PART II. THE SIGNIFICANCE OF MARITIME BOUNDARY
1. The Estonian-Latvian Negotiations on the Maritime Boundary in
The land boundary between Estonia and Latvia was delimited under the October 19th, 1920 bilateral Convention142 and additional treaties.143 On March 20th, 1992, Estonia and Latvia agreed to re-establish the pre-June 16th, 1940 land boundary between the two States on the basis of the treaties and other legal acts concluded in the 1920s and 1930s.144
The maritime boundary in the Gulf of Riga had not been delimited between the two States.145 Hence, Article XIII of the 1992 Treaty on the re-establishment of the boundary provided that the maritime boundary between Estonia and Latvia was to be delimited under a separate agreement. The negotiations between the Estonian and Latvian delegations on the maritime boundary in the Gulf of Riga commenced in November 1994.146 Swedish experts entered the negotiations in autumn 1995 and provided good offices and chaired the meet-ings between the two negotiating States.147
In connection with the conclusion of the maritime boundary treaty, Estonia first sought Latvia’s recognition of a 12-miles-wide Estonia’s territorial sea around Ruhnu Island (hist. Runö), the coordinates of which had already been stipulated in the 1993 Estonian Maritime Boundaries Act.148 However, Latvia favoured a perpendicular line as drawn west-wards from the end-point of the
142 Convention between Estonia and Latvia Regarding the Delimitation on the Spot of the Frontier between the Two States, and also Regarding the Rights of the Citizens in the Frontier Zone and the Status of Immovable Property Intersected by the Frontier Line.
Riga 19.10.1920, e.i.f. 11.12.1920.
143 On the plethora of additional treaties, see infra section 2 of Part II.
144 Article I of the Treaty between the Estonian Republic and Latvian Republic on the Re-establishment of the State Boundary. Valga 20.03.1992, e.i.f. 19.09.1993.
145 See also the minutes of the first reading of the Maritime Boundary Treaty between Estonia and Latvia in the Estonian Parliament. The stenographic record of the VIII Riigikogu, 15.08.1996. Accessible in Estonian at: http://stenogrammid.riigikogu.ee (14.09.2016).
146 Ibid.
147 Ibid.
148 Merealapiiride seadus (Maritime Boundaries Act). Adopted 10.03.1993, e.i.f. 24.03.1993 (RT 1993, 14, 217), Annex 1. Baselines of the Territorial Sea of the Republic of Estonia.
Accessible: https://www.riigiteataja.ee/tolkelisa/5081/1201/3008/annex.pdf# (14.09.2016).
Estonian-Latvian land boundary and accompanied with a 3-miles-wide territo-rial sea around Ruhnu Island.149
At that stage, the parties did not deliberate on the delimitation of their EEZ in the Baltic Sea west of the Gulf of Riga. Yet the need for trilateral negotia-tions between Estonia, Latvia and Sweden on certain technical aspects pertain-ing to their tripoint was acknowledged durpertain-ing the negotiations.150 According to the Estonian foreign minister, the States had no problems with agreeing on the prospective tripoint since by that stage, Estonia and Latvia had already essen-tially accepted the boundary line that had been agreed upon earlier between the Soviet Union and Sweden.151
By contrast, the maritime boundary delimitation in the Gulf of Riga was complex and caused tensions between the two States. The Estonian foreign minister commented that by April 1996, Estonia and Latvia had reached “a situ-ation in which the divergence of views was obvious.”152 By that time, Latvia had adopted a fishing line in the Gulf of Riga which, due to its expansive nature, ignited tensions between Estonian and Latvian fishermen in the begin-ning of the fishing season which, as noted by the Estonian foreign minister, caused a potential for the escalation of the conflict:
“Let’s be frank, the threshold of power politics was reached. Our friends from the other coast of the Baltic Sea as well as from the rest of the world were deeply concerned. /.../ On such difficult questions, compromises are hard to reach and they do not seem very pleasant, and yet the only alternative is the continuation with the “herring war”, long-poisoned relations with the southern neighbour, diminishing trust in many capitals of the world.”153
In April 1996, the foreign ministers of Estonia and Latvia met in Vilnius to find a peaceful solution to the maritime boundary delimitation in the Gulf of Riga.
On May 3rd and 4th, 1996, the prime ministers of both countries met in Visby during the first meeting of the Baltic Sea coastal States, where the heads of gov-ernments together with the President of the European Commission and the European Council underlined the importance of stability and security in the region, including in the relations between neighbouring States.154 A week later, on May 12th, 1996, the prime ministers of Estonia and Latvia met again and reached an understanding on the maritime boundary, as well as fishing rights in
149 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.
