Non-Corrigé
Uncorrected
CR 2008/19
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Wednesday 3 September 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Maritime Delimitation in the Black Sea
(Romania v. Ukraine)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le mercredi 3 septembre 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à la Délimitation maritime en mer Noire
(Roumanie c. Ukraine)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Shi
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Cot
Oxman
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-Kh.vce-prh,ident
RanMjv.
Shi
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skoteiskov,
CotMM.
jOges an, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Romania is represented by:
Mr. Bogdan Aurescu, Director General, Ministry of Foreign Affairs of Romania, Professor
Lecturer, Faculty of Law, University of Buchar est, President of the Romanian Branch of the
International Law Association, member of th e Permanent Court of Arbitration, substitute
member of the Venice Commission,
as Agent, Counsel and Advocate;
Mr. Cosmin Dinescu, Director General for Legal Affairs, Ministry of Foreign Affairs of Romania,
as Co-Agent, Counsel and Advocate;
H.E Mr. Călin Fabian, Ambassador of Romania to the Kingdom of the Netherlands,
As Co-Agent;
Mr. James Crawford, S.C., F.B.A., Whewell Prof essor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers,
Mr. Vaughan Lowe, Q.C., Chichele Professor of Inte rnational Law, University of Oxford, member
of the English Bar, associate member of the Institut de droit international,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
a s Senior Counsel and Advocates;
Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
as Counsel and Advocate;
Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,
as Counsel;
Mr. Gicu Boroşi, Director General, National Agency for Mineral Resources,
Mr. Mihai German, Deputy Director General, Nati onal Agency for Mineral Resources, member of
the United Nations Commission on the Limits of the Continental Shelf,
Mr. Eugen Laurian, Counter-Admiral (retired),
Mr. Octavian Buzatu, Lieutenant Commander (retired),
Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,
as Technical and Cartographic Experts;
Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania, - 5 -
Le Gouvernement de la Roumanie est représenté par :
M. Bogdan Aurescu, directeur général au ministère roumain des affaires étrangères, chargé de
cours à la faculté de droit de l’Université de Bucarest, président de la section roumaine de
l’Association de droit international, membre de la Cour permanente d’arbitrage, membre
suppléant de la Commission de Venise,
comme agent, conseil et avocat ;
M.CosminDinescu, directeur général des affair es juridiques du ministère roumain des affaires
étrangères,
comme coagent, conseil et avocat ;
S. Exc. M. Călin Fabian, ambassadeur de Roumanie auprès du Royaume des Pays-Bas,
comme coagent ;
M. James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat, Matrix
Chambers,
M. Vaughan Lowe, Q.C., professeur de droit internati onal à l’Université d’Oxford, titulaire de la
chaire Chichele, membre du barreau d’Anglet erre, membre associé de l’Institut de droit
international,
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
comme conseils principaux et avocats ;
M. Daniel Müller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
comme conseil et avocat ;
M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,
comme conseil ;
M. Gicu Boroşi, directeur général de l’agence nationale des ressources minières,
M. Mihai German, directeur général adjoint de l’agence nationale des ressources minières, membre
de la Commission des limites du plateau continental de l’ONU,
M. Eugen Laurian, contre-amiral (en retraite),
M. Octavian Buzatu, capitaine de corvette (en retraite),
M. Ovidiu Neghiu, capitaine, ministère roumain de la défense,
comme experts techniques et cartographes ;
M. Liviu Dumitru, chef de l’unité frontières et délimitation maritime du ministère roumain des
affaires étrangères, - 6 -
Ms Irina Ni ţă, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the
Netherlands,
Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Olivia Horvath, Desk Officer, Public Diplom acy Department, Ministry of Foreign Affairs of
Romania,
as Advisers.
The Government of Ukraine is represented by:
H.E. Mr. Volodymyr A. Vassylenko, Adviser to th e Minister for Foreign Affairs of Ukraine,
Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law,
National University of Kyiv Mohyla Academy,
as Agent;
H.E. Mr. Oleksandr M. Kupchyshyn, Deputy Foreign Minister of Ukraine,
Mr. Volodymyr G. Krokhmal, Director of the Lega l and Treaty Department of the Ministry of
Foreign Affairs of Ukraine,
as Co-Agents;
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the New York Bar,
Eversheds LLP, Paris,
Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of ParisI
(Panthéon-Sorbonne),
Sir Michael Wood, K.C.M.G., Member of the English Bar, Member of the International Law
Commission,
Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris , Member of the Rome Bar,
Eversheds LLP, Paris,
as Counsel and Advocates;
H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine,
Ms Cheryl Dunn, Member of the State Bar of California, Eversheds LLP, Paris,
Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,
Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty
Department of the Ministry of Foreign Affairs of Ukraine, - 7 -
Mme Irina Niţă, deuxième secrétaire, conseiller juridique à l’ambassade de Roumanie au Royaume
des Pays-Bas,
Mme Catrinel Brumar, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Mirela Pascaru, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Ioana Preda, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Olivia Horvath, responsable du départem ent des relations diplomatiques du ministère
roumain des affaires étrangères,
commceonseillers.
Le Gouvernement de l’Ukraine est représenté par :
S. Exc. M. Volodymyr A. Vassylenko, conseiller du ministre des affaires étrangères de l’Ukraine,
ambassadeur extraordinaire et plénipotentiaire d’Ukraine, professeur de droit international à
l’Académie Mohyla (Université nationale de Kiev),
comme agent ;
S. Exc. M. Oleksandr M. Kupchyshyn, vice-ministre des affaires étrangères de l’Ukraine,
M. Volodymyr G. Krokhmal, directeur du départem ent des affaires juridiques et des traités du
ministère des affaires étrangères de l’Ukraine,
comme coagents ;
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,
M. Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
(Panthéon-Sorbonne),
sir Michael Wood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,
Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Eversheds LLP, Paris,
comme conseils et avocats ;
S. Exc. M. Vasyl G. Korzachenko, ambassadeur extraordinaire et plénipotentiaire d’Ukraine,
Mme Cheryl Dunn, membre du barreau de Californie, cabinet Eversheds LLP, Paris,
M. Nick Minogue, Solicitor à la Cour suprême d’Angleterre et du pays de Galles,
M. Oleksii V. Ivaschenko, directeur par intérim de la division du droit international, département
des affaires juridiques et des traités du ministère des affaires étrangères de l’Ukraine, - 8 -
Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic,
Ms Mariana O. Betsa, Second Secretary of th e Embassy of Ukraine in the Kingdom of the
Netherlands,
as Legal Advisers;
Mr. Robin Cleverly, M.A., D. Phil, C. Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of
Ukraine,
as Technical Advisers. - 9 -
M. Maxime O. Kononenko, premier secrétaire à l’ambassade d’Ukraine en France,
Mme Mariana O. Betsa, deuxième secrétaire à l’ambassade d’Ukraine au Royaume des Pays-Bas,
comme conseillers juridiques ;
M. Robin Cleverly, M.A., D. Phil., C. Geol., F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Borys D. Tregubov, général de division, assistant du chef du service de protection des frontières
d’Etat de l’Ukraine,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. The sitting is open and we meet for the continuation of
the first round presentation of Romania and we are to hear Professor Crawford.
Mr. CRAWFORD:
IV. THE R ELEVANT C OASTS AND THE RELEVANT A REA
(CONTINUED )
1. Madam President, Members of the Court, yesterday I analysed the approach you have
taken to relevant coasts in previous cases. In this second part of my first presentation I move to the
present controversy.
The relevant coasts and area for the present dispute
[Slide 10: the claim lines of the Parties and the mainland coast equidistance/median line]
2. You can now see illustrated on the screen the respective claim lines of the Parties, as well
as the mainland coasts equidistance line; this is tab IV -11 in your folders. The first point to stress
is that some relevant coasts here are adjacent to each other and some are opposite. The land
boundary of the Parties terminates at the Danube delta. That being so, the respective east-facing
coasts of the Parties on the delta are obviously relevant: they look directly on to the area to be
delimited, they produce overlapping entitlements in that area, and they provide base points for a
mainland coast provisional equidistance line.
3. The provisional equidistance/median linereflects the distinction between opposite and
adjacent coasts. I have already mentioned poin t T. To the west of point T the provisional
equidistance line is determined by points on the ad jacent coasts of the Parties on the delta; after
point T is reached, the provisional median line is determined by points on the opposite coasts of the
Parties.
4. When it comes to opposite coasts, the Crimean coastline of Ukraine south of Cape
Tarkhankut is obviously relevant ⎯ it too faces on to the delimitation area, produces an entitlement
overlapping with that produced by the opposite Romanian coast ––
The PRESIDENT: Professor Crawford, I am sorry to interrupt you so early but I am already
hearing from the interpreters that they would appreciate your going more slowly. - 11 -
Mr. CRAWFORD: I am sorry. I will. –– and provides the base points on the Ukrainian side
for construction of the median line. When one is running the marathon it is wise to start slowly!
The PRESIDENT: And continue slowly!
Mr. CRAWFORD: On the Romanian side, the relevant coast is the entire Romanian coast
from the border with Ukraine in the north, down to th e land border with Bulgaria in the south, near
Vama Veche, all of which projects into the relevant area of opposite coasts.
[End slide 10]
5. In its Rejoinder, Ukraine objects that this distinction is artificial, that it ignores Serpents’
1
Island, and that it double counts the Romanian coast . Let me deal with these objections.
6. First, as to artificiality. If it is an artifiial distinction then it is one that Ukraine has
expressly accepted. I recall the 1997 Additional Agreement, paragraph4( b) of which mandated
the Parties to apply:
“the principle of the equidistance line in areas submitted to delimitation where the
coasts are adjacent and the principle of the median line in areas where the coasts are
opposite”
[“le principe de la ligne d’équidistance da ns les zones à délimiter lorsque les côtes
sont adjacentes et le principe de la ligne médiane lorsque les côtes se font face”].
Clearly the Parties envisaged that they would first have to distinguish these “areas submitted to
delimitation” in the case “where the coasts are adjacent” (“les zones à délimiter lorsque les côtes
sont adjacentes”) and the case where they “are opp osite” (“lorsque les côtes se font face”) and
secondly that they would apply the corresponding principles of “the equidistance line” (“la ligne
d’équidistance”) or “the median line” (“la ligne médiane”). The distinction is clear.
7. Moreover the distinction between the tw o has always been recognized in maritime
delimitation, and indeed, it is recognized in Ukraine’s domestic legislation 2. Each of the relevant
articles of the 1982 Convention concerning delimita tion expressly mentions “States with opposite
or adjacent coasts” (“Etats dont les côtes sont adj acentes ou se font face”): Article15 (territorial
sea), Article74 (exclusive economic zone), Article83 (continental shelf). The same was true of
1
See RU, paras. 4.57-4.64.
2CMU, Ann. 47. - 12 -
3
the 1958 Conventions . As the Court of Arbitration held in the Anglo-French case, there is no third
4
category , no geographical situation where the delimitation is to be effected between coasts that are
neither adjacent nor opposite 5. Thus in that case the Tribunal considered that the coasts of the two
parties in the Channel (la Manche) were opposite, notwithstanding the presence of the Channel
Islands, while their coasts as the delimitation moved out into the Atlantic Ocean were to be
regarded as standing more in a relation of adjacency 6.
8. Ukraine’s second objection is that Serpents ’ Island is ignored in determining relevant
7
coasts . There are a number of mutually reinforcing answers to this, which we will give you over
the next few days. But my concern just now is w ith relevant coasts and relevant areas, and it is
common to determine these without regard to small offshore features, as you did with respect to
Filfla in the Libya/Malta case, for example (Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985 , p.50, para.68). I would simply point out that it is not in dispute
that Serpents’ Island is located in the relevant area for the delimitation. If it were not, we would
have no problem. In fact if we were to add to the total coastal length asserted by Ukraine, which is
1058km, the south-facing “coasts” of Serpents’ Isla nd, that would add 450m to the total, that is
0.0004 per cent of the total length, measured to f our decimal places. It gives some idea how small
a feature it is ⎯ but it adds nothing to the relevant coasts equation. Nor, of course, was Serpents’
Island included as a base point in Ukraine’s list of territorial sea co-ordinates submitted under
8
Article 16 of the 1982 Convention .
9. Ukraine’s third objection is that Ro mania double counts its coastline, once for the
purposes of determining adjacent coasts and once fo r the purpose of determining opposite coasts.
But of course the same coast will often count tw ice in this way. Ro mania’s coastal frontage
generates a lateral maritime boundary vis-à-vis its adjacent Danube coast, and an opposite maritime
3
Convention on the Continental Shelf, Geneva, 29April 1958, 499 UNTS 312, Art.6; Convention on the
Territorial Sea and the Contiguous Zone, Geneva, 29 April958, 516 UNTS 205, Art. 12.
4
Delimitation of the Continental Shelf (United Kingdom of Great Britain and Northern Ireland and the French
Republic), Decision of 30 June 1977, 54 ILR 6, pp. 118-119, para. 237.
