"A much better line than we thought we might get"

Professor James Crawford has been awarded a Romanian national order as “Knight” last year for helping Romania to win the trial addressing the Black Sea maritime border with Ukraine in Hague. Originally from Australia, he teaches International Law at Cambridge University and he’s a member of the English and Australian Bars. Professor Crawford recently had the time to tell us about the trial and about the role he played.

R: You contributed to Romania’s verdict in Hague. What was your role in the trial?

James Crawford: I was one of the five external lawyers working for Romania. The other three included one from Paris, one from Oxford and French and English juniors. It seems like a large number but obviously it was a very sensitive case and an important case for Romania. I worked on the case since 1999. So it’s been quite a long period as well. I’m a professor of International Law at Cambridge and also a member of the English and Australian Bars. I advise governments on a range of issues, including law of sea issues in regards delimitation and fisheries. The Government asked me if I could help them. It is a specialised professional relationship in that you are working directly with the people in Government, not through the intermediation of solicitors.

The Government decided at an early stage that it would run the case itself with the assistance of counsel and they appointed a fairly small in-house team – about six people – and they maintained the consistency of that team throughout the 10 years that it took, from the time in 1999 when the Government came to the conclusion that the negotiations had no prospect of success, till’ 2009 when we got the decision of the Court. This was important because the in-house people, the agent, the co-agent and the other younger lawyers knew what they were doing throughout and developed a familiarity with the issues which helped enormously.

„To put it crudely, the court traded the Serpent’s island for Sulina dyke”

R: Which were, in your opinion, the key moments of the trial?

J. Crawford: The actual court cases are nothing like the trials you see on television. You can occasionally see things on television from international trials, but it all looks like it’s happening very slowly and most of the key developments occur behind the scenes, in particular in the deliberations of the court, which of course are secret.

The key issues in the case were, simplifying matters greatly, the following. The first aspect is that in the Black Sea Ukraine has much longer coastline than Romania does, because of the Crimean peninsula in particular. And the Ukrainian coastlines are deeply indented, which greatly increases the length of the coastline. Now, one criterion taken into account in maritime delimitation is coastal length, because every seacoast is entitled in principle to maritime zones – territorial sea and economic zone. So the theory has gone that if you have more coast, you get more zones. And that had the potential consequence of squeezing Romania entirely out, especially in the Northern part of the Romanian coast. So there was the important question of which coastal length would be taken into account.

The second problem coming up to the trial, which is a problem we always knew about, was Serpants Island, a very small island which used to belong to Romania. It was removed from Romanian control in a process which doesn’t bear much examination after the Paris Peace Treaty. It wasn’t removed from Romanian control by the Paris Peace Treaty, but by a bi-lateral agreement with the Soviet Union in 1948.

The problem when you have a coastline and an island off-shore fairly close to the coastline, in this case 23 miles away, if you give the island the same effect as the coast, it pushes the boundary off where it would otherwise be. It acts like a blocker. In the Ukrainian case, it was the combination of their coastline and the existence of this tiny island off-shore which threatened to push the whole of the Romanian maritime boundary well to the south.

So the crucial things that we had to do was to show first of all that some of the Ukrainian coast was irrelevant to our purposes, which we did to a certain extent. And secondly, to show that you had to draw the line, taking no account of the Serpents Island, which we did in the end completely successfully. What the court did was to draw a mainland coast equidistance line, which goes around Serpent’s Island on a 12-mile arc. That had already been agreed way back in 1949. And then the Court went on to discount the Sulina dyke, which is Romanian feature, which sticks out into the sea and had the effect of pushing the line in the other direction. To put it crudely, the Court traded Serpent’s Island for Sulina dyke.

That led to a line somewhat more to the south than the strict equidistance line would have been if you could have drawn that from the end of Sulina dyke. But not very far. It meant that essentially, Romania has the entire economic zone of its coasts in a forward projection up to the medium line with the Crimea. That is, in fact, a much better line than we thought we might get. And it reflected that 80% of the overlapping claims. If you take the two claims of the parties and take the zones that overlapped, Romania won 80% of that area. In maritime trials, that is a good win.

