BETWEEN RULE OF LAW AND RULE OF FORCE
by Prof.Dr. AURELIAN TEODORESCU
The case of the Serpents’ Island provides a striking example of violation of the international law by those who have ruled over or still own illegitimately this Romanian territory. The rule of law operated as long as the island was legally placed within the frontiers of Romania as Romanian land; the rule of force applied when the island came under Turkish, Russian or Ukrainian jurisdiction.
When discussing the issue of ownership by one nation or another, one must not forget that the island shared the same fate as the mouth of the Danube and thus any analysis of the matter needs to have in view its tenuous dependence upon the status of the Danube Delta, the continental shelf of Dobrodgea, of which the island is an inseparable part.
Historically speaking, Romania achieved its unity on December 1, 1918, and after the Paris Peace Conference of 1919-1920 it regained its normal status and became not only Greater Romania but also the sole and sovereign ruler over its territory. That is why all the subsequent seizures of territory, including the Serpents’ Island, were viewed as egregious breaches of the international law and a trespassing against the natural and historic rights of the Romanian people.
After the events of 1989-1990, the situation may require some redress of the wrongs committed by the great powers in the case of Romania, which was deprived of some of its territories by force and dictate. One such case is that regarding the Serpents’ Island and it emerged as a result of Ukraine’s desire to “regulate” its claim to a belt of territorial waters of 12 nautical miles, including the continental shelf, which presents an obvious economic interest.
Hereunder follows an attempt to sketch an approach to the issue.
In ancient times the Serpents’ Island was a part of continental Dobrodgea. It is located east of the mouth of the Danube, in the Black Sea, on the same line with the town of Sulina, 44.814 km from the mainland. Geographical location: longitude 30°14’41” east and latitude 45°15’53” north. Its area is 17 hectares, with a circumference of 1,973 meters and an irregular shape. The island is 662 meters long east-to-west and 440 meters wide north-to-south. The depth of the sea near the island ranges between 4 and 25 meters.
The Serpents’ Island did not generate any economic interest in recent times, because it is a massive limestone formation, with a series of underwater rocks which makes it a useful fishing base. Its economic importance increased after substantial untapped reserves of oil and gas were found in the subsoil of the continental shelf around the island.
In time, the island acquired an increased strategic and military importance. After the USSR had occupied it in 1948, an impressive military base was established to control the maritime and air traffic and to serve as an air defense. Ukraine currently owns the whole complex and the radio detection and ranging stations located on the island carry out air and maritime surveys on an extensive area. The air control covers the whole area of the Black Sea and the Mediterranean as far as the coast of Libya. The results of this surveillance activity are concentrated in a center of operations. It is here that the data regarding the intercontinental nuclear activity on the territory of Ukraine is collected. Radio jamming stations as well as cable and audio-communications monitoring facilities are also located on the island. A military garrison deployed here has several independent sub-units for the operation of the heliport, the military port, the early-warning radar, the warehouses, the power plants, the lighthouse and to secure the defense of Ukraine’s border. A frigate, a patrol ship and one or two submarines provide the protection of the military base located on the island.
The data available so far show that Ukraine intensified its military and economic activities in the above-mentioned area.
The Serpents’ Island is mentioned under the name of Leuce (Alba, in ancient Greek) in myths and legends. According to them, the great warrior Achilles is said to have had a temple and several edifices to accommodate the priests on the island. The legends seem to carry a grain of truth as the ruins of the famous temple dedicated to Achilles were found by captain Kritziky in 1823. Square in shape, with the side of 29.87 meters, the building is great. The temple dedicated to Achilles was erected east of the sanctuary. The architecture of the construction and of the other ruins found on the island is specific to the epoch called Cyclopean, resembling the masonry found in Thessaly and Thrace: defense walls constructed without mortar, using enormous blocks of uncut stone; the white blocks of limestone impress the eye. The Achilles temple was a work of art, judging by the fragments found. It also had many chambers for the operation of the oracle, as well as for the storage of the gifts that were dedicated to the hero.