5
Ibid., pp. 63-65, paras. 89-94, p. 105, para. 206.
6Ibid., p. 125, para. 253; cf. p. 120, para. 242.
7RU, paras. 75-79.
8
Cf. RR, paras. 8.11-8.16. - 13 -
boundary vis-à-vis its Crimean coast. To read Ukra ine’s pleadings was to gain an impression of a
Romanian coastline exhausted by the stress of a single delimitation, unable to withstand the
onslaught of further coastlines. But coastlines do not get used up in this way. If ⎯ and I say this
entirely hypothetically ⎯ the Crimean peninsula was still part of the Russian Federation,
Romania’s coastline would have effect as an oppos ite coastline vis-à-vis Russia and an adjacent
coastline vis-à-vis Ukraine. The position is no different where the coasts are under a single
sovereign.
[Slide 11: comparative illustration of the relevant/irrelevant coasts in the Tunisia/Libya case and
the Libya/Malta case]
10. Let us take another hypothetical. Let us assume that Malta and Tunisia formed a single
State; the slide on the screen is tab IV-12 in your folders. On that hypothesis, could it seriously be
disputed that the relevant Libyan coast west of Ras Tajoura was relevant both for the delimitation
of the boundary based on the adjacent coast of the Tunisian mainland, as you found in
Libya/Tunisia, while all of the coast from Ras Ajdir as far as at least Ras Zarruq, including the
same sector up to Ras Tajoura, was relevant in determining the boundary based on the opposite
coast of Malta, as you found in Libya/Malta? Such an approach does not involve any “double
counting” of the portion of coast which is common to the two delimitations.
[End slide 11]
11. In short ⎯ and it seems obvious ⎯ in this case there are relevant adjacent and opposite
coasts.
12. I turn to the identification of these coasts, and lets start with the Romanian coastline,
which is much simpler than that of Ukraine.
[Slide 12: the Romanian coast]
13. In terms of the sector of the equidist ance line based on adjacent coasts, the Romanian
coast consists of two distinct segments. As you can see on the screen, and at tabIV-13, starting
from the border with Ukraine, the coast of Romania stretches in a southerly direction for a distance
of about 70km to the Sacalin peninsula. The onl y major features in this stretch of coast are the
Sulina dyke and the mouth of the St. George arm of the Danube, located slightly to the north of the
Sacalin peninsula. The Sacalin peninsula forms the southern limit of this section: it is a narrow - 14 -
promontory, as you saw yesterday. Then from that peninsula, the coast proceeds in a westerly
direction until it reaches the Razim Lake, a brackis h Romanian lake separated from the sea by a
narrow strip of land. The coast then gradually curves to the south, an d proceeds in a broadly
southerly direction until it reach es the land border with Bulgaria, south of Vama Veche. This
portion of the Romanian coast forms another single segment.
14. There is no reason to take account of the Romanian coast behind and to the west of the
Sacalin peninsula in relation to the sector governed by the adjacent coasts. Whereas the 70km
stretch of Romanian coast on the delta looks almo st due east, the coastline further south trends
south-west, just as the Crimean coastline lying o pposite trends south-east. You will recall that the
Court disregarded the Tunisian coastline north of Ras Kaboudia in the Tunisia/Libya case ⎯ Ras
Kaboudia marking a shift in the orientation of the coastline so that it looked more away than
towards the delimitation area. So here. Tunisia/Libya was likewise a case of adjacent coasts.
[End slide 12]
[Slide 13: the opposite coasts of the Parties]
15. By contrast, as you can see on the screen, and at tabIV-14 , the entire coastline of
Romania stands in opposition to the southwest-facing coast of the Crimean peninsula south of Cape
Tarkhankut, generating a zone of overlapping potential EEZ entitlements between those opposite
coasts. The distance between Vama Veche and Cape Sarych is 226miles. The whole of
Romania’s coastal frontage is relevant vis-à-vis the opposite coast of
the Crimean peninsula.
16. Turning to the Ukrainian coast itself, here the cartographic imagination of our colleagues
opposite has run wild. But it has to be said that they had some material to work with. Ukraine’s
coast is deeply indented all around with major gulfs and firths. There is no particular problem with
the Kalamits’ka Gulf but others, especially the Karkinitsk’a Gulf, raise significant issues.
[End slide 13]
[Slide 14: the segments of the Ukrainian coast]
17. On the screen now is the coast of Ukraine adjacent to that of Romania ⎯ this is at
tab IV-15 in your folders. Let me start with the stretch of adjacent coastline along the Danube delta
itself that appertains to Ukraine. This is what we have referred to as segment 1. That it is relevant
cannot be doubted. - 15 -
18. Immediately to the north there is a complex series of coastal lakes cut off from the sea by
narrow strips of land ⎯ a common phenomenon around the Black Sea. The coastline here faces to
the south-east and generates areas of overlapping maritime entitlement. There is no doubt that
segment2, extending up to point S, the entrance to the Dniester Firth, is equally relevant to the
delimitation.
19. Ukraine’s criticism of so-called suppressi on of Ukrainian coastline relates rather to
Romania’s treatment of segment3, which you can see on the screen now ⎯ the stretch of coast
from the Dniester Firth ⎯ extending north-east to Odessa where the coast turns further to the east.
20. Of course, we are concerned for the moment only with delimitation between adjacent
coasts. To appreciate this more clearly, we now see the coastal frontages, as it were, looking
directly out to sea and without any opposite coastli nes. Frankly, I fail to see the relevance as
adjacent coastline either of the Romanian coastline to the west and south-west of the Sacalin
peninsula, or of the Ukrainian coastline to the nor th of the Dniester Firth. These coastlines look
away from the area of the Danube delta, which is the area where the delim itation has to occur.
Assume again, for the sake of argument, that th e Crimean peninsula still belonged to the Russian
Federation and that the land boundary between Ukra ine and Russia lay just to the north of Odessa,
so that all the Court had to do as between Romania and Ukraine was to delimit the boundary
between their adjacent coasts. Could it really be said that the existence of the Ukrainian coastline
around Odessa bore any relevance to the issue, a ny more than the Romanian coastline around
Constanţa, approximately the same distance away from the terminus of the land boundary? On
what possible ground could it be argued that the much more remote segment 3 makes the slightest
difference to the delimitation between adjacent coasts ? It is inclined further to the north, faces
away from the delimitation area, and does not project in such a way as to overlap with any
entitlement generated by the Romanian coast. It is also comparatively far more remote from the
delimitation area when compared to ot her segments of Ukraine’s coast which are relevant ⎯ the
principle of comparative proximity.
21. Let me put the same point another way. Segment3 looks straight across the extreme
north-western part of the Black Sea at the Crimean gulfs. There are simply no overlapping - 16 -
potential entitlements generated by Ukraine’s seg ment3 and the 70km sector of the Romanian
coast south of the border, considered as potentially adjacent coasts.
22. The position is similar to that dealt with by the Court in the Tunisia-Libya case, and to
use your words in that case
“there comes a point on the coast of each of the two Parties beyond which the coast in
question no longer has a relationship with th e coast of the other Party relevant for
submarine delimitation. The sea-bed areas off the coast beyond that point cannot
therefore constitute an area of overlap of the extensions of the territories of the two
Parties, and are therefore not relevant to the delimitation.” ( Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982 , pp.61-62,
para. 75.)
[“sur la côte de chacune des deux Parties, l’existence d’un point au-delà duquel ladite
côte ne peut plus avoir de lien avec les côtes de l’autre Partie aux fins de la
délimitation des fonds marins. Au-delà de ce point, les fonds marins au large de la
côte ne peuvent donc pas constituer une z one de chevauchement des extensions du
territoire des deux Parties et, de ce fait, n’ont aucun rôle à jouer dans la délimitation.”]
Now, in assessing whether this is so ⎯ which is an exercise of judgment, not mathematics ⎯ you
have to take into account the configuration and orientation of the coasts and their distance away
from the scene of the action.
23. For these reasons, what we have called segme nt 3 of the Ukrainian coast is not relevant
to the delimitation of adjacent coasts. I will return to it in the context of opposite coasts shortly.
24. Now, in keeping with the maxim that we work from the secure to the less secure, I want
to take the opposite Crimean coast of Ukraine, south of Cape Tarkhankut. That this stands opposed
to the opposite Romanian coast ⎯ and further north, the opposite Ukrainian coast ⎯ cannot be
doubted. We have called it segment 8.
25. But it seems obvious that the next segment, which we have numbered segment7, is
irrelevant. It is the northern coastline of the Cr imean peninsula. It faces north-west. Its opposite
coast is the other side of the Karkinitsk’a gulf. It faces on to the deep recesses of the Gulf and not
at all onto the area of the delimitation. Yet Ukrain e persists in including it in the relevant coastal
length. No doubt we will hear from counsel for Ukraine how this essentially north-facing
coastline, far away from the scene of the delimita tion and entirely tangential to it, could be
relevant. - 17 -
26. The position is quite different from that in the Gulf of Maine case on which Ukraine
relies. If the Ukraine/Romania land boundary ⎯ to continue my series of politico-geographical
hypotheticals ⎯ had been somewhere around the Ukrainian city of Skadovsk, which you can now
see on the screen, no doubt the opposite coast to th e north-east of Cape Tarkhankut located some
45 miles away, would have been relevant. But that is not what the boundary is.
27. What goes for segment7 must apply also to the large part of segment6, which lies
opposite segment7 in the Karkinitsk’a Gulf. It does not look on to the far-distant area of the
provisional equidistance line and it is, I would say, evidently irrelevant for present purposes.
28. As to segment 3 itself, which we now revi sit, it is obviously not an opposite coast to any
Romanian coastline. Rather, in part, it is opposite to segment 5, in part to segment 7, the southern
shore of the Karkinitsk’a Gulf. Segment 4, the short segment north-east of Odessa, is again neither
opposite nor adjacent to any part of the Romanian coast. Moreover, it is extremely remote from the
delimitation area, when compared to other sections of the Ukrainian coast that are undoubtedly
relevant. If the coast south of Odessa is irrele vant to the delimitation in both of its aspects ⎯ as it
surely is ⎯ so, too, is the coastline to the north-east of Odessa.
29. That leaves us with the western part of segment 6, which at least looks on to the open sea
and not some other Ukrainian coast. As such, it may be of present interest. But four points need to
be made about this segment. First, it is remote from the relevant area ⎯ nearly 120nm away.
Secondly, other portions of the coast, in particul ar, those south of point S and Cape Tarkhankut,
project on to the area to be delimited and are much closer to it. Thirdly, this short coastline is
eclipsed by segments 1, 2 and 8. Fourthly, this segment lies in no specific relationship with the
Romanian coast; it is neither an opposite nor an adjacent coast.
[End slide 14]
30. Before reaching any conclusions on these points, I should say something about the
Ukrainian approach to its own coastline.
[Slide 15: The projection of the Ukrainian coast, as presented by Ukraine in its Counter-Memorial
(CMU, figure 3-4)]
31. In its Counter-Memorial, Ukraine produced figure 3.4, which boiled down its coastline to
three sectors, the baselines of those sectors beari ng no close relationship to its actual coastline ⎯ - 18 -
this is tab IV-16 in your folders. In our Reply, we criticized this graphic in a number of respects ⎯
inconsistency, arbitrariness, and so on. We poi nted out, among other things, that the arrow drawn
from Ukraine’s south-facing coast extended as far as 223 nm in length 9.
[End slide 15]
[Slide 16: The projection of the Ukrainian co ast, as presented by Ukraine in its Rejoinder
(RU, figure 4-4)]
32. Now, this tab IV-17 in your folders is Ukra ine’s second attempt. It corrects some of the
errors of the first ⎯ the claim is now limited to 200-mile arcs, for example. But it also
demonstrates the futility of this sort of graphical work in the relatively confined areas of the Black
Sea. The following points may be noted:
1. The angles subtended from the baselines vary quite widely ⎯ from 65° of arc to about 160°.
2. The bases from which two of the arcs are drawn (in the central and eastern sector) are unrelated
to any actual coasts.
3. The base of the central arc, on the crucial western side, is drawn many miles in front of the
coast and in a way which completely fails to reflect the coastal morphology.
4. Almost the entire coastline of the Karkinits’ka Gulf, as well as the seg ment of coast between
Odessa and the Yahorlytska Gulf are omitted. Nonetheless Ukraine counts the length of these
segments of coast as relevant for the purposes of its proportionality test: it seems to want to
simplify its coast while having it, in all its complexity, too!
5. And finally, implicit in the graphic is that it does not matter how coasts are analysed or what
their special relationships are; computer-generated 200-mile arcs are all we need.
