Delimitation in the Eastern Part of the Gulf of Riga

The maritime boundary delimitation between Estonia and Latvia has been referred to in the legal literature as one of the examples in State practice that concerns historical considerations.²⁷² Namely, as discussed earlier,²⁷³ a small section of the territorial sea in the Ikla-Ainaži section had been delimited by Estonia and Latvia already in 1923. However, reference to this partial delimita-tion does not amount to the use of historic title in the 1996 maritime boundary delimitation.²⁷⁴ It simply means that Estonia and Latvia had to delimit the remaining part of the territorial sea beyond that partial boundary.

According to the LOSC Annex VII Tribunal, the concept of historic title over sea refers to an area of sea claimed exceptionally as internal waters (or, possibly, as territorial sea) on the basis of historical circumstances.²⁷⁵ The LOSC Annex VII Tribunal has noted that historic title should be distin-guished from historic rights:

269 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.

270 See map 5 in Annex 1.

271 See generally United Nations. Handbook on the Delimitation of Maritime Boundaries.

New York 2000, p. 59.

272 Franckx 2002, op. cit., pp. 2997–2998, 3007.

273 See supra section 2 of Part II.

274 For claims of sovereignty over particular islands in the South China Sea on the basis of historic title: see South China Sea Arbitration, op. cit., para 272. See also Van Dyke 2009, op. cit., pp. 63–65.

275 South China Sea Arbitration, op. cit., paras 221, 226. See also Fisheries Case 1951, op.

cit., p. 130.

“The term ʻhistoric rights’ is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of inter-national law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty. ʻHistoric title’, in contrast, is used specifically to refer to historical sovereignty to land or maritime areas.”²⁷⁶

The Tribunal has also clarified that the formation of the historic title requires the continuous exercise of this exceptional claim and acquiescence on the part of other affected States.²⁷⁷ These conditions are not met with regard to the mari-time delimitation in the eastern Gulf of Riga.

Pursuant to Article I of the 1992 Treaty on the Re-Establishment of the Boundary between Estonia and Latvia, the treaties and other legal acts con-cluded between the two States in the 1920s and 1930s served as the basis for their post-1991 boundary. Although the maritime boundary between Estonia and Latvia was not the object of the 1992 treaty, it nevertheless had great sig-nificance for the delimitation of the maritime boundary in the Gulf of Riga, which is exemplified by the reference to the 1992 Treaty on the Re-Establish-ment of the Boundary in the 1996 Maritime Boundary Treaty.²⁷⁸

In particular, pursuant to Article 1(a) of the Protocol appended to the 1923 Supplementary Convention on the Estonian-Latvian Frontier Question, the maritime boundary between the two States was drawn from the end point of the land boundary to north-east for over 3 miles and ran essentially in parallel with the 660-metre-long Ainaži port’s northern jetty, the construction of which was finished in 1928.²⁷⁹ Then the boundary line, as agreed under the 1996 Maritime Boundary Treaty, turns south-west and runs in that direction for approximately 0.5 miles.²⁸⁰ The end-point of this section of the maritime boundary (turning point number 3) was referred to by the Estonian and Latvian delegations in the negotiations as “the historical border point at sea”.²⁸¹ In order to also guarantee entrance to the Ainaži port for modern ships with a deeper draught, the length of the historical Estonian-Latvian partial pre-1940 maritime boundary was now extended 0.5 miles on the basis of the principles stipulated in Article 1(a) of the Protocol appended to the 1923 Supplementary Convention, so as to reach a total of 4 miles.²⁸² Thus, this 4-miles-long section of the Estonian-Latvian maritime boundary (from the end point of the land boundary up to turning point number 3) was delimited on the basis of a previous partial territorial sea boundary (in light of the Protocol appended to the 1923 Supplementary Convention).

276 South China Sea Arbitration, op. cit., para 225.

277 Ibid, para 265.

278 Franckx 2002, op. cit., p. 2998.

279 See in more detail supra section 2 of Part II.

280 See map 5 in Annex 1.

281 See Franckx 2002, op. cit., p. 2998.

282 Ibid, p. 3004.

However, the remaining section of the eastern part of the Gulf of Riga up to the territorial sea of Ruhnu Island was not delimited on the basis of the previous partial territorial sea boundary. These waters had been high seas prior to 1940 and had not been subject to any specific agreement by the States. In this part of the maritime area, the parallel line method was used for delimiting the boundary.