„The Court was unanimous and this is unusual in maritime limitations”

R: Why did you think that Romania would get less?

J. Crawford: Well, I was worried about coastal length. A particular worry was the south-facing coast of Ukraine. You could treat that western part of that part of the Black Sea and Ukraine did treat the Western part of the Black Sea as the sort of Ukrainian lake, because of its control of Crimea. And I was worried that the projection from the North, which coasts project 200 miles of economic zone, would have the effect of pushing us to the South.

And it was also the concern that the Court might say that the Serpent’s Island should be given some effect. Serpent’s Island is small, but it is there. When islands are given effect in maritime delimitation it is not uncommon to give them half-effect, which means that you draw a line giving then full effect and a line giving them zero effect and then split the difference. And I thought there was a risk that the court might say that taking into the account the coastal length, it was equitable to give Serpent’s Island half-effect. In fact, they gave it zero effect, but recovered some of the consequences of that for Ukraine by discounting Sulina dyke, which I think was fair.

What has to be emphasised is that the Court was unanimous and this is unusual in maritime delimitation. So we managed to get a judgment which satisfied the entire Court and nonetheless won the case. Quite often there is the fear that the Court would be unanimous, but at your expense. In other case, it would give you less than you’re entitled to in order to produce a substantial majority. But in President Higgins’ last case this did not happen.

„Ukraine was obviously interested in integration with Europe”

R: Why do you think that Ukraine went along with the verdict? They tried to compromise with Romania for so many years and it didn’t work out. Why now?

J. Crawford: The case was referred to the court with the agreement of Ukraine. And we’ve had 23 rounds of negotiations, which achieved nothing. Ukraine was obviously interested in integration with Europe, so it couldn’t be seen to simply rejecting the judgment of the court. The normal pattern is that if parties agree to go to the Court, they accept the result. And it’s easier for Ukraine to accept the result coming from an outside party than to make a compromise itself. From a political point of view, you can always blame the outside party. The area that I understand to be particularly prospective is the area East of Serpents Island where Ukraine got some, we got some. So they still got prospective areas in the Black Sea. We will see what happens.

R: Both Romania and Ukraine started to give away territories in the Black Sea to foreign companies before the verdict was ruled out. Can this be done legally?

J. Crawford: Well, obviously a company which accepts the concession from a Government in respect of a disputed area of a continental shelf or economic zone takes the risk that the government doesn’t own that, doesn’t have the right to give it away. Now that we have a line in the sea, that the Court has told us exactly where the boundary is, it will be for governments to modify those concessions, so that each of the companies stay on the right side of the line. I don’t know to which extent these concessions are continuing. Some of them are rather old, some of them are more recent. But that will have a corresponding effect for the companies.

R: How did you work with the Romanian team? Did you have to work long hours?

J. Crawford: I tend to go to bed early and get up early. One of my colleagues in the team goes to bed late and wakes up late. So between us, we were working 24 hours. One of us was always working. He does the night shift and I do the early morning shift. So he gives me his takes at the end of the day and I make comments on them while he’s asleep. It’s very efficient.

It’s very hard work. The Romanian team, including the cartographic expert, worked very hard and very well. It showed the wisdom of keeping the team together during the years of getting ready for the court case.

We also had to present the Romanian position as to the history of the dispute. It went back to this very controversial transaction of 1948, although that’s strictly irrelevant because Romania accepted Ukraine’s sovereignty over the Serpents Island in 1997 in a bi-lateral agreement. So it wasn’t anymore relevant strictly speaking. Nonetheless, the government’s position was that the court had to be told how this issue arose. And there were a series of agreements between the Soviet Union and Romania after 1948. It started with 1949, which drew a line around Serpents Island – a 12-mile line. And one of our arguments was that the line was an all-purpose maritime boundary; the Court didn’t accept that, but it produced a result which was nearly the same as if it had been, so I didn’t mind losing that argument.

The court said the 1949 Agreement wasn’t clear enough. It was expressed only as a territorial sea boundary not as an exclusive economic zone boundary. And the exclusive economic zone boundary developed later. It wasn’t really an existence in 1949, so the parties couldn’t have agreed in 1949 what the boundary would be. I think that’s correct.