[End slide 16]
[Slide 17: map of the western basin of the Black Sea showing 200nautical miles projections,
drawn in a manner similar to Ukraine’s approach to the projection of its coast]
33. But of course two can play such games. Not the least of the problems with Ukraine’s
projection method is that it does not go far enough. I have already remarked on every aspect of the
Black Sea as a semi-enclosed sea in which virtua lly every maritime space is within 200miles of
two, three or even four coastal States. The graphic on the screen now shows this; it is tab IV-18 of
9
RR, paras. 3.41-3.46, and see figure RR4. - 19 -
your folders. We have projected coastal fronts for 200miles à la Ukraine all the way round,
though we have been, I think, more faithful to the coastal geography than Ukraine managed to be in
the region between Odessa and Cape Sarych. You can see the resulting mess. At most, it portrays
the problem of delimitation in relatively confined seas. It does nothing whatever to solve them.
[End slide 17]
[Slide 18: map of the western basin of the Black Sea showing 200 nautical miles projections drawn
from Romania’s coast]
34. The same point can be made bilaterally, between only Romania and Ukraine. A
200-mile projection of Romanian coastal fronts drawn à la Ukraine ⎯ which you can now see on
your screen, and at tab IV-19 ⎯ covers vast swathes including all the waters in the northern part of
the western basin which Romania does not claim. If this is a way of identifying relevant coasts and
relevant areas, then the concept has lost its utility.
[End slide 18]
35. I turn to the relevant area, which ⎯ based on an analysis of your jurisprudence ⎯ I have
defined as the areas in which the projections of the relevant coasts of the Parties create overlapping
entitlements, in the region where the delimitation is to be effected, and taking into account the
maritime spaces within which the delimitation must occur.
[Slide 19: the differences between the positions of the Parties regarding the relevant area for the
delimitation (based on figure RR 11)]
10
36. As analysed in the pleadings , there are three points of disagreement as to the relevant
area: first, the limit with Bulgaria; second, the eastern limit; and third, the northern limit. You
can see these depicted on the screen now; this is tab IV-20 in your folder ⎯ and figure 4-11 in the
Rejoinder 11.
37. The smallest and least significant of these disagreements relates to the area south of the
Bulgaria-Romania provisional equidistance line. Ukraine persists in counting this area in the
12
delimitation . For our part we have explained our reasons for excluding it. But the point to be
made is this: a State which continues to insist on such a small difference in relevant areas is using
10
Most recently RU, paras. 4.70-4.83.
11
Ibid., opposite p. 84.
12Ibid., paras. 4.81-4.83. - 20 -
relevant areas for impermissible purposes ⎯ it is seeking to divide the relevant areas by reference
to an arithmetical formula, otherwise it wouldn’t matter. Since that is an impermissible procedure,
we leave this point for the Court to decide.
38. The second difference between the two appr oaches to the relevant area relates to the
south-eastern part. To justify excluding this tria ngular area, Ukraine explains that it has “nothing
to do” with Romania, concerning a maritime area lying between Ukraine and either Turkey or
13
Bulgaria . The line it purports to draw to exclude this area has no legal significance; it is simply
the line joining Cape Sarych with the tripoint between Romania, Ukraine and Turkey 14. Further,
the maritime areas within this triangle represent overlapping potential entitlements of both
Romania and Ukraine (and Turkey and, in part, of Bulgaria) 15; it is one of these four-State
situations. Subject to a minor qualification it forms part of the relevant area in the present case.
39. The qualification concerns a small triangle in the south-east, which is beyond 200 miles
from the Romanian coast. You can see it on the screen. It is not part of the relevant area.
40. I turn to the third and the most important disagreement, which relates to the area north of
the line between point S and Cape Tarkhankut. As I have explained, the coasts looking on to this
area are all Ukrainian, and there are none of them re levant to this delimitation. If the criterion for
an irrelevant area is that it has “nothing to do” with the other State ⎯ which is Ukraine’s criterion
for excluding the south-eastern triangle ⎯ then the northerly area should certainly be excluded, as
well, it has “nothing to do” with Romania.
[End slide 19]
Conclusion
[Slide 20: The relevant coasts and the relevant area]
41. Madam President, Members of the Court, to summarize, this is a two-sector delimitation.
As shown on the screen, and at tab IV-21, in the sec tor of adjacent coasts, the relevant coasts are,
on the Romanian side, the coastline from the intern ational land boundary to th e Sacalin peninsula.
On the Ukrainian side it is the stretch of coast from the land boundary up to point S on the Dniester
13
See CMU, para. 3.71.
14
RR, para. 3.82.
15Ibid., para. 3.83. - 21 -
Firth. In the sector of opposite coasts, the relevant coasts are, on the Romanian side, its entire
coastline, on the Ukrainian side, the south-west-facing coastal frontage from Cape Sarych to Cape
Tarkhankut. The relevant area is the area projecting in front of the relevant coasts, as far as the
maritime entitlement of the two parties extends. It is as simple as that.
[End slide 20]
V. THE A GREED D ELIMITATION AROUND SERPENTS ’ SLAND
Introduction
1. Madam President, Members of the Court, I tu rn now to address, this is a change of theme
and it was originally planned to be a change of day but it has not worked out that way. I turn now
to address the initial portion of the maritime boundary between the maritime zones of the Parties,
starting from the intersection of the outer pointstheir territorial seas, as agreed in 2003; that
point has been referred to by Romania as point F.
2. I will show that the first portion of the boundary was delimited by agreement in 1949 as a
12-mile arc drawn around Serpents’ Island. In itspleadings, Ukraine accepts the benefits of that
agreement. It accepts that it has a 12-mile arc around Serpents’ Island when, but for the agreement,
it would have been entitled to less. Even in1949 the distance between Serpents’ Island and the
Romanian coast was less than 24 miles. But Uk raine does not accept the other side of the coin ⎯
that the boundary delimited the maritime domain of the island as between the two States for all
purposes ⎯ and this despite the fact that such a delimitation was clearly shown on authoritative
maps of the time.
[Slide 1: the agreed boundary around Serp ents’ Island; extract from the publication Lighthouses of
Ukraine]
3. As the Court will be aware, a number of agreements were entered into between Romania
and the Soviet Union in relation to the bounda ry. The most important is the 1949 general
procès-verbal of 27September 1949, which embodies the work of the Joint Soviet-Romanian
Commission for Delimitation of the State Border. The boundary fixed by that agreement was
confirmed in all the later agreem ents, which I can therefore discuss more briefly. Taken together,
these agreements show unequivocally three things: - 22 -
First, there was an agreement in treaty form . Second, it was an agreement effecting an
all-purpose delimitation, not just a unilateral de limitation determining settling the Soviet
entitlement to a 12-mile territorial sea but leaving it open for the Soviet Union to claim further
areas to the south. Third, it was an agreement delimiting the boundary around Serpents’ Island: it
was not limited to an initial short sector in the west leaving everything else at large.
4. Those are the three points: you can see them all illustrated on the screen and in tab — we
are now up to V-1 — in your folders. This is a map published by the State Hydrographic Service
16
of Ukraine in their beautiful illustrated book, Lighthouses of Ukraine , published in 2007 . We
have given the Court a copy of it and we recomme nd it as bedtime reading! It shows a boundary
round the island. It separates Romanian from Ukrain ian waters. It does not stop short; it goes all
the way round: this is what a State agency of Ukraine published in 2007.
[End slide 1]
5. Before I set out to discuss the 1949Agreem ent, and Ukraine’s disagreements about it, I
should record two points on which there is no dispute. First, whatever agreement was reached in
1949 is still in force. Secondly, that Agreemen t is binding on Ukrain e as the successor to the
Soviet Union in respect of the island. Ukrain e expressly recognizes the binding character of these
17
earlier agreements in the 1997 Additional Agreement . It did so by reference to the 1961 Border
Régime Treaty, which itself expressly affirmed the applicability of the 1949procès-verbal and
18
subsequent agreements . It did so again in 2003, since the 2003Border Régime Treaty delimits
the land and territorial sea boundary by reference to the 1961 Treaty 19.
6. This presentation is in two parts. First, I will take you through the agreements and the
maps in chronological order; I am afraid it is the only way to do it. Secondly, I will respond to the
various points made by Ukraine in seeking to avoid the significance of the agreements and maps.
16
Ministry of Transport and Communications of Uk raine, State Hydrographic Service of Ukraine, Lighthouses of
Ukraine (Reference Photoinformation Edition, Logos Publishers, Kyiv, 2007: ISBN 966-581-842-2), p. 50.
17
MR, Ann. 2.
18Ibid., Ann. 18.
19Ibid., Ann. 3. - 23 -
A. The 1949 Agreement and its endorsement in subsequent practice
1. The 1949 general procès-verbal
7. Madam President, Members of the Court, the 1949 general procès-verbal on the border
between the Soviet Union and Romania wa s signed at Bucharest on 27September 1949 20. It
covers the entire boundary between the two States, fr om the tripoint with Hungary in the west all
the way to the maritime border in the Black Sea. It is absolutely meticulous.
8. The relevant part of the 1949 general procès- verbal in relation to the maritime portion of
the boundary is at tabV-2 in your folders. Starting from border sign 1437, which is the last
boundary marker on the land, it sets out the boundary in the Black Sea between the areas which the
Parties agreed would appertain to each of them. The course of the boundary on the sea can be
followed in two maps — with which, I am afraid, a good deal of your time over the next two weeks
will be occupied. Map 133, tab V-3, and 134, tab V-4, in your folders. Now as you know, there is
a dispute between the Parties as to how far the boundary shown on map 134 proceeds. But let us
read the procès-verbal while looking at these two maps, starting with map 133. The procès-verbal
is perhaps not a model of concision, but it is a mode l of precision: the Parties went to great care to
set out what they were doing and we say the result is clear.
[Slide 2: map 133 annexed to the 1949 general procès-verbal]
9. The procès-verbal reads as follows:
“From the border sign No. 1437 the boundary goes through the middle of the
Musuna (Musura) channel in a south-south-east direction, until the mouth of the
Musuna (Musura) channel on the alignmen t no. 1 leaving Limba Island on the USSR
side, and the island No. 3 on the PRR [that is, the Romanian] side going to border sign
no. 1438 (buoy).
The border sign no. 1438 is fixed (anchored) in water in the point of the change
of the direction of the boundary line in the Black Sea.”
[«A partir de la borne frontière nº 1437, la frontière traverse le milieu du chenal
de Musuna (Musura) dans une direction sud-sud-est jusqu’à l’embouchure de ce
chenal en suivant l’alignement nº 1, l’île de Limba revenant à l’URSS et l’île nº 3 à la
RPR» c’est a dire, à la Roumanie «jusqu’à la borne frontière nº 1438 (bouée).
La borne frontière nº 1438 est fixée (anc rée) dans l’eau au point d’inflexion de
la ligne frontière dans la mer Noire.»]
So we get to 1438.
20
MR,, Ann. 13. - 24 -
[End slide 2]
[Slide 3: map 134 attached to the 1949 general procès-verbal]
10. Having set out the co-ordinates of bor der sign No.1438, the procès-verbal then
proceeds — and at this point we have to shift to map 134, tab V-4:
“From the border sign no. 1438 (buoy) the State boundary passes in the Black
Sea in a straight line, on the azimuth of 102°30'0" to the border sign no.1439
(beacon).
The border sign No. 1439 (beacon), is fixed in water, in the point where the
State boundary line going through the Black Sea changes its direction, at the
intersection of the straight line going from the border sign no. 1438 (buoy) on the
azimuth of 102°30'0", with the outer margin of the Soviet marine boundary zone of
12 miles, surrounding Serpents’ Island.”
[«A partir de la borne frontière nº 1438 (bouée), la frontière d’Etat traverse la
mer Noire en suivant une ligne droite de 102° 30 ′ 0 ″, d’azimut jusqu’à la borne
frontière nº 1439 (balise).
La borne frontière nº 1439 (balise) est fixée dans l’eau au point d’inflexion de la
ligne frontière d’Etat dans la mer Noire, à savoir à l’intersection de la ligne droite qui
suit l’azimut 102° 30 ′ 0″, à partir de la borne frontière nº 1438 (bouée) avec la limite
extérieure d21la zone frontière maritime soviétique de 12 milles qui entoure l’île des
Serpents.»]
The intersection of the azimuth with the outer margin of the Soviet marine boundary zone of
12miles surrounding Serpents’ Island . Having set out the co-ordinates of border sign No.1439,
the procès-verbal continues:
“The State boundary line, from the border sign No. 1439 (beacon), goes on the
exterior margin of the marine boundary zone, of 12 miles , leaving Serpents’ Island on
the side of the USSR.”
[«La ligne frontière d’Etat, à partir de la borne frontière nº 1439 (balise), suit la
limite extérieure de la zone frontière ma ritime de 12 milles, attribuant l’île des
22
Serpents à l’URSS.»]
11. Now a number of points can be made in relation to the procès-verbal:
First, the language is clear. The “S tate boundary line” (“ligne frontière d’Etat”) ⎯ the line
dividing areas appertaining to Romania from those appertaining to the Soviet Union ⎯ runs from
border sign 1438 to border sign 1439. The “State boundary line” (“ligne frontière d’Etat”) does not
terminate at border sign No. 1439; it is expressly stipulated to follow ⎯ to “go on” (“suit”) ⎯ “the
21
Romania’s translation.