150 Ibid.
151 Ibid.
152 Ibid.
153 Ibid.
154 Presidency Declaration. − Baltic Sea States Summit. Visby 04.05.1996, p. 1. Accessible:
http://www.cbss.org/wp-content/uploads/2012/12/1996-1st-Baltic-Sea-States-Summit-Presidency-Declaration.pdf (14.09.2016).
the Gulf of Riga.155 The Maritime Boundary Treaty was signed by the prime ministers in Tallinn a month later, on July 12th, 1996.156
The Estonian foreign minister cautioned the members of the Estonian Par-liament during the first reading of the Maritime Boundary Treaty and noted that the ratification of the treaty is “the last option before turning to the court” as the two States were willing to refer the maritime boundary delimitation to the ICJ in case the treaties would not have been ratified by the parliaments.157 The treaty caused much parliamentary debate, but was nevertheless ratified.158 It was the first maritime boundary treaty concluded between the States that had regained their independence after the dissolution of the Soviet Union.159
According to the Estonian media, approximately 800 km2 of maritime area was ceded to Latvia primarily in the eastern part of the Gulf of Riga.160 The vice-chancellor of the Estonian Ministry of Foreign Affairs noted that Estonia’s territorial sea will decrease to some extent in size and Estonia relinquished a claim for an EEZ in the Gulf of Riga.161 The question about the alleged cession of territory was also raised during the deliberations in the Estonian Parlia-ment.162
155 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.
156
Agreement between the Republic of Estonia and the Republic of Latvia on the Maritime Delimitation in the Gulf of Riga, the Strait of Irbe and the Baltic Sea. Tallinn 12.07.1996, e.i.f. 10.10.1996. Accessible: http://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/TREATIES/EST-LVA1996MD.PDF (14.09.2016).
157 Stenographic record of the first reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.
158 In the Estonian Parliament, the recorded votes were 80 in favour, none against or neutral.
See the Minutes of the second reading of the Maritime Boundary Treaty in the Estonian Parliament. The stenographic record of the VIII Riigikogu, 22.08.1996. Accessible in Estonian at: http://stenogrammid.riigikogu.ee (14.09.2016).
159 E. Franckx. Estonia-Latvia. Report No. 10-15. – Charney, Smith (eds), op. cit., p. 2995.
160 E. Alatalu. Eesti loovutas Lätile 800 ruutkilomeetrit Liivi lahest. Postimees, 14.05.1996.
161 Ibid. See also stenographic records of the First and Second Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit. Estonia did not gain acceptance from Latvia to ascribe to Ruhnu Island full weight during the maritime boundary delimitation in the Gulf of Riga. Consequently, the island lacks an EEZ in the (south-)eastern part of the Gulf of Riga where it would have overlapped with the Latvian EEZ. Furthermore, as Latvia favoured a solution whereby Ruhnu would have been given only a 3-miles-wide territorial sea, Estonia also had to make significant concessions in the drawing of other sections of the maritime boundary with Latvia in order to guarantee Latvia’s recognition of Ruhnu’s 12-miles-wide territorial sea. Notably, under maritime delimitation law, Ruhnu should have been in any case entitled to a 12-miles-wide territorial sea where it does not overlap with the territorial sea of Latvia. See e.g.
Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61, paras 74–76, 188, 218.
162 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.
In terms of law, however, the parties could not have ceded any territory as a result of the boundary negotiations since the boundary had not been agreed before. Under section 3 of the Latvian Constitution163 and section 122 of the Estonian Constitution164, the maritime boundary had yet to be delimited by an international agreement. For this reason also the 1993 Estonian Maritime Boundaries Act could not have raised any legitimate expectations for a fixed maritime boundary prior to the delimitation with Latvia.
In this regard, Latvia had also abandoned its claim pursuant to which the maritime maps from the 1920s, which depicted a boundary line in the Gulf of Riga, should be chosen as the basis for the maritime boundary delimitation.165 Estonia did not recognise this claim. The Estonian foreign minister noted that such maps depicted a discontinuous line that was roughly indicative of the divi-sion of the maritime areas in the Gulf of Riga but had no significance from the perspective of international law.166 Likewise, Alex Oude Elferink has noted that both States did not ascribe any significance to such illustrative maps in terms of law and, generally, according to the case law of the ICJ, maps may only be of assisting or confirmative value in the maritime boundary delimitation pro-cess.167
Also, there were essentially no pre-existing agreements between Estonia and Latvia on the delimitation of the maritime area of Gulf of Riga that could have provided grounds for such legitimate expectations, as subsequent analysis will show.
2. Pre-Existing Agreements Pertaining to