Publius Ovidius Naso, the Roman poet banished to Tomis, mentions the island in his verse and Maximus of Tyr in his Discussions says that “Achilles lives on an island right in front of the Ister, in the Pontus Euxinus. It is there that the Achilles’ temple and altars may be found.” Ptolemy, in his Guide to Geography mentions that the “islands lying near Moesia Inferior, in that part of the Pontus Euxinus that I have spoken of are Boristene (i.e., at the mouth of the Dnieper) and the island of Achilles or Leuce.”
Gheorghe I. Brătianu, in his workThe Black Sea from the Origins to the Ottoman Conquest wrote about the presence of ancient Ionian and Milesian civilizations on the littoral of the Black Sea: “One of the oldest landing sites is that on the White island, Leuke or Achilleis, a small rocky place that rises from the sea at some distance from the mouth of the Danube. This is called today the Serpents’ Island. This place of call for the Milet sailors was garnered with a sanctuary dedicated to Achilles Pentarches, protector of navigation and commerce. Their history, reconstructed by means of numerous dedicatory inscriptions found during archaeological excavations show close ties between these ports along the Black Sea coast, which retain both the main characteristics of the Greek urban civilization and traits of the autochthonous population, consisting of Getae or Scythians.”
The following idea is also suggested by legend: the ancient Greeks also called this island Makaron, that is, “belonging to the fortunate” and some linguists interpreted the word “Atlantis” as “Fortune”. This may explain their being associated with each other; besides that, the Soviet archaeologists found a series of impressive submerged ruins that were attributed to the Atlantians. One must also remember the Hamangia culture found near Cernavoda, with clay statuettes dating from 5 000-2 900 BC, which may be linked to this ancient civilization.
Legal Status – Historic Considerations
As regards ownership, the Serpents’ Island shared the same fate as the mouth of the Danube. By the end of his reign, Mircea the Old extended his rule over both banks of the Danube, to the point of entry into the Black Sea as well as the coast, the Serpents’ Island included.
Some chronicles describing the relationships between Stephen the Great and the Greek colonies on the Black Sea littoral show that this part of the sea was considered a “Moldavian lake”, and the prince also ruled over the island. On many occasions, the prince is said to have captured near the Serpents’ Island ships carrying to slavery young Genoese and riches that had been robbed from the colony of Caffa.
Not only Romanian, but also Russian and Bulgarian ballads and poems stand proof that the Romanians have always ruled over Dobrodgea and the adjacent coast of the Black Sea. At the same time, in a song of the Cossacks prince Petru Rareş is said to have connections with “his brothers on the Danube, who ruled over the flood meadows and the Sea.”
Historian Nicolae Iorga considered that King Athanaric of the Goths who had been defeated by Emperor Valens (367-389), came to the island to conclude a new treaty: “Once again the Danube was to be the frontier.” (Nicolae Iorga, History of the Romanian People, pp. 86-89).
During the 18th and 19th century, the Ottoman domination in Dobrodgea and on the Danube was affected by the war with Russia, that tried to expand its power to the Balkans and Istanbul.
The Treaty of Edirne (or Constantinople) of 1829 and the Treaty of Paris of 1856 are worth remembering with regard to the two powers that disputed other territories than their own. The Serpents’ Island is mentioned as a place to locate a lighthouse. At the same time, the Pruth marked the frontier between the two empires “from the point where the river enters the territory of Moldavia as far south as its point of convergence with the Danube.”
In the aftermath of the Crimean War, Russia lost the Danube Delta and southern Bessarabia. Under normal circumstances, these should have been restored to Romania, from whom they had been fraudulently appropriated. Under the Protocol of January 6, 1857, the Ottoman Empire took possession of the Danube Delta and the Serpents’ Island. The Paris Treaty of June 19, 1857, confirmed the seizure. The Porte assumed the obligation to maintain a lighthouse on the island.