2Ibid. - 25 -
exterior margin of the marine boundary zone, of 12miles” (“la limite ex térieure de la zone
frontière maritime de 12 milles”).
Second point, the “State boundary line” (“ligne frontière d’Etat”) is undifferentiated along its
entire length, including the portion beyond border sign 1439.
Third, the “marine boundary zone, of 12miles” (“zone frontière maritime de 12 milles”),
along the exterior margin of which the State boundary line runs, is the same as the 12-mile zone
referred to earlier as “surrounding” or “around” (“qui entoure”) Serpents’ Island.
12. In other words, the Parties agreed that the boundary would go on “the exterior margin of
the marine boundary zone” (“la limite extérieure de la zone frontière maritime”). That zone is the
12-mile “marine boundary zone” (“zone frontière maritime”) earlier referred to in the procès-verbal
as “surrounding” (“qui entoure”) — Ukraine’s translation has “around” — Serpents’ Island 23. The
effect of these words is undeniable. The agr eed boundary follows the “exterior margin of the
marine boundary zone” (“la limite extérieure de la zone frontière maritime”). The marine
boundary zone itself surrounds or goes round Se rpents’ Island, and the boundary likewise
“surrounds” or goes “round” Serpents’ Island along its exterior margin with it. You cannot have a
zone without a boundary. It follows the 12-mile arc, forming the outer limit of that 12-mile
“marine boundary zone” (“zone frontière maritime”) shown on every map.
13. Ukraine argues that the use of the word “surrounding” or “around” (“qui entoure”) in the
procès-verbal does not actually define the course of the boundary, but only the point at which
point1439 is located; it argues that the relevant paragraph of the general procès-verbal describes
24
the arc, and not the boundary .
14. It is true that the word “surrounding” or “around” (“qui entoure”) is used in the
paragraph describing border sign1439 in order to define the point of intersection between the
azimuth running from border sign1438 and the 12- mile arc. But one cannot interpret the
subsequent paragraphs, describing the continuatio n of the boundary after border sign1439, in
isolation. The 12-mile “marine boundary zone” (“zone frontière maritime”) is the same in both
cases; in both cases it must be understood to be a marine boundary zone going “around” or
23
CMU, para. 5.43.
2RU, para. 3.24. - 26 -
“surrounding” (“qui entoure”) Serpents’ Island. To use the word “surrounding” or “around” (“qui
entoure”) merely to describe the arc, as Uk raine proposes, would have been completely
superfluous.
[End slide 3]
2. The individual procès-verbaux
15. The individual procès-verbaux of descripti on in relation to border signs1438 and 1439
25
are in similar terms and confirm this interpretation . The individual procès-verbal of description
of border sign 1438 26 (at tab V-5 of your folders) provides that
“from the Border Sign 1438 (buoy), the State boundary in the Black Sea passes in a
straight line, on the azimuth of 102 °30'0'', till it reaches the exterior limit of the
Soviet marine boundary zone, of 12 miles, surrounding Serpents’ Island, to the Border
Sign No. 1439 (beacon)”.
[“à partir de la borne frontière nº 1438 (bou ée), la frontière d’Etat dans la mer Noire
poursuit une ligne droite de 102° 30 ′ 0″ d’azimut, jusqu’à ce qu’elle atteigne la limite
extérieure de la zone frontière maritime soviétique de 12 milles qui entoure l’île des
Serpents, la borne frontière nº 1439 (balise)” .] 27
16. The individual procès-verbal of description of border sign1439 28 (tabV-6 of your
folders) likewise provides clearly that after border sign 1439 the State border continues around the
12-mile arc surrounding Serpents’ Island. It stipulates:
“the boundary line, from the Border Sign No. 1438 (buoy) passes in the Black Sea in a
straight line, on the azimuth of 102°30'0'' till it reaches the exterior limit of the Soviet
marine boundary zone of 12miles surrounding Serpents’ Island, to the Border
Sign 1439 (beacon) and from the Border Sign No. 1439 (beacon), the boundary passes
on the exterior margin of the Soviet marine boundary zone of 12miles, leaving
Serpents’ Island on the USSR side.”
[“la ligne frontière, à partir de la borne frontière nº 1438 (bouée) traverse la mer Noire
suivant une ligne droite de 102° 30 ′ 0″ d’azimut jusqu’à ce qu’elle atteigne la limite
extérieure de la zone frontière maritime soviétique de 12 milles qui entoure l’île des
Serpents, à la borne frontière nº 1439 (balise), et de la borne frontière nº 1439 (balise),
la ligne frontière longe la limite extérieure de la zon29frontière maritime soviétique de
12 milles, attribuant l’île des Serpents à l’URSS” .]
25MR, paras 4.7, 4.8.
26
Ibid., Ann. 14.
27
Romania’s translation.
28MR, Ann. 15.
29Romania’s translation. - 27 -
17. Once again, the individual procès-verb al, like the general procès-verbal, expressly
provides that the boundary continues after border si gn 1439, and follows the “exterior margin” (“la
limite extérieure”) of the 12-mile “Soviet marine boundary zone” (“zone frontière maritime
soviétique”) surrounding Serpents’ Island.
[Slide 4: sketch included in the 1949 individual procès-verbal of border sign 1439]
18. Now, here was a sketch forming part of the individual procès-verbal for border
sign 1439. As you can see from the slide, and as appears in the individual procès-verbal itself, this
sketch was located within the body of the text of the procès-verbal, was not an addendum or an
annex, it is an integral part of the text. The boundary is depicted in the same way, using dots and
dashes, along its entire length. It is depicted as continuing around a portion of the 12-mile arc
around Serpents’ Island, and the depiction conti nues until it reaches the end of the sketch, the
border of the sketch to the east, it does not stop s hort. Abbreviations are used to the north and
south of the boundary, indicating the appurtenance of the waters on either side, for the Soviet
Union to the north, for Romania to the south ⎯ you can see those on the screen as well.
19. Ukraine criticizes Romania’s reference to the sketch-maps on the basis that they do not
30
“establish” a maritime boundary . It argues that the sketch-maps are “substantially inaccurate”,
and “must yield to the final comprehensive boun dary line as definitively shown on the maps ⎯
including the geographically reliable map134 ⎯ which define the boundary as agreed in the
31
general 1949 procès-verbal” . There are at least three responses to this argument:
1. first, the sketch-maps form an integral part of the individual procès- verbaux and have to be
given a corresponding weight. Moreover the sketches confirm the meaning of the text of the
procès-verbaux, namely that the State boundary line extends beyond border sign 1439 along the
12-mile arc around Serpents’ Island, and that it h as the same character along its entire length.
The value of the sketch-maps is independent of whether they are to scale or are geographically
accurate;
30
RU, para. 3.47.
3Ibid. - 28 -
2. second, Ukraine’s suggestion that map134 “def initively” shows the “final comprehensive
32
boundary line” is simply untrue. Its sole stated purpose is to depict the boundary between
border signs 1438 and 1439. Ukraine’s suggestion that map 134 “defines” the boundary is also
untrue: map 134 has no special status in defining the boundary other than in the sector between
the two points to which it relates. It is certainly not stipulated as depicting the boundary
definitively beyond border sign 1439, and it does not describe any terminal point along that
boundary;
3. third, even if there were any inconsistency between the sketches within the individual
procès-verbaux and map134, which there is not, there could be no question of the sketches,
which form an integral part of the individua l procès-verbaux of description, “yielding” to
map 134. What map 134 and the sketches taken toge ther show is an interstate boundary going
around this 12-mile arc and not stopping at any defined or stipulated point. But even if ⎯
which is not the case ⎯ even if map134 was to be regarded as showing a definite stopping
point, it would, in light of the purpose for which it was prepared, have to be treated as
subordinate to the text of the 1949 general pr ocès-verbal and the individual procès-verbal of
description, which are the operative texts, and which do not describe any particular stopping
point.
[End slide 4]
3. Map 134
[Slide 5: map 134 attached to the 1949 general procès-verbal]
20. Let me explain the particular function of map134 in its context. It forms part of a
catalogue of maps ⎯ a weighty catalogue ⎯ accompanying the 1949 procès-verbal. That
catalogue consists of 134detailed maps depic ting sectors of the boundary between pairs or a
restricted number of boundary signs, as well as a number of maps showing larger segments of the
border. Map 134 is the last in the series of detailed maps. The catalogue is a weighty document: it
takes two international lawyers to carry it, which is probably good for employment!
32
Ibid. - 29 -
21. Ukraine suggests variously that map134 is the “map intended to be referred to in the
33
procès-verbal as the map covering this maritime sector of the border” , that “it showed that
boundary as agreed” 3, that it showed the “final comprehensive boundary line” and that it “defined
35
the boundary as agreed in the general 1949 procès-verbal” . These suggestions are without any
foundation.
22. This can be seen from the fact that the catalogue of maps which accompanied the
1949general procès-verbal was signed by the repr esentatives of Romania and the Soviet Union.
The catalogue is part of the Agreement ⎯ weighty though it is. It forms part of the “demarcation
documents” which established the course of the boundary, together with the procès-verbaux
themselves. It is recognized as such by both th e 1997 and 2003 Treaties between the two Parties.
For instance, Article 1 of the 2003 Border Régime Treaty specifies that:
“[t]he State border between Romania and Ukraine passes on the ground as defined and
described in the [1961] Treaty... as well as in all the corresponding demarcation
documents, the maps of the State border between the former People’s Republic of
Romania and Union of the Soviet Socialist Republics, the protocols of the border signs
with their draft sketches, the corresponding annexes and their additions, as well as the
documents of verifications of the State border line . . .”
[“[l]a frontière qui sépare la Roumanie et l’Ukraine passe par les endroits définis et
décrits dans le traité [de 1961]... ainsi que dans tous les documents de démarcation
correspondants, les cartes sur lesquelles figure la frontière d’Etat entre l’ancienne
République populaire de Roumanie et l’ancie nne Union des Républiques socialistes
soviétiques, les protocoles relatifs à l’empla cement des bornes, avec leurs croquis,
annexes correspondantes et documents additionnels, de même que dans les documents
approuvés . . . relatifs à l’inspection de leur frontière commune . . .”].
All of those elements, including the catalogue of maps, are listed and they are given co-ordinate
status.
23. The maps contained in the catalogue therefore cannot be read in isolation. They have to
be interpreted in the light of the purpose for which they were created ⎯ to accompany the
1949general procès-verbal and to depict the various sectors of the boundary whose delimitation
was agreed in that procès-verbal.
[End slide 5]
3RU, para. 3.27.
34
Ibid., para. 3.40.
3Ibid., para. 3.47. - 30 -
24. Once this is understood, it is clear that there is no conflict between the text of the
procès-verbaux and map134. In this regard, it is u seful to look again at the last two maps in the
catalogue, map 133 and map 134, again they are at tabs V-3 and V-4 in your folders.
[Slide 6: map 133 attached to the 1949 general procès-verbal]
25. As appears from its title 36, the purpose of map133 is to depict the boundary between
border signs 1436 and 1438. Some of these maps depicted one sector, some depicted two.
Map 133 depicts part of the land boundary, and the beginning of the maritime boundary, showing
the elbow in the boundary at border sign 1438. The symbol used to depict the boundary along its
entire length is the same ⎯ in the final section of the Danube, where it follows the course of the
Musura mouth of the Danube, the border is indicated by dots and dashes; where the boundary
divides areas of open water, the boundary uses the same sign. Also of relevance in this regard is
the key to the right of the chart ⎯ the relevant markings in Romanian are indicated as being, and I
hope Romanian speakers will excuse my pronunciation, “linia frontierei de Stat” for the marking
used to depict the boundary on land, and “linia frontierei de Stat pe ap ă şi adâncimi” for the
marking used to depict the bounda ry in the sea. These may be tran slated, I am told, as “the State
boundary line” and “the State boundary line on water and in the water column”.
[End slide 6]
[Slide 7: map 134 attached to the 1949 general procès-verbal]
26. The final map in the series, map134, is entitled “Mapof the State Border between the
Union of Socialist Soviet Republics and People’s Republic of Romania from border signs no. 1438
to no. 1439”. The title makes its purpose clear: to depict the boundary between those two border
signs and nothing else.
27. Although there is no key on map134, the boundary is depicted by the same dots and
dashes symbol as used for the maritime portion of the boundary in map 133; and it is marked along
its same length with no interruptions. It will al so be noted that, again, the continuation of the
boundary on either side of the border signs is depicted using the same marking ⎯ before border
sign 1438, going towards the Musura mouth of the Danube; and after border sign 1439, passing
36
RU, para. 3.27. - 31 -
along the 12-mile arc around Serpents’ Island. Ag ain the maritime areas on either side of the
boundary are clearly marked with abbreviations s howing the appurtenance of the relevant areas.
Not once but twice. In particular , it will be noted that one pair of these abbreviations is positioned
on the sector of the boundary after border sign1439 running around the 12-mile arc around
Serpents’ Island.
