregarded

45 By coincidence, it was also in 1985 that the International Court of Justice

stated that the exclusive economic zone had become part of customary law.

See Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta),

1985 ICJ Reports 13.

a previously concluded continental shelf boundary

when adapting this old 1968 line to new circum-

stances. This period can be concluded by mention-

ing the adoption of a first tri-junction point agree-

ment in the Baltic Sea, reached between Poland, the

former Soviet Union and Sweden in 1989 as well.

At the eve of the dissolution of the former Soviet

Union, therefore, the delimitation of maritime zones

in the Baltic Sea had reached a very advanced stage,

not easily encountered in other regions around the

world, even though some of them, like the North

Sea, did not know of the political divide characteriz-

ing the Baltic Sea region in those days. Disregard-

ing for a moment the remaining tri-junction points, it

could be stated that at that time the only remaining

boundary to be settled concerned the area south and

southeast of the islands of Bornholm between Den-

mark and Poland.

3 MARITIME DELIMITATION IN THE BALTIC

SEA SINCE 1991

A fourth, and at present last period concerns the

years following the disappearance of the former So-

viet Union from the political map of the world in

1991. Suddenly, the delimitation picture in the Bal-

tic Sea became much more complex. Three new en-

tities emerged, namely Estonia, Latvia and Lithua-

nia, while the former German Democratic Republic

disappeared. This raised two sets of new problems

in the Baltic Sea region. First, a number of new

maritime boundaries needed to be agreed upon,

where none had existed before. Starting from the

South, the maritime boundaries between Russia and

Lithuania, Lithuania and Latvia, Latvia and Estonia,

and finally Estonia and Russia needed to be agreed

upon, for these water expanses had never really re-

quired any delimitation under a unified Soviet state.

Only the first three have so far been signed by the

respective parties, namely in 1997, 1999 and 1996

respectively. All of these three agreements, except

the one between Latvia and Lithuania, have moreo-

ver entered into force by now. Second, the much

more delicate issue of state succession came to the

fore. In the case of the reunification of Germany

this did not create too much difficulty. One mari-

time boundary simply became superfluous, namely

the 1974 agreement relating to Lübeck Bay, men-

tioned above. Germany moreover recognized the

maritime delimitation treaties concluded by the for-

mer German Democratic Republic, even though the

one with Poland caused particular concern in certain

quarters because of the disputed land frontier on

which it was based. The situation with respect to

Latvia, Lithuania and Estonia was totally different

because here the question arose as to the exact legal

status of previously concluded maritime boundary

441

agreements by the former Soviet Union after their

regained independence. Examples of the latter are

the agreements concluded between Estonia and Fin-

land of 1996 and between Estonia and Sweden of

1998. In principle these agreements did not explicit-

ly rely on the agreements previously concluded by

the former Soviet Union, a non-negotiable demand

of Estonia, but the delimitation line itself did not

change, a policy strictly adhered to by the other

countries involved. Finally, during this period two

more tri-point agreements were concluded: One be-

tween Estonia, Latvia and Sweden in 1997 and one

between Estonia, Finland and Sweden in 2001.

Before concluding this last period, brief mention

can be made of the only remaining maritime bound-

ary agreement of the first category of this fourth pe-

riod awaiting conclusion, namely the one between

Estonia and Russia. A treaty was concluded on 18

May 2005, but because of an introductory declara-

tion attached to it by the Estonian parliament during

the internal ratification process, the Russian side

withdrew its signature to this document.

4 CONCLUSIONS

Like on the eve of the dissolution of the former So-

viet Union, one could argue that the situation as it

existed at that time has almost been restored at pre-

sent, despite the fundamental changes which oc-

curred in the wake of this event, namely the disap-

pearance of one coastal state, the reemergence of

three others, and the lessening of the fundamental

divide between East and West. Indeed, today all

countries surrounding the Baltic Sea are members of

the European Union, with the exception of Russia

which now only retains the control over the Kalinin-

grad region and the eastern part of the Gulf of Fin-

land. The maritime zones generated by these coast-

lines are not very enviable for the former is concave

in nature while the latter constitutes a cul de sac.

Even though a few more tri-points have been agreed

upon, the situation is still that the area south and

southeast of Bornholm remains to be divided, be it

that one has to add now that one maritime boundary

is still awaiting (a second) agreement, namely be-

tween Estonia and Russia, and another one entry into

force, namely between Latvia and Lithuania.

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