Then, at the conclusion of the Russo-Romanian-Turkish War of 1877-1878, while ignoring the decisive support offered by Romania, Russia imposed on Turkey the Treaty of San Stefano and took the province of Tulcea, with the districts of Chilia, Sulina, Mahmudia, Isaccea, Măcin, Babadag, Hârşova, Kunstendje and Medgidia, as well as the islands in the Danube Delta and the Serpents’ Island. But Russia showed no intention of annexing these territories and wanted to exchange them for that part of Bessarabia mentioned in the Treaty of 1856.
Romania voiced its protest, stating that under the Bucharest Treaty of 1812 and the Treaty of Adrianople of 1829, Turkey had illegally given away the mouth of the Danube. The territory was restored to it under the Treaty of Paris of 1856 and then again seized under the provisions of the Protocol of January 6, 1857. The note of protest showed that instead of restoring it to Romania, Russia had taken the Danube Delta from the Ottoman Empire in order to appropriate and exchange it for Bessarabia. “One may say that it is not the defeated Turkey, but Romania that offered the Danube Delta as a war reparation to Russia.” (Correspondance diplomatique no. 614, pp. 276-284, quoted by Romulus Seişanu in “Dobrodgea, Mouth of the Danube and the Danube Delta”, p. 181-182).
One may draw a parallel between the situation of Romania at that time, when these territories were under dispute between Turkey and Russia and 1940, a black year for Romania, when Germany and Russia (the latter showing an insatiable imperialist appetite as it has always shown throughout its history) divided among themselves territories in this part of Europe.
The problem of the peace settlement with the Ottoman Empire was resumed at the Congress of Berlin in 1878. Russia and Germany pressed Romania either to refuse to retrocede the three districts in Bessarabia or to consent to this and receive instead a large compensation in territories and money. The Parliament of Romania took a firm position and decided to maintain the territorial integrity of the country by not admitting any cession against territories or money.
In Berlin, the representatives of Romania emphasized the historical rights over Bessarabia, as well as the promise made by Russia at Livadia in 1877 to respect the territorial integrity of Romania. Gorchakov, head of the tsar’s chancellery, showed cynicism and lack of diplomacy declaring that “It is true that we guaranteed the territorial integrity of your country, but it would be absurd if the same guarantee ran counter to Russian interests.”
Romania was forced to accept the decision of the Congress of Berlin by ceding to Russia three counties in southern Bessarabia and receiving Dobrodgea. Justice was made to Romania on this occasion by including the district of Mangalia and the Serpents’ Island into the territory of Dobrodgea, under articles 45-46 of the Treaty.
In conclusion, by not accepting any solution proposed by Russia and Germany, Romania made Europe acknowledge its legitimate rights to Dobrodgea, thus leaving intact to the future generations the right to Bessarabia.
Ion I.C. Brătianu wrote, “Romania did not want to receive Dobrodgea and theSerpents’ Island as compensation from Russia, but from the Congress, thus obtaining a restoration of ancient rights and a recognition of the European interest in the mouth of the Danube. With regard to Bessarabia, Romania wanted to make it known that we cede, while voicing our protest, only before the force and decision of the great powers.”
After the Union of December 1, 1918 and the Paris Peace Conference of 1919-1920, the legal status of the Serpents’ Island remained unchanged, it being a part of Greater Romania.
Current Political and Legal Aspects
The legal status of the Serpents’ Island was the same at the conclusion of World War II. No changes were operated after the Soviet ultimatum of June 28, 1940. Under the circumstances, Romania ceded Bessarabia, but the island did not become a subject of territorial dispute.
The Paris Peace Treaty of 1947 imposed by the victorious nations at the end of WWII provided that the frontiers of Romania with the USSR were the same as those drawn in 1940; therefore, the Serpents’ Island belonged to Romania.
Subsequently, on February 4, 1948, the Treaty of Friendship, Co-operation and Mutual Assistance between Romania and the USSR was concluded and the two parties agreed to establish, fix and mark the border. To this purpose, the Protocol for the drawing of the borderline between the Popular Republic of Romania and the Union of Soviet Socialist Republics was signed by Dr. Petru Groza and Veacheslav Molotov.