28. In a map depicting the boundary between border signs 1438 and 1439, it is not surprising
that the boundary beyond those points was not show n in complete detail. Contrary to Ukraine’s
suggestion, map 134 was not intended “specifically to show the boundary which had been agreed in
the procès-verbal” 37 in its entirety, nor was it a general “boundary map” . 38
29. Ukraine bases its whole case in relation to this issue on the fact that the boundary
depicted on the 12-mile arc around Serpents’ Island on map 134, terminates short of the edge of the
map, leaving a gap. But nothing is to be read into that fact.
30. That less attention was paid to depicting the boundary to the east of border sign 1439 on
map 134 can be seen by examining how the boundary to the west of border sign 1438 is depicted.
Here there is undoubtedly an agreed boundary, one which extends up the Danube. But on map 134,
the boundary is not depicted as extending the full di stance back to border si gn 1437, located some
distance up the Musura branch. Rather the line te rminates, as you can see, in the entrance to the
Musura mouth. It would be absurd to suggest that this means that the border only extends as far as
is shown on map 134. The same reasoning applies to the boundary to the east of border sign 1439.
[End slide 7]
[Slide 8: plate I annexed to the 1949 general procès-verbal (fig. RR18)]
31. The fact that map 134 was not intended to depict the full extent of the boundary on the
12-mile arc surrounding Serpents’ Island is confir med by other maps included in the catalogue.
Plate I in the catalogue, which is tabV-7 in your folders, gives an overview of the course of the
border from its origin at the tripoint between Romania, the Soviet Union and Hungary in the west,
all the way to the Black Sea. It is true it is on ve ry small scale, but it is clear that the sector of arc
depicted as going around Serpents’ Island is substantially greater than that shown on map 134.
37
RU, para. 3.40.
3Ibid. - 32 -
[End slide 8]
[Slide 9: plate V annexed to the 1949 general procès-verbal]
32. Similarly, plate V (tabV-8), which serves as a key to the detailed maps covering the
eastern part of the boundary, from border sign 1230 up to border sign 1439, equally shows the
boundary after border sign 1439 extending substantially further around the 12-mile arc drawn from
Serpents’ Island.
[End slide 9]
[Slide 10: difference between the positions of the final point of the boundary as depicted on
map 134, plate I and plate V]
33. The difference in the extent of the boundary after border sign 1439 as depicted on these
three different maps in the catalogue, is shown if map134 is juxtaposed to plates I and V on the
same scale, and we do this in tab V-9 of your fo lders. The arc of circle depicted on map 134, the
shortest of the three arcs, is roughly 23º. You can now see superimposed on map 134 the extent of
the boundary as shown on plate V of the catalogue; it subtends an angle of approximately 37º.
Undertaking the same process in relation to plate I, you can see that the extent of the boundary is
considerably more ⎯ it is almost 63º. The end of the depicted boundary on map one is located at a
point on the arc to the south-south-east of Serpents’ Island.
34. Ukraine argues that plates I and V are of no value 39. But each of these three plates form
part of the catalogue, which itself forms part of the overall delimitation agre ement. The fact that
two other maps contained in the same catalogue depict a boundary extending further around the
12-mile arc than map 134 confirms there was no intention that map 134 should “define” the extent
of the boundary around the island.
[End slide 10]
4. Subsequent agreements
35. Following the conclusion of the 1949 pr ocès-verbaux, the border as so agreed was
formally confirmed in the 1949 Treaty on the Régime of the Romanian-Soviet State Border, which
was signed at Moscow on 25 November 1949 40. This Treaty referred back to and confirmed the
39
RU, para. 3.36.
4MR, Ann. 16. - 33 -
boundary as it “passes in the field as it is determined in the demarcation documents signed on
27 September 1949 at Bucharest . . .” (“est tracé su r le terrain tell qu’elle a été déterminée dans les
documents de demarcation signés le 27 septembre 1949 à Bucarest . . .”). The Moscow Treaty in
other words confirmed the whole of the opera tion carried out by the general and special
procès-verbal and the attached maps. This was a ca se of demarcation first together with elements
of delimitation confirmed by a later treaty.
36. That was the position as it stood in 1949. The 1949 procès-verbal taken together with the
Moscow Treaty established a maritime boundary extending beyond border sign 1439, around the
exterior margin of the 12-mile “marine boundary zone” surrounding Serpents’ Island. After the
Moscow Treaty, after the general procès-verbal, it was not open to Romania to argue that there was
no marine boundary zone surrounding Serpents’ Island. It still seems to be open to Ukraine to
argue that.
[Slide 11: map 134 annexed to th e 1949 general procès-verbal, with the 6-nautical-mile Romanian
territorial sea according to the 1949 coastal situation]
37. In 1949, Romania only claimed a 6-m ile territorial sea, and you can see this now
superimposed on map 134 (tab V-10); the final point of the 6-mile territorial sea as it was in 1949
we have referred to as point A. As is clear from the use of the symbols on the sketch-maps
contained in the individual procès-verbaux of description, as well as from maps133 and 134, the
maritime boundary so delimited was un differentiated along its entire length. This is so despite the
fact that only in this inner section to the west of pointA did it separate the territorial seas of
Romania and the Soviet Union, as they then were. In its outer portion, to the south and east of
pointA, there was a zone beyond the Romanian 6- mile territorial sea which was clearly marked
nonetheless as Romanian. As you can see, on map 134, the initials “RPR”, denoting the Republica
Populară Română, are located beyond the 6-mile line, while the initials “URSS” are used in the
corresponding position to the north of the bounda ry, situated in the 12-mile “marine boundary
zone” around Serpents’ Island.
38. The natural interpretation of the 1949 Ag reement is that Romania and the Soviet Union
thereby intended to fix an all-purpose maritime boundary between zones appertaining to them, and
that Serpents’ Island was to be limited to a 12-mile “marine boundary zone” (zone frontière - 34 -
maritime”). As a result, the parties agreed that whatever future developments might take place, in
terms of entitlement to maritime zones, Serpents ’ Island was to be entitled only to that 12-mile
strip.
[End slide 11]
39. After 1949, the Soviet Union and Romani a concluded a number of further agreements,
but none of them affected the maritime boundary as agreed in 1949.
40. A number of further bilateral agreements were concluded in 1954, including an Act
41
redemarcating the location of the buoy constituting border sign 1439, which had disappeared . No
matter how careful the demarcators, there is a tendency for border signs to disappear! The
1954 Agreement substantially repeated the terms of the 1949 procès-verbal.
41. The 1961 Border Régime Treaty 42did not affect the course of the maritime boundary in
the relevant sector at all; it affirmed the continue d validity of the 1949 procès-verbal. It envisaged
further demarcation work, and this was carried out in 1961-1962, resulting in a final procès-verbal
43
signed in 1963 .
42. The terms of the 1963 procès-verbal were substantially the same as those used in 1949,
except that the general description of border sign 1439 now makes reference to a 12-mile “Soviet
territorial sea” (“la mer territoriale soviétique”) rather than a 12-mile “marine boundary zone”
(“zone frontière maritime”). This was the first reference in any of the boundary agreements to a
12-mile Soviet territorial sea. Nothing in the text of the 1963 procès-verbal gives any reason to
believe that it was the intention of the Partie s to modify the 1949 Agreements. And this is
confirmed by subsequent events.
43. There was a further demarcation process –– it seemed to happen on a decadal basis –– in
1972-1973, resulting in a further general procès-verb al signed in 1974, together with individual
procès-verbaux of description of the border signs . The description of border sign1439, in the
general procès-verbal of 1974, as in 1963, likewise referred to a 12-mile S oviet “territorial sea” 44.
41MR, Ann. 17.
42
Ibid., Ann. 18.
43Ibid., Ann. 19.
44Ibid., Ann. 21. - 35 -
However, on this occasion, a further individual procès-verbal of description was concluded in
relation to border sign1439–– you will find the text at tabV-11. That document referred, as of
old, to the Soviet “marine boundary zone” (“zone frontière maritime”), as the initial individual
procès-verbal of border sign 1439 had done in 1949. And, again, it provided that –– this is in 1974:
“from the border sign no. 1439 (beacon) the boundary passes on the exterior margin of
the USSR marine boundary zone of 12mile s, leaving Serpents’ Island to the USSR
side” 45
[“de la borne frontière nº 1439 (balise), la ligne frontière longe la limite extérieure de
la zone frontière maritime de l’URSS de 12 milles, attribuant l’île des Serpents à
l’URSS” .]46
A picture of complete continuity, despite supervening changes in the law of the sea.
[Slide 12: sketch included in the 1974 individual procès-verbal of border sign 1439]
44. As in 1949, a sketch-map was included as an integral part of the 1974 individual
procès-verbal. As with the sketch-map from 1949, it depicts the boundary with the same symbol
running along its entire length, including after border sign1439, for a distance along the
12-mile arc until it reaches the edge of the map. And once again, abbreviations of the names of the
parties are located on either side of the boundary in order to indicate the State to which the area in
question appertains.
[End slide 12]
45. For the sake of completeness, it is nece ssary to recall subsequent events following
Ukraine’s independence–– that was the situation to which Ukraine succeeded and it is not in
dispute, but it did succeed to that situation:
First, in the 1997 Additional Agreement, Ukraine expressly affirmed the binding character of
the border as agreed in the 1961 Border Régime Treaty, as well as in the 1949 procès-verbaux and
catalogue.
Secondly, the binding character of the previous delimitation and demarcation exercises was
again expressly reaffirmed, in so far as they delimited the State border between Ukraine and
45
MR, Ann. 22.
4Romania’s translation. - 36 -
Romania out to the intersection of the outer limits of their territorial seas, in 2003. I have already
47
referred to the 2003 Treaty . Article 1 of that Treaty provides that the boundary
“continues, from the border sign 1439 (buoy) on the outer limit of Ukraine’s territorial
waters around the Serpents’ Island, up to th e point of 45°05'21" north latitude and
30° 02' 27" east longitude, which is the m eeting point with the Romanian State border
passing on the outer limit of its territorial sea. The territorial seas of the Contracting
Parties measured from the baselines shall pe rmanently have, at the meeting point of
their outer limits, the width of 12 maritime miles.”
[“continue, depuis la borne 1439 (bouée) i ndiquant la limite extérieure de la mer
territoriale de l’Ukraine autour de l’Ile aux serpents, jusqu’au point situé à 45° 05' 21"
de latitude nord et 30°02'27" de longitude est, qui est le point de jonction avec la
frontière d’Etat de la Roumanie à la limite extérieure de sa mer territoriale. Les mers
territoriales des parties contractantes mesu rées à partir des lignes de base auront
toujours, au point de jonction de leurs li mites extérieures, une largeur de 12 milles
marins.”]
46. The 2003 Treaty was not a withdrawal of anything agreed in earlier instruments. Its
purpose was limited to fixing the border out to the in tersection of the outer limits of the territorial
seas –– the point we have referred to as point F. It had no consequences for the 1949 procès-verbal
and later documents to the extent that they determined the course of the maritime boundary
between the Parties beyond that point.
48
47. At the time of conclusion of the 2003 Border Régime Treaty , and again on its entry into
force 49, Romania reiterated its position that the specification of the co-ordinates of the last point of
the territorial sea boundary between the Parties did not affect in any way the process of delimitation
of the respective continental shelves and exclusive economic zones of the Parties.
5. Conclusion on the 1949 Agreements
48. Madam President, Members of the Court, the procession of agreements starting with the
1949 procès-verbaux, together with their accompan ying maps and sketches, shows that the Soviet
Union and Romania agreed a boundary which, af ter border sign 1439, continued along the 12-mile
arc “surrounding” or “around” Serpents’ Island, with out the determination of any terminal point.
The maps accompanying the 1949 procès-verbal de pict that boundary in varying ways and no
significance was attached to the endpoints depicted on those three maps. What did not vary, what
47MR, Ann. 3.
48
Ibid., Ann. 23.
49Ibid., Ann. 24. - 37 -
was invariant throughout this long process, was the express attribution to Serpents’Island of a
12-mile “marine boundary zone” (“zone frontière ma ritime”) around the Island. The outer limit of
that 12-mile zone marked the maritime boundary; to the south was an area appertaining to
Romania. In these circumstances, the undefined, innominate, unreferred to, undescribed, endpoint
of the line shown on map 134, did not “define” the extent of the boundary. The boundary was the
boundary of the zone and the zone went around the island. It is as simple as that.
Madam President, it is ten minutes past 11. This would be a convenient moment to break ––
or you may like to break in 20 minutes?
The PRESIDENT: I think if you would find it convenient –– you have been at it for a good
period –– the Court will accommodate such a preference. The Court will rise.
The Court adjourned from 11.10 to 11.25 a.m.
The PRESIDENT: Please be seated.
Mr. CRAWFORD: Madam President, Members of the Court, after the coffee break time for
the maps.