5.3.2. The Application of the Parallel Line Method

After the 4-miles-long historical boundary, the section of the boundary line between its turning points no. 3 and 4 runs as a straight line in the east-west direction and is mostly based on the parallel line method. The use of the parallel line method enabled to allocate a large maritime area between Ruhnu Island and the eastern mainland coast to Latvia. If the States had applied the equdistance method instead, this maritime area would have consequently fallen to the Esto-nian side of the boundary, as the Latvian coast is relatively distant in compari-son with the Estonian islands Ruhnu and Kihnu, as well as the straight baseline which connects them and nearly crosses the terminus of the parallel line.²⁸³

Upon Latvia’s proposal Estonia and Latvia took the “historical border point at sea” (turning point no 3 as the starting point for drawing an approximately 20-miles-long straight line to the west in parallel with the nearby 58^th parallel north.²⁸⁴ The application of the parallel line method was possible since the east-ern coast of the Gulf of Riga, which runs almost directly from north to south, is smooth and adjacent.

Notably, the application of the parallel line method is in State practice gen-erally common for delimiting more distant maritime areas, e.g. in oceans.²⁸⁵ This relates to the fact that due to its simplicity, the parallel line may not be sufficiently accurate and nuanced for reaching an equitable solution.²⁸⁶ Hence, the application of the parallel line method by Estonia and Latvia may be

283 By contrast, Erik Franckx has found that the Estonian-Latvian maritime boundary up to its turning point number 4, which is located approximately 24 miles west of the end point of the land boundary, is based on the historical boundary which was agreed in Article 1(a) of the Protocol to the 1923 Supplementary Convention. See Franckx 2002, op. cit., pp. 2998, 3008.

284 Stenographic record of the Second Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.

285 E.g. Agreement between Portugal and Spain on the Delimitation of the Territorial Sea and Contiguous Zone. Lissabon 12.02.1976, not yet ratified. Treaty on the Delimitation of Marine and Submarine Areas and Related Matters between the Republic of Panama and the Republic of Colombia. Cartagena 20.11.1976, e.i.f. 30.11.1977. Exchange of Notes between the United Republic of Tanzania and Kenya concerning the Delimitation of the Territorial Waters Boundary between the two States. Dodoma/Nairobi 17.12.1975, e.i.f. 09.07.1976.

286 See United Nations Handbook on the Delimitation of Maritime Boundaries, op. cit., p. 57.

ered as a rare example of its use for the delimitation of a relatively narrow mar-itime area.

The parallel line ends by reaching the boundary’s turning point number 4 which demarcates the outer limit of the 12-miles-wide territorial sea of Ruhnu Island. Also, at this point, the maritime boundary almost overlaps with the Estonian straight baseline as drawn between the islands of Ruhnu and Kihnu.

During the reading of the 1996 Maritime Boundary Treaty, members of the Estonian Parliament proposed to modify the parallel line so as to exclude the acute-angled triangle which results from the crossing of the parallel line with the territorial sea of Ruhnu Island.²⁸⁷ Navigation as a special circumstance in terms of Article 15 of the LOSC would have provided sufficient legal grounds for such modification of the boundary line. However, it is likely that the appli-cation of the parallel line east of Ruhnu Island was part of a package deal by which Latvia also recognised the 12-miles-wide territorial sea of Ruhnu Island.

This would explain why it was not adjusted to navigational needs.

The Estonian foreign minister was questioned by the members of the Parlia-ment during the first reading of the 1996 Maritime Boundary Treaty about the potential for a compromise with Latvia for excluding the possibility of Estonian ships sailing the Ruhnu-Pärnu waterway in this acute angle to accidentally enter the Latvian territorial sea.²⁸⁸ The foreign minister admitted in his later reply during the second reading in the Parliament that “it is uncommon in State prac-tice that an acute triangle is agreed upon in the maritime boundary” as he also noted that the proposal made by the Estonian delegation in the course of the negotiations to discuss this question further was rejected by Latvia, since it con-sidered this “neither necessary nor reasonable”.²⁸⁹ At the same time, the Latvian Government confirmed that it recognises the right of innocent passage of Esto-nian ships in this maritime area in accordance with the LOSC.²⁹⁰

The application of the parallel line method to the maritime boundary delim-itation in the eastern part of the Gulf of Riga may also be explained by the unanticipated fact that in terms of Article 3 of the LOSC, this approximately 20-miles-wide maritime area (between turning points no. 3 and 4) of the eastern part of the Gulf of Riga does not include the territorial sea of Estonia nor Lat-via. Instead, it was an area in which both Estonia and Latvia could potentially have established their EEZ. Yet since Ruhnu Island was attributed only partial effect and thus its potential EEZ was omitted, this part of the maritime area fell completely under the Latvian EEZ.

287 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.

288 Ibid.

289 Stenographic record of the Second Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.

290 Ibid.