Within this framework, the first operation of drawing the borderline did not lead to any dispute. Later, the border had to be marked on site and proceeding along the thalweg of the Chilia channel, another secondary channel extending the borderline to the south of the Serpents’ Island was taken for the main waterway and the minute describing the course included the area into the former USSR. The same happened in the case of several small islets on the Chilia channel. Subsequent high level talks emphasized the intention of the USSR to seize the Serpents’ Island from Romania and use it for strategic and military purposes to monitor and watch the area. Since then, the Soviet cartographers included the island under the jurisdiction of the USSR, whereas the Romanian map makers avoided, by using technical means, to mention it onany public use maps. It is worth remembering that the island appeared on the maps printed at Chişinău but no mention was made regarding its ownership.
ThSerpents’ Island came under Soviet jurisdiction after the Protocol regarding the state boundary between Romania and the USSR had been signed by Petru Groza and Molotov. This established that “the Serpents’ Island, located in the Black Sea, east of the mouth of the Danube, is included in the territory of the USSR.” The island’s ownership had not been affected either by Ribbentrop-Molotov Pact, or by the Peace Treaty of 1947.
On May 23, 1948, N.P. Sutov, first secretary at the embassy of the USSR in Bucharest and Eduard Mezincescu, minister plenipotentiary, concluded and signed a technical document saying that “the Serpents’ Island was restored by Romania to the USSR and included into the territory of the latter.” This text signed exactly on the island under discussion corrected the terms “in favour of the USSR” and in this way what had never belonged to the USSR was “restored” to it.
From a legal point of view, the two bilateral agreements are and stand in complete unconstitutionality. No part from the Romanian national territory could be ceded without the approval of the Parliament, which never ratified the Protocol after it had been signed in 1948. Such international agreements did not come into force on the date of signature, but only after ratification by the parliaments of the contracting parties. This is the case of the minute signed on May 23, 1948 on the Serpents’ Island. Thus, from the point of view of the constitutional law, both documents are invalid. Given the situation (non-ratification of the protocol by Romanian and Soviet parliaments), the Serpents’ Island was never relinquished de jure. On November 25, 1949, in another minute, the boundary between Romania and the USSR was fixed along the Musura channel, west of the Chilia channel.
Following the dissolution of the former USSR, the Serpents’ Island was taken over by Ukraine, which was also a successor to all the international treaties in force at the date of the secession. Making use of the decision to extend the belt of territorial waters to 12 nautical miles (nearly 20 kilometers), Ukraine started a series of activities in the area and never bothered to consult Romania to secure its formal agreement. Having in view that the Serpents’ Island is about 50 kilometers away from the Romanian shore, i.e., between the territorial waters of Ukraine and Romania, only one narrow strip of 10 km of water remains between them, whose importance increases with the possibility of future economic exploitation.
The Serpents’ Island and Romanian-Ukrainian Relations
The ownership by Ukraine of the Serpents’ Island came to be an unexpected obstacle in the attempt to draw up the Political Treaty between Romania and Ukraine.
Formally, the negotiations between experts of the two parties for the regulation of good neighbour relations started in March 1995, with the conclusion of several political and legal documents:
- Good neighbour relations and cooperation treaty;
- Joint declaration by the Presidents of the two states;
- Document regarding the principles and guiding lines for the State Boundary Treaty, including appropriate agreements for the settlement and drawing of the maritime border.
In the opinion of the Romanian diplomacy, these bilateral documents should express in real terms the relations between Romania and Ukraine, in line with Romania’s sincere intentions to develop the cooperation with Ukraine.
Several stages may be seen prior to the actual negotiations between Romania and Ukraine.
The Declaration of the Romanian Government of November 29, 1991, reads as follows: “ The desire to develop mutually advantageous relations between Romania and Ukraine does not imply the recognition of the inclusion within the boundaries of the new independent state of northern Bucovina, Herţa and Khotin districts as well as counties in southern Bessarabia, which were annexed by force to the USSR and then included into the territory of Ukraine, based on the Ribbentrop-Molotov Pact.” The Romanian Ministry of Foreign Affairs also presented to the leadership of the USSR the considerations according to which the Serpents’ Island was part of the USSR as a result of a protocol forced on Romania.