6. Depictions of the 1949 Agreement line on later maps
(a) Arguments of principle
49. The situation I described before the co ffee break is shown on many maps. These,
produced by Romania and the Soviet Union and, after 1990, by Ukraine itself as well as by third
States, confirm what is clear from the 1949 procès-verbal ⎯ that there is a 12-mile zone around
Serpents’ Island, and that all the waters to the south of that zone appertain to Romania.
50. In this regard, there is a clear difference of principle between the Parties. Ukraine takes
the position, relying on the dictum of the Chamber in the Frontier Dispute case (Frontier Dispute
(Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp.582-583, paras.54-56) that
50
only maps forming part of an agreement between the Parties are of any relevance .
50
CMU, para. 5.129; RU, para. 3.52 (ii). - 38 -
51. But Ukraine’s approach is highly selective. It gives weight only to map134, while
denying any value to plates I and V, which form part of the same catalogue. It also ignores the
sketch-maps which form an integral part of the individual procès-verbaux of description.
52. In any case Ukraine’s argument misunde rstands both the Chamber’s dictum and
Romania’s argument.
53. The Chamber in the Frontier Dispute case observed:
“in some cases maps may acquire such legal force [sc. of a territorial title], but where
this is so the legal force does not arise sole ly from their intrinsic merits: it is because
such maps fall into the cate gory of physical expressions of the will of the State or
States concerned. This is the case, for exampl e, when maps are annexed to an official
text of which they form an integral part.” ( Frontier Dispute (Burkina Faso/Republic
of Mali), Judgment, I.C.J. Reports 1986, p. 582, para. 54.)
[“dans quelques cas, les cartes peuvent acquérir une telle valeur juridique [c’est à dire,
celle d’un titre territorial] mais cette vale ur ne découle pas alors de leurs seules
qualités intrinsèques : elle résulte de ce que ces cartes ont été intégrées parmi les
éléments qui constituent l’expression de la vol onté de I'Etat ou des Etats concernés.
Ainsi en va-t-il, par exemple, lorsque des cartes sont annexées à un texte officiel dont
elles font partie intégrante.”]
As is clear from the words “for example”, the Chamber envisaged other circumstances where maps
may constitute the physical expression of the will of the State.
54. One such circumstance is where the map in question is produced by a State and depicts
without qualification a boundary between itself and another State. In those circumstances, the
depiction of the boundary constitutes an expression of the will of the State itself in so far as, to
quote your judgment in Minquiers and Ecrehos case, the map in question must be considered as
“evidence of the [State’s] offi cial view at that time” (Minquiers and Ecrehos (France/United
Kingdom), Judgment, I.C.J. Reports 1953 , p.71), (“la preuve des vues officielles [de l’Etat] à
l'époque”]. You have recently recognized the relevance of such maps in the Malaysia/Singapore
case ( Sovereignty over Pedra Branca/Pulau Ba tu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment of 23 May 2008, para. 271) . Another instance in which reliance
on maps may be appropriate is where the map in question may be taken to constitute an admission
against interest, as you also recently recognized in Malaysia/Singapore, making reference to the
decision of the Eritrea/Ethiopia Boundary Commission (ibid., quoting the Decision regarding - 39 -
Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of
Ethiopia, 13 April 2002, p. 28, para. 3.28).
55. Now I do not suggest that the later maps constitute a source of title, or that they can
override the express terms of the 1949 procès-verbaux by which the boundary was fixed. Rather,
they help in clarifying or confirming the inte rpretation of the 1949 pro cès-verbaux, and showing
the understanding of the parties. It is for this pur pose that we rely on the various subsequent maps
produced by the Soviet Union, Romania, and later Ukraine.
56. In similar fashion, maps produced by th ird parties may be relevant as indicating the
understanding of informed observers.
57. The use of maps for this purpose is aptly summed up by the observations of the Court of
Arbitration in the Beagle Channel case:
“it is not a matter of setting up one or more maps in opposition to certain Treaty
attributions or boundary definitions, but of the elucidation of the latter ⎯ in which
51
task map evidence may be of assistance” .
The Court of Arbitration continued:
“maps published after the conclusion of the Treaty can throw light on what the
intentions of the Parties in respect of it were and, in general, on how it should be
interpreted. But the particular value of such maps lies rather in the evidence they may
afford as to the view which the one or the other Party took at the time, 52
subsequently, concerning the settlement resulting from the Treaty.”
58. These observations are particularly apposite in relation to the maps and charts produced
by Romania and the Soviet Union, and by Ukraine following its independence, which depict the
boundary as extending around the 12-mile arc around Se rpents’ Island to a point to the east. Any
map by any of the States’ parties to the 1949 agreement which depicts the boundary as extending
far beyond the extent shown on map 134 is of par ticular relevance as constituting an admission in
the case of Ukraine and admission against interest. Such a map will be of even greater relevance if
it was produced at a time when either the Soviet Union or Ukraine was aware that there was a
difference of opinion.
51
Beagle Channel Arbitration between the Republic of Argentina and the Republic of Chile , Report and Decision of the
Court of Arbitration, 18 February 1977, 21 RIAA 57, at 163-4 (para. 137).
5Ibid., p. 164, para. 137. - 40 -
(b) A review of the map evidence
59. Madam President, Members of the Court, I do not propose ⎯ you will be relieved to
hear ⎯ to take you through each of the relevant maps , which have been filed with the Registry. A
table summarizing each of them, each of those maps which show a maritime boundary around
Serpents’ Island, is at tab V-13 in your folders. Th ere are 30 such maps in the file before the Court
in addition to the map from the Lighthouses of Ukraine volume which I showed you at the
beginning of this presentation; 30 maps showing a boundary around Serpents’ Island. I will do no
more than comment briefly on the more striking examples contained in the publicly available maps
produced by the Soviet Union, Ukraine and Romani a, and then extremely briefly, those produced
by other States.
60. The first group of maps dates from the period shortly after the conclusion of the
1949Agreement: they may be taken as evidence of the understanding of the parties to that
agreement as to its effect.
[Slide 13: chart entitled “Black Sea. The Wester n Bank. From the Sulina Mouth to Cape Midia”
produced by the Hydrographical Service of the Black Sea Navy of the Soviet Union (1957)]
61. We start with the chart, entitled “Black Sea. The Western Bank. From the Sulina Mouth
to Cape Midia”, produced by the Hydrographical Service of the Black Sea Navy of the Soviet
Union in 1957. It is entry 5 in the table, and at tab V-14 in your folders; it was submitted to the
Court and admitted by you last year. The ch art shows the maritime boundary proceeding on the
12-mile arc around Serpents’ Island to a point roughly east-south-east of the island, at which point
it is curtailed by the edge of the chart. The boundary extends far beyond the point shown on
map 134.
[End slide 13]
[Slide 14: chart entitled “Western Part of the Bl ack Sea” produced by the Hydrographical Service
of the Black Sea Navy of the Soviet Union (1957)]
62. A second chart, located at tab V-15, is entitled “Western Part of the Black Sea”, and was
likewise produced by the Hydrographical Service of the Black Sea Navy of the Soviet Union. This
is the second edition of a chart which was produced in its first edition in 1951 and which Ukraine
53
produced . The 1951 chart did not show any mar itime boundaries at all, it only contained
53
RU, Ann. 3. - 41 -
navigational data. The 1957 chart, the second editi on, is entry 6 in the table. It shows the
boundary as going around the 12-mile zone around Serpents’ Island all the way to a point due east
of the island.
[End slide 14]
[Slide 15: chart entitled “North-Western Part of the Black Sea from Constan ţa to Sevastopol”
produced by the Maritime Hydrographic Directorate of the People’s Republic of Romania (1958)]
63. The third chart is at tabV-16, entitled “North-Western Part of the Black Sea from
Constanţa to Sevastopol”. It was produced by th e Maritime Hydrographic Directorate of the
People’s Republic of Romania in 1958 and is entry 7 in the table. It also shows the boundary line
as going around the 12-mile arc and stopping at a point due east of the island.
[End Slide 15]
[Slide 16: chart entitled “Western Coast of the Black Sea from the Dniest er Estuary to Sulina”
produced by the Maritime Hydrographic Directorate of the People’s Republic of Romania (1959)]
64. A fourth chart, similarly depicting such a boundary, is entitled “Western Coast of the
Black Sea from the Dniester Estu ary to Sulina”. It was produced likewise by Romania in 1959 ––
it is entry 8 in the table and at tab V-17 in your folders.
[End slide 16]
65. These charts illustrate the understanding of the Parties to the 1949 Agreement, in the
period shortly after its conclusion.
66. A second group of maps to which I would draw attention are those produced by Romania
and Ukraine within the last ten years, during the period of delimitation talks.
[Slide 17: charts entitled “Black Sea and Sea of Azov”, produced by the State Hydrographic
Service of Ukraine (2000) and “Black Sea We stern Part”, produced by the Ukrainian State
Hydrographic Institution Branch “Ukrmorcartographia” (2003)]
67. A number of Ukrainian charts were produced by the State Hydrographic Service and the
State Hydrographic Institution Branch “Ukrmorc artographia”, and they depict the boundary as
extending along the 12-mile arc around Serpents’ Island to a point due east of the island. This is
the case with a chart produced in 2000, and a further Ukrainian chart produced in 2003 –– these are
at tabs V-18 and V-19.
[End slide 17] - 42 -
[Slide 18: chart entitled “Western Part of th e Black Sea from Odessa to the Sulina Mouth”,
produced by the Ukrainian State Hydrographic Institution Branch “Ukrmorcartographia” (2001)]
68. Of particular relevance is the Ukrainia n chart of 2001–– which is table entry 27 and
tab V-20 in your folders. It depicts the boundary as extending to a point on the 12-mile arc located
east of the island; the boundary up to that point is depicted using the symbol for “international
maritime boundary”. The 12-mile arc is then shown as continuing north and west until it meets the
outer limit of the territorial sea of mainland Ukraine to the north. The arc in this sector is depicted
using the symbol for “seaward limit of territorial sea” –– a deliberate distinction.
69. This chart, produced and published by Ukraine, shows a clear understanding that the
boundary to the south of Serpents’ Island goes well beyond the extent shown on map 134. Further,
given the clear differentiation of markings in the north, as compared in the south, it demonstrates
that the boundary to the south of the island, was not seen merely as a territorial sea boundary, but
an international maritime boundary for all purposes. This is a clear admission against interest.
[End slide 18]
[Slide 19: charts entitled “Western Area of the Black Sea” and “Black Sea Romanian Coast; From
the Kaliakra Cape to the Danube Delta” produced by the Romanian Maritime Hydrographic
Directorate (2003)]
70. Two charts produced by Romania in 2003 (tabs V-21 and V-22) also depict a boundary
line extending along the 12-mile arc around Serpents’ Island to a point located due east.
[End slide 19]
71. A number of observations are called for in relation to these charts:
1. they were produced by relevant official bodies of Romania and the Soviet Union, and
subsequently Ukraine;
2. they consistently show the boundary as exte nding beyond the point depicted on map134, and
as having the same character along its entire length up to the point due east of the boundary;
3. the depiction of the boundary is consistent;
4. the Soviet Union and subsequently Ukraine did not at any stage object to the depiction of the
extent of the boundary on the maps produced by Romania;
5. not only did they not object, they produced maps of their own which depicted the boundary as
extending around Serpents’ Island to a point located to the east. These maps constitute a series
of admissions against interest over a lengthy period of time. - 43 -
72. Finally, I refer, but more briefly, to the charts produced by third St ates. By France (table
entry 17); by Germany (entry 18); by Bulgaria (entry 20); and by the Russian Federation in 1994,
at which point it was a third State in relation to the boundary (entry 21).
[Slide 20: chart entitled “Black Sea Map. S oviet and Romanian Coasts from Danube Delta to
Il’icevsk”, produced by the German Federal In stitute for Maritime Navigation and Hydrology
(1991)]
73. I am only going to show you one of th ese: the chart produced by Germany in 1991,
which is tab 23. It depicts the boundary around Serpents’ Island until a point located due east; it
uses the same symbol along the entire length of the boundary, both on land and over water. What
is of particular relevance is the marking located to the south-east of Serpents’ Island, which you
can see now enlarged; you can see clearly that on the Serpents’ Island side of the boundary, the
waters are marked as appertaining to the USSR, while on the other side they are marked as
appertaining to Romania. A similar marking is used on the portion of boundary between border
signs 1438 and 1439.
[End slide 20]
74. Taken together, these maps evidence the understanding of the Parties, and of third States,
that there was an agreed boundary extending along the 12-mile arc at least as far as a point located
to the east of Serpents’ Island. The maps confirm the clear meaning of the 1949 Agreement.
75. All of the maps I have referred to use a single symbol to depict the boundary up to the
point in the east where it stops. Evidently that bo undary was thought to have the same character
throughout its entire length; it divided areas a ppertaining to Romania from areas appertaining to
the Soviet Union and subsequently to Ukraine.
