Caspian Report - Issue: 08 - Fall 2014

RADU DUDAU
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(where Russia holds veto powers),
as well as Russia’s predilection for
political approaches wrapped in legal
lingo at the expense of the spirit
of law, lead us to believe that this
Treaty will not be used in a potential
Romanian-Russian dispute.
Moscow could also claim that it is
not bound by the 2009 ICJ decision
with regard to the delimitation between
Romania and Ukraine of the
continental shelf and of the EEZ in
the Black Sea. Indeed, the International
Court’s decisions are binding
only on those parties who submit
the dispute in question. Debates
can be extremely complex in this respect,
since international law does
not benefit from a clear codification.
The settlement to be reached and
accepted by Romania and Ukraine
following ICJ’s decision should be
acknowledged as part of customary
international rules and thus part of
international law. In other words,
the Court’s decision should be considered
a source of international law.
The problem is that such matters are
still subject to doctrinal debate.
As already mentioned above, the Vienna
Convention of 1978 on State
Succession to Treaties provides that
a succession of states will not affect
treaties that delimit the border regime,
nor those relating to the use of
certain territories (Articles 11 and
12 of the Convention).
In compliance with the Convention,
“treaty” means “an international
agreement concluded between
states in written form and governed
by international law, whether embodied
in a single instrument or in
two or more related instruments,
and whatever its particular designation.”
Generally, an ICJ decision
cannot be included in the above
definition of a “treaty.” However, in
this particular case of the ICJ decision
in the Ukraine vs. Romania
case, the ruling resulted from and
was rendered by virtue of the bilateral
agreements concluded between
the two countries – in particular, in
compliance with the basic bilateral
treaty.
From that perspective, the ICJ decision,
accepted by the parties, can
be considered as one of “several
interrelated instruments” to form a
treaty for the purposes of the Vienna
Convention of 1978 and the 1969
Vienna Convention on the Law of
Treaties. According to such interpretation,
Russia and Romania should
be bound to comply with the territorial
borders in the Black Sea agreed
between Ukraine and Romania, by
virtue of jus cogens and in compliance
with Articles 31, 34 and, respectively,
Articles 11 and 12 of the
1978 Vienna Convention (Romania
and Russia are not parties to it). This
type of delimitation is regulated by
the “treaties that lay down the regime
of borders or those that relate
to the use of certain territories.”
However, we reiterate that neither
Russia nor Romania is a signatory
to either of the above Vienna Conventions,
making the definitions
provided by such treaties regarding
the Court decision on the borders
between Romania and Ukraine irrelevant,
unless the two treaties, respectively,
the Court decision, can be
considered as part of international
customary law. Indeed, experts
agree that the Convention on the
Law of Treaties reflects international
customary law.
If, however, the claim is that the interpretation
of the ICJ decision may
not be considered as part of the
set of Ukrainian-Romanian treaties
concerning the border regime (and
neither as customary international
law), Russia might consider a re-examination
of the ICJ decision (since
decisions cannot be appealed) under
the provisions of Article 61 of
the ICJ By-laws. Even though the