Four issues are under dispute: northern Bucovina, southern Bessarabia, Herţa district and theSerpents’ Island. In the opinion of Romania, the former three were included into the territory of Ukraine based on the German –Soviet Nonaggression Pact (also known as the Ribbentrop-Molotov Pact) and the concrete actions to enforce it (the Secret Protocol of August 23, 1939, appended to the pact; Ultimatum note of the Soviet government to the Romanian government and the response of the latter, in June 1940) while the Serpents’ Island was annexed on pressures exerted by the USSR in the aftermath of World War II.
According to international law, the basis for the current situation of the boundary between Ukraine and Romania is the Peace Treaty of Paris, 1947, thereby the border between Romania and its neighbours was settled in broad lines. The Paris Treaty established Romania’s accountability for the aggression as well as the frontier between Romania and the USSR, actually ratifying the “rightfulness” of the annexation of Bessarabia and Bucovina. A small-scale map was annexed to the Treaty, with the boundary line drawn, but with no description of the actual demarcation.
Under these circumstances, in 1948 the necessity arose to accurately describe the boundary line. Consequently, a Protocol on the state boundary line was concluded between Romania and the USSR. This came to be integral part of the Treaties of 1949 and 1961 on the “regime of the Soviet-Romanian state boundaries.”
Formal Position of Ukraine
Ukraine stated that the Serpents’ Island is Ukrainian territory and as such no discussions on the right of this state over the island, continental shelf and a belt of 12 nautical miles of sovereign territorial waters shall be considered.
The political leadership of Ukraine thinks that the oil and gas resources of the continental shelf around the island are strategic reserves for the energetic support of the country.
From a military point of view, the Serpents’ Island is a special strategic site, as the military complex located here provides the air defense for the southern border of Ukraine.
Formal Position of Romania
With regard to the Serpents’ Island, the official position of Romanian diplomacy is unequivocal.
In keeping with the Geneva Conference on the High Seas of 1958, any country may assert jurisdiction over waters and shelf as much as 12 nautical miles beyond its coast and to a depth of maximum 200 meters. Based on this, Romania initiated negotiations as early as 1967 with the USSR.
During the talks with the USSR, Romania had the benefit of the conclusions of the Third UN Conference on the Law of the Sea (1976). The efforts of the Romanian representatives participating in the conference expressed the formal position of Romania and aimed to elaborate international rules meant to simplify the division of the continental shelf of the Black Sea between Romania and the USSR.
Another attempt to codify the law of the sea was the treaty signed by 117 countries in Montego Bay, Jamaica, on December 10, 1982, which took effect in 1994, having been ratified by 60 states. According to this treaty, every coastal nation can claim exclusive economic rights in waters extending 200 nautical miles, irrespective of depth.
Reverting to the issue under discussion, the negotiations between Romania and the USSR started in 1967, but the talks conducted during 10 meetings referred to the continental shelf and the exclusive economic rights. The proposals made by the Soviet counterpart (in three versions: 2,000 square km; 6,000 square km and, finally, 4,000 square km) were rejected by Romania. The negotiations were unsuccessful and were broken off in 1987.
Negotiations between Romania and Ukraine
In 1995, Romania renewed its efforts to resume the negotiations for the conclusion and signing of the three above-mentioned political and legal documents with Ukraine, which is succeeding the former USSR.
Besides the Basic Political Treaty, signing a Joint Declaration would have been preparatory for the controversial issues related to the borders and Molotov-Ribbentrop Pact to be touched upon, as the Joint Declaration does not need to be ratified by the parliaments of the two countries. Romania asked that the text of the Political Treaty should include provisions condemning the effects of the Molotov-Ribbentrop Pact, but this initiative was interpreted by the Ukrainian counterpart as an expression of Romania’s territorial claims.
The third document represents a compromise, because the Ukrainian authorities insist to sign a Treaty on Boundaries, concurrently with the Basic Political Treaty, and Romania is interested in maintaining the borderline along the main navigable waterway of the Chilia Channel as far as its point of entry into the sea. At the same time, Romania proposed that the demarcation of the continental shelf should be made according to the shoreline of the two states, thus ignoring the existence of the Serpents’ Island.