76. Ukraine, of course, questions the relevan ce of the maps and charts produced to the Court
by Romania, but, and this is crucial, it has been unable to produce a single later map or chart which
supports its position that the boundary agreed in 1949 extended no further than as shown in
map 134 ⎯ not a single map. All it can do is to produce a few maps which show no maritime
boundary at all. These maps are irrelevant. They say neither one thing nor the other. They are like
calling a witness who remains silent.
77. I repeat: Ukraine has not b een able to produce a single chart ⎯ not one ⎯ from the
period since 1949, which depicts the boundary in the way it proposes. - 44 -
B. Ukraine’s objections
78. Madam President, Members of the Court, I now come to the second part of this
presentation, which will be much briefer: a cons ideration of Ukraine’s objections to the positive
case of Romania which I have just endeavoured to state. Romania makes six objections ⎯ sorry,
Ukraine makes six objections: haven’t changed sides!
1. Delimitation agreements within the meaning of Articles 74 (4) and 83 (4)
79. First, Ukraine, while accepting that the various agreements are valid and binding upon it,
argues that they do not constitute “delimitation agreements” within the meaning of Articles 74 (4)
and 83(4) on the basis that they do not separat e the continental shelv es or exclusive economic
zones of the Parties, but rather separate those z ones from the 12-mile territorial sea appertaining to
Ukraine around Serpents’ Island. ProfessorPelle t has dealt with that argument as it goes to
jurisdiction, I will deal with it as it goes to merits.
80. Articles 74(4) and 83(4) do not stipulate that an agreement to which they refer should
delimit zones having the same character. To the extent that the 1949 general procès-verbal and
subsequent agreements resulted in a delimitation of the maritime zones of the Parties, and the
boundary delimits on at least one side either a continental shelf or an exclusive economic zone,
then they are agreements “delimiting” a continen tal shelf or exclusive economic zone within the
meaning of Articles 74 (4) and 83 (4), and within the ordinary meaning of those terms they delimit
the zone.
81. A moment’s reflection will reveal how often this occurs, for example when a small island
belonging to one State is close to the mainland equidistance or median line. In such circumstances,
it is usual, if not invariable, that the small island be restricted to a 12-mile enclave or semi-enclave.
Such a boundary undoubtedly constitutes a delimitation of the continental shelf and economic zone
of the opposite State, even if along part of that course it has on one side only a territorial sea.
Ukraine’s argument can be taken to the absurd ex treme: an agreement drawing a line 13 miles or
12-and-a-half miles around an island is a delimita tion agreement, or 12miles and 1m, but not
12 miles alone, and yet 12 miles is the common form. - 45 -
2. The lack of any express agreement in relation to point X and the lack of contemporaneous
maps showing the extension of the boundary as far as point X
82. Secondly, Ukraine argues that none of the agreements stipulates that the agreed boundary
54
extends as far as the point due east of Serpents’ Island ⎯ the point we have called point X .
83. But the extent of the agreed boundary is fixed by the language of the 1949general
procès-verbal itself, and confirmed in subsequent agreements. It is clear in providing that the
boundary goes along the exterior margin of the 12-mile marine boundary zone around Serpents’
Island, it extends as far as the zone, vis-à-vis Romania.
84. In any case, Ukraine’s argument cuts both ways; neither is there any express limitation
of the boundary. A boundary encompassing less th an 23º of arc cannot be said to be one
“surrounding” Serpents’ Island.
85. Ukraine stresses that none of the maps accompanying the procès-verbal shows the agreed
55
boundary extending as far as point X . But again the starting-point must be the actual language of
the procès-verbal: what did it mean? Plates I and V show the agreed boundary as extending
beyond the point shown on map 134: it is clear th at the map is not limited as shown on map 134.
Moreover, the charts produced by the parties to the 1949 procès-verbal show their clear
understanding that the agreed boundary was not so limited.
3. The mandate of the Joint Boundary Demarcation Commission
86. Thirdly, Ukraine suggests that the t ask of the Joint Soviet-Romanian Boundary
Demarcation Commission, which produced the 1949 package, “did not include coverage of the
56
maritime sector of the boundary” : the Commission “was only entrusted with the task of
demarcating the State boundary as far as Boundary Point 1439”.
87. The first suggestion of course is without foundation. After all the Demarcation
Commission fixed the location of two border signs located at sea: 1439 and 1438.
88. As to the second suggestion, it is true that the border sign 1439 was the last border sign
57
demarcated. But the fact that border sign 1439 was the “last point of the demarcated border line”
54RU, para. 3.12.
55
Ibid., paras 3.25-3.28.
56Ibid., para. 3.14.
57See ibid., para. 3.15. - 46 -
has no consequences for the delimitation effected by the 1949 general procès-verbal, and confirmed
without qualification in the Moscow Treaty.
89. On the clear terms of the 1949 general procès-verbal, and as depicted on the
accompanying maps forming part of the agreemen t, the boundary delimited by agreement extends
beyond border sign 1439 following the exterior margin of the 12-mile marine boundary zone
around the island. The conclusion that the procès-verbal delimited the boundary beyond border
sign 1439 is entirely consistent with a demarcation of the border signs in terms which also covered
a process of delimitation.
90. Ukraine argues that “the Joint Commission regarded border sign 1439 as ‘the final point
58
of the demarcated border line’” . It was certainly the final demarcated point, but the fact is that
the Parties agreed upon and thereby inevitabl y delimited the course of the boundary around
Serpents’ Island. It is expressly referred to as “the exterior margin of a marine boundary zone of
12miles”. (“suit la limite extérieure de la zone frontiére maritime de 12 milles”) The zone was
agreed, and not merely as a zone appertaining to th e Soviet Union. The boundary stipulated to go
along its outer margin separated the “marine boundary zone” (“la zone frontière maritime”)
appertaining to the Soviet Union from areas appertaining to Romania.
91. Whatever the scope of the mandate of th e Joint Commission may have been, Ukraine is
unable to escape the fact that the Commission di d delimit the boundary beyond border sign1439
and what it did was explicitly endorsed to its full extent in a series of subsequent agreements.
4. The preparatory work of the Joint Commission
92. Fourthly, Ukraine refers to the prepar atory materials produced by the Commission:
59
it notes that the travaux say nothing about the boundary going as far as point X .
93. But, equally, the preparatory works say nothing as to the limitation of the boundary on
which Ukraine relies. What they do ⎯ and all they do ⎯ is to stipulate that the boundary is “on
the exterior margin of the 12-mile marine boundary zone”. The zone did not stop just after it had
58
RU, para. 3.19; emphasis in original.
5Ibid., paras. 3.20-3.21. - 47 -
started in the south-west sector of the circle, a nd if the zone did not stop, neither did the boundary
going along its exterior margin.
94. In fact, little assistance is to be derived one way or another from the preparatory works.
The only indisputable point is that the Joint Commission agreed that the maritime boundary “runs
along the Serpents’ Island from beyond point1439” 60. In that regard, the travaux are consistent
with Romania’s position and inconsistent with that of Ukraine.
5. Ukraine’s reliance on map 134
95. Fifthly, Ukraine is forced to make the best of a bad job. It accepts that
the1949procès-verbal resulted in an agreed boundary going “ some distance along the arc around
61
Serpents’ Island” . But it carefully abstains from saying the precise point to which that was
agreed, and it does not assert that the boundary ag reed extended even as far as is depicted on
map134. You will search in vain in the Rejoinder for a clear statement on that point: if beyond
sign1439, where does the boundary stop? Ukraine never tells you. Rather, it asserts negatively
that “there is no agreement taking the agreed boundary further along the Serpents’ Island than the
62
point of intersection . . .” ; that there is no evidence “that th e agreed boundary extends as far as
63
point X” ; that “there is no agreed maritime boundary running further east than the point agreed in
the 2003 Ukraine-Romania Treaty” 64. A series of negatives does not make a positive case.
96. In support, Ukraine relies on the supposed coincidence between the point of intersection
of the outer limits of the territorial seas of the Parties, as agreed in 2003, and the supposed terminal
point –– as allegedly depicted on map 134. On the b asis of that apparent coincidence, it constructs
an elaborate hypothesis, unsupported by any eviden ce, that the reason why the SovietUnion and
Romania may have agreed to depict the boundary as extending only so far as depicted on map 134,
was because the parties were already contemplating that Romania might extend its territorial sea to
60
RU, para. 3.21.
61
Ibid., para. 3.7 (emphasis in original); see also paras. 3.22 and 3.35; cf. para. 3.17.
62Ibid., para. 3.7.
63Ibid., para. 3.25; see also paras 3.22, 3.49 and 3.50.
64Ibid., para. 3.2; see also paras 2.12, 3.5 (a), 3.65, 3.67. - 48 -
12miles. In short, it suggests that the boundary depicted on map134 was intended to anticipate
this possibility.
97. Ukraine’s hypothesis is, however, untenable as soon as one looks at the actual geography
and the configuration of the coast in 1949.
[Slide 21: effects of the extension of the Sulina dyke]
98. In 1949, Romania claimed a 6-mile territorial sea –– and you see, again, the outer limit of
that 6-mile territorial sea, drawn on the basis of the coastline as it existed at that time–– this and
the following slides are at tab V-24 of your folder s. It will be seen that border sign 1439 was well
outside the territorial sea, and that the outer limit of the 6-mile territorial sea bisected the boundary
at a point between border signs 1438 and 1439. A number of observations are called for.
99. First, it will be recalled that border sign 1 439 is expressly stipulated to constitute one of
the turning points of the State boundary line, and th is despite the fact that it was clearly situated
outside Romania’s territorial sea at the time.
100. Secondly, as I have said, the boundary is marked using the same symbols which
undergo no change at any point in its length even though, considering the maritime zones at the
time, it constituted a boundary which separated waters subject to different legal régimes.
101. Thirdly, the waters to the north and south of the boundary are clearly marked as
appertaining to the two States; one set of abbreviations is located either side of the section where it
runs along the 12-mile arc, well outside Romania’s territorial sea.
102. As to Ukraine’s suggestion that the poi nt shown on map 134 was contemplated because
of the 12-mile extension, it is said that point coincides with the point where a 12-mile territorial sea
would have ceased.
103. But if the 1949 general procès-verbal had been intended to fix a final point for the
boundary, the Parties would certainly have made reference to that point in the text and would have
identified it with co-ordinates, as they did with care in relation to all other 1439 turning points.
They did no such thing.
104. Further, the alleged final point shown on map 134 is in a different place from the final
point of the outer limit of the Parties’ territorial sea, as agreed in 2003. I set out the co-ordinates of
the two points in the text of my speech; I will not read the list of numbers, but I would be grateful if - 49 -
the Registry would include them in the printed version. Final point of boundary depicted on
map 134, 45º 05' 24" N, 30º 02' 17" E; point F (2003), 45º 05' 21" N, 30º 02' 27" E. What I can
tell you is that the difference between the end point on 134 and the point agreed in 2003 is 93m
north-south and 219 m east-west –– a non-trivial difference that would have been picked up by the
Parties had it existed65.
105. But more important than that, Romania and the Soviet Union could not have foreseen
the point which would be agreed in 2003 as the intersection of the outer limit of the 12-mile
territorial seas of Romania and Ukraine. Point F is only located where it is as a result of substantial
physical modifications to the Sulina dyke –– the Romanian base point.
106. These modifications took place between the 1950s and the 1980s. They resulted in the
extension of the dyke by approximately 1.5 miles. The extensions did not follow any schedule or
predetermined plan, because they resulted from the gradual and uneven deposit of sediments. The
Parties could not have foreseen, in 1949, where the Sulina dyke would end in 2003.
107. In fact, the point 12miles from the end of Sulina dyke, as it was in 1949, would have
been a substantial distance to the north-west of bot h point F, as agreed in 2003, and the supposedly
final point of the boundary depicted on map 134 –– you can see this on the screen now. The last
point agreed on map134 was actually 13.4nautical miles from the base point at the end of the
Sulina dyke, as it was in 1949.
108. If it had been the intention of the Parties to allow for the eventual extension of
Romania’s territorial sea to 12miles, then the boundary agreed by them would have been
substantially shorter than that depicted on map 134.
109. In short, given the actual coastal configur ation, even on Ukraine’s case as to the effect
of map134, the Parties nevertheless agreed a rela tively substantial length of border, more than
1mile in length, which separated areas outside Romania’s putative 12-mile territorial sea and the
12-mile maritime zone around Serpents’ Island.
65
RU, para. 3.45. - 50 -
6. Ukraine’s position as to the status of the waters on each side of the agreed line
110. Sixthly and finally, Ukraine argues that the parties could not have intended to agree an
all-purpose maritime boundary given that, at the time, beyond the territorial seas the area was
66
regarded as high seas . Rather, the Soviet Union and Romania agreed a boundary separating
maritime zones appertaining to the Soviet Union from the high seas, without any limitation on
subsequent claims by the Soviet Union to further maritime zones to the south.