After five rounds of talks on the text of the Basic Political Treaty, the expert teams were in agreement concerning most of the provisions, except the text of the preamble, which makes a reference to the borderline and the Molotov-Ribbentrop Pact.
The Romanian delegation proposed that the document should provide, among other things, that the borderline along the Chilia Channel will follow strictly the middle of the navigable waterway as far as the point of entry into the sea. At the same time, the delegation put forth the idea to ask the International Court of Justice to analyze the validity of the Protocol concluded and signed by Petru Groza and Molotov, having in view that the said document was never ratified by the Parliament of Romania and it implied a modification of the frontiers of Romania, contrary to those established under the Peace Treaty of 1947, a document which was signed by other states as well.
During the consultations at the level of Foreign Affairs state secretaries, held in July and December 1995, the possibility to find a compromise formula, both for the text of the preamble and for the article regarding the frontiers, was generally outlined.
Possible Ways of Settling the Dispute
The Final Accords of the Helsinki Conference on Security and Cooperation in Europe (August 1, 1975) recognize the inviolability of post-World War II frontiers, which can not be modified by the use of force. The documents provide nevertheless that the frontiers of the signatory nations may be modified, in keeping with international law, by peaceful means after negotiations between the parties concerned. That is the case of the Serpents’ Island. In settling this problem, before considering the political and legal aspects, one must also invoke the historical truth, if only for the demarcation of the continental shelf.
Short Range Outlook
For such a problem, there is a possibility for the states to take the case before the Hague International Court of Justice, which is one of the principal judicial organs of the United Nations. Settlement of the issue under dispute by this international body is perfectly honourable and many states rely on the impartiality of international law to solve their problems.
As long as no international court of justice has pronounced the Protocol of May 23, 1948 invalid, the status quo shall be maintained and Ukraine remains in possession of the Serpents’ Island.
The parties need to agree on enforcing the law, on applying the principles of good neighbourhood and to abstain from using force. Romania and Ukraine need to resume the negotiations that have never meant to create a “violation of the territorial integrity” (as the Ukrainian authorities have said at one point in time).
The question is to find an equitable solution in dividing the marine area between the Serpents’ Island and the mouth of the Danube, as the dispute represents a common heritage from the former USSR.
Having in view the sincere desire of Romania and Ukraine to co-operate in the Black Sea and at the mouth of the Danube, the question may be settled peacefully and amiably, with no unwelcome results of any nature, liable to affect adversely the international status of any of the parties.
Long Range Outlook
Romania needs to be more insistent in presenting Ukraine the problem, which is of mutual interest, thus contributing to good neighbour relations and promoting the development of normal bilateral collaboration in the area.
The position of Romania, both with relation to Ukraine and internationally, must be firm, is the sense that Ukraine has no reason to assume more rights than the former USSR. At the same time, the succession needs to be regulated with a view to the future, by recognizing that the documents concluded in 1948 cannot remain in force indefinitely.
Romania also needs to demonstrate that the settlement of the issue under the terms advanced by Romanian representatives during the previous rounds of talks will gain Ukraine international prestige and will secure the stability and general understanding in the area.
The current borderline is and must be considered a fact that lacks a sound and indisputable legal basis and following the disappearance of the predecessor state, the issue of the borderline remains unresolved and needs to be settled. By concluding a treaty which would state in a legal form what was imposed by force and had no legal basis might appear as an act ratifying the fact; this would strengthen the legal foundation that Ukraine needs in order to maintain possession of this territory.
Ukraine can not possess something that the former USSR never owned legally. Ukraine can not consolidate and legitimate what was “taken over” from the former USSR. The conclusion of a border treaty between Romania and Ukraine under such conditions would trigger an unwelcome impact on the public, both at home and internationally, causing an adverse effect on Ukraine. At the same time, the indefinite delay in concluding an equitable agreement might emphasize the revisionist perception usually associated with the USSR and the successor states.
Wednesday, October 06, 1999