111. In support of this thesis Ukraine suggests that the 1949 procès-verbal makes no
reference to the status of the waters to the s outh of the agreed boundary outside the Romanian
territorial sea of 12 miles, which the parties, it alleges without any ev idence, were supposedly
contemplating 6. But this can only be relevant if the parties had in mind the extension of the
territorial sea and, as I have said, there is no evidence of that. Moreover, the suggestion is
inconsistent with the extent of the boundary depicted on map134 taking into account the
geography as it was in 1949. The fact remains th at the “RPR” abbreviation on the sketch included
on map 134 as well as on the individual procès-verbal, is situated beyond the 6-mile limit. What is
more, it is more or less bisected by what would have been a 12-mile Romanian territorial sea based
on the extent of the Sulina dyke in 1949.
[End slide 21]
112. Ukraine protests that the 1949 procès-verbal does not indicate that it was the intention
of the parties to delimit a single all-purpose boundary. But neither did it make any reference to the
fact that the maritime border was intended to ha ve a different character along various parts of its
length. All it does is show the same symbol. Nor does it specify at what point the change
occurred, as one would have expected if, in such a meticulous agreement, that had been the
intention of the parties.
113. If the intention of the parties had been as Ukraine suggests, they would not have
described the boundary as being the “State boundary line”. Moreover, Ukraine has not been able to
put forward a single case of State practice embodying agreement on a unilateral boundary which
has no incidence for the other State.
66
RU, para. 3.73.
6Ibid., para. 3.95 and cf. para. 3.88. - 51 -
114. In fact, the term “marine boundary zone” used in the 1949 Agreement was special to the
occasion. It was not used by the Soviet Union, wh ether in treaties or other agreements, or its own
decrees, at that time or since. It does not appear to have been a synonym for “territorial sea” 68. In
1949 the Soviet Union did not claim a territori al sea as such. Rather, following the approach
previously taken by Imperial Russia 69, it claimed a number of different zones of jurisdiction over
waters contiguous to the coast. Those zones related to customs control, fishing, regulation of radio
70
communications, icebreakers, prevention of damage to submarine cables, and so on . The
footnotes refer to the English language literature on the Soviet law of the sea. On the basis of
Soviet practice, Professor Butler, writing in 1968, said “[i]t could be argued that the Soviet Union
did not acquire a belt of territorial waters twelve miles wide until 1960” 71. Nineteen sixty was the
date the Soviet Union adopted new legislation on the Protection of the State boundary. This
coincided with its ratification of three of the Geneva Conventions of 1958.
115. It is significant that by 1949, the Soviet Union was well aware of the developing
institution of the continental shelf. It did not take the position that you had a fixed territorial sea
and nothing beyond. In 1944 it had been given a draft of the Truman Proclamation on the
continental shelf, issued the next year and it had commented on it 7. If the Soviet Union had
wanted to reserve to itself the right to claim continental shelf or other maritime zones beyond
12 miles to the south of Serpents’ Island, there were many ways it could have done so.
116. In the circumstances, the natural interpre tation of the 1949 procès-verbaux is that the
boundary was to constitute an all-purpose mar itime boundary dividing areas appertaining to the
Soviet Union from those appertaining to Roma nia. The consequence would be, whatever
developments were to occur in the future, deve lopments of which the Soviet Union was already
potentially aware, the Soviet Union would make no claim south of the agreed line.
68W. E. Butler, The Soviet Union and the Law of the Sea (Baltimore: Johns Hopkins Press, 1971), p.21;
W. E. Butler, “The Legal Regime of Russian Territorial Waters”, American Journal of International Law, Vol. 62 (1968),
pp. 59-60.
69Ibid., pp. 52-54.
70Ibid., pp. 59-61; see also L. B. Schapiro “The Limits of Russian Territorial Waters in the Baltic”, British Year
Book of International Law, Vol. 27 (1950), p. 447.
71W.E.Butler, “The Legal Regime of Russian Territorial Waters”, American Journal of International Law ,
Vol. 62 (1968), p. 75.
72See Foreign Relations of the United States, 1945, Vol. 2, pp. 1496, 1507, 1508, 1510, 1511. - 52 -
117. Ukraine is dismissive of the State practice invoked by Romania of all-purpose maritime
73
boundaries on the basis that the exam ples cited are all later than 1949t even before 1949 the
practice of maritime zones was in flux. The dive rgences in State practice, which preoccupied this
Court in Anglo-Norwegian Fisheries in 1951 (see e.g., I.C.J. Reports 1951, pp.129-131), were
already very much evident.
Conclusion
118. In conclusion, Madam President, Members of the Court, the text of the
1949procès-verbal, as confirmed by the annexe d and accompanying maps, resulted in the
delimitation of an all-purpose maritime boundary along the 12-mile arc around Serpents’ Island.
That there was such a boundary around Serpents’ Is land was confirmed by subsequent agreements
and in the mapping practice of the parties, as well as of third States. In accordance with the
primacy of agreement in international maritime delimitation, Romania requests the Court to
confirm that this boundary constitutes the initial part of the first sector of the delimitation between
the Parties.
Madam President, Members of the Court, thank you for your attention. I would now ask you
to call upon Dr. Aurescu to continue Romania’s presentation.
The PRESIDENT: Thank you, Professor Crawford. We now call upon Dr. Aurescu.
AMUr. ESCU:
C HARACTERISTICS OF SERPENTS ’ ISLAND
1. Madam President, Members of the Court, my task today is to present the factual
characteristics of Serpents’ Island. This willlay the ground for two core legal contentions of
Romania. The first is that Serpents’ Island shoul d be disregarded as a coastline for the purposes of
maritime delimitation beyond the 12 miles territorial sea it already has. Professor Pellet, who will
follow me tomorrow, will deal with this point. Secondly, as will be shown by Professor Lowe, also
tomorrow, the characteristics of this feature ⎯ a small rock, unable to sustain human habitation or
73
RU, para. 3.93. - 53 -
an economic life of its own ⎯ have as a consequence that under the 1982 Convention it generates
no legal entitlement to continental shelf or exclusive economic zone, thus confirming the effect of
the Romanian-Soviet Agreements of 1949, 1963 and 1974.
2. But beforehand, and as a factual matter, I will show four things about this Island:
⎯ first, it is a small rocky formation, which is not integrated with the mainland coast;
⎯ secondly, it never has had and does not now have a population, as it cannot sustain any;
⎯ thirdly, it is devoid of soil, of vegetation, of anim als, of water; and further, it has a very harsh
climate and is inaccessible;
⎯ fourthly, it has no resources of any kind, it can produce nothing and it cannot and does not
sustain any economic life of its own.
1. Serpents’ Island is a small rocky feature, non-integrated with the mainland coast
3. Madam President and Members of the Court, I turn then to my first point ⎯ Serpents’
Island is a small rocky feature.
(a) The geographic position of Serpents’ Island
4. The maritime formation called Serpents’ Island is located in the north-western basin of the
Black Sea, 46.5km from the Romanian port town of Sulina; the closest Ukrainian town is
Vilkovo, 60.2 km away. The city of Odessa, the capital of the administrative region which includes
Serpents’ Island, is 165 km away, thus making Serpents’ Island the remotest point of that region.
[Slide 1: Satellite picture of the Danube delta, publicly available on the NASA site
http://earth.jsc.nasa.gov/sseop/EFS/lores.pl?PHOTO=NASA7-720-6 (RR, p.142) (judges’ folder,
tab VI-1)]
5. The position of Serpents’ Island may be seen from the satellite picture which is now on
the screen.
6. Madam President and Members of the Court, I know that being a judge requires
perspicacity, but this is not an ophthalmology test. Even if the ancient Romans, the ancestors of the
Romanians, used to imagine “Justice” as a blind goddess, I assure you that your eyes are in perfect
condition. The fact is that Serpents’ Island ⎯ now being pointed out ⎯ is completely insignificant
in the context of the geography of the area. Moreove r, it is not integrated at all with the coast of - 54 -
Ukraine. Indeed, as stated by a Ukrainian press agency in June 2006 , Serpents’ Island is nothing
but “a rocky protuberance” in the Black Sea.
[Slide 2: figure3-5 titled “Population Centres on Ukraine’s Black Sea Coast” (CMU, p.21)
(judges’ folder, tab VI-2)]
7. This reality is implicitly confirme d by Ukraine itself. Figure3-5 from the
Counter-Memorial, titled “Population Centres on Uk raine’s Black Sea Coast ”, now on the screen,
simply ignores Serpents’ Island.
(b) The smallness of Serpents’ Island
8. Ukraine asserts that “the dimensions of Serpents’ Island are significant” 75. But this is
contradicted by the facts 76. The island is about 662 m long and 440 m wide . Its area is only
0.17 sq km.
9. Because of the natural effects of erosion by waves and the winds, the surface of the island
is shrinking. This process was already recorded in the nineteenth century 78: and this process
continues. A Ukrainian article of 2007, to be found in your folders at tab VI-3 79, shows that the
surface of the island is getting smaller ⎯ now being of only 16hectares, due to this continuous
erosion and rising sea levels. This fact is mentioned by various Ukrainian officials, concerned with
the consolidation of the shores in order to preven t the erosion and the splitting of Serpents’ Island
in two, as recorded by Ukrainian press articles 80. In fact, the State budget of Ukraine for 2007 81
82
and 2008 both included special financing of a programme of shore consolidation for the island.
74
RR, Anns. 12 and 13. See also RR, p. 169, para. 5.124.
75
RU, p. 76, para. 4.40.
76
RR, pp.136-137, paras.5.30-5.34; pp. 139-141, paras.5.38-5.41; pp.166-170, paras.5.109-5.125. See also
RU, p. 115, para. 6.63 and RU, p. 116, para. 6.69.
77
MR, p. 17, para. 2.10.
7MR, Anns. 6, 44, 45, 46. See also MR, pp. 151-154, paras. 10.22-10.27.
7Article title“The Island of Misfortunes”, author Vladimir Katkevich, newspaper Zerkalo Nedeli No. 19 (648),
19-25 May 2007, http://www.zn.ua/1000/1550/59326/.
80
RR, Anns. 7, 27. See also RR, p. 140, para. 5.40 and pp. 170-171, paras. 5.127-5.128.
8Annex No. 3 to Law No. 489-V, published in the Official Bulletin of Ukraine (Ofitsiniy Vistnik Ukrainy)
No. 52/2006, available athttp://www.gdo.kiev.ua/files/db.php?st=3477&god=2006 (judges’ folder, tab VI-4).
8Annex No. 3 to Law No . 107-VI, available at http://www.gdo.kiev.ua/files/db.php?st=1&god=2008 (judges’
folder, tab VI-5). - 55 -
10. Ukraine’s own annexes— the Counter-M emorial— refer to Serpents’ Island as “a
small... plot of land... situated lonely amidst the immense water space” 83, “a small island” 84
85
(“un rocher solitaire et isolée”) , “so small, that as we passed, we could view its whole extent . . . a
86 87
secluded spot . . . (“la petite île des Serpents”) , having “negligible dimensions” and “negligible
88 89 90
size” , “[a] secluded small plot of land” , an “isolated corner of land” . The Ukrainian media
views Serpents’ Island as a “minuscule part of the Ukrainian territory” 91, “an islet” and a “rocky
patch of land” 92, “a very little piece of land” 93, “a little island” 94, a “small piece of land in the
95 96
sea” , a “little hunchback in the waves” . A Ukrainian newspaper of 2002 is categorical: “even
97
to denominate Serpents’ Island an ‘island’ is excessive” .
[Slide 3: graphic comparing the sizes of Serpents’ Island, of Filfla and of Abu Musa]
11. You can see now on the screen, and in your folders at tab VI-6, a graphic comparing the
size of Serpents’ Island with tw o other maritime formations ⎯ the Maltese island of Filfla, having
an area of 0.06 sq km, that is 35 per cent of the surface of Serpents’ Island, and the island of Abu
Musa, having 12 sq km, that is 70 times bigger th an Serpents’ Island. Both were considered ⎯ by
this Court in the Libya/Malta continental shelf case, in the case of Filfla, and by the Arbitral
Tribunal in the maritime delimitation between Dubai and Sharjah, in the case of Abu Musa ⎯ as
having no effect upon the delimitation process.
8CMU Ann. 11; RR, p. 136, para. 5.31 and p. 166, para. 5.111.
8CMU, Ann. 48; RR, p. 137, para. 5.33 and p. 167, para. 5. 113.
8CMU, Ann. 49; RR, p. 167, para. 5.115.
8CMU, Ann. 50; RR, p. 140, para. 5.39 and p. 167, para. 5.116.
8CMU, Ann. 54; RR, p. 140, para. 5.39 and p. 168, para. 5.117.
88
CMU, Ann. 57; RR, p. 168, para. 5. 119.
89
CMU, Ann. 60; RM Ann. 42; RR, p. 167-168, para. 5.120.
90
CMU, Ann. 63; RR, p. 168, para. 5.122.
91
MR, Ann. 57.
92
Ibid., Ann. 71.
9Ibid., Ann. 36.
9Ibid., Ann. 56.
9RR, p. 141, para. 5.41 and pp. 169-170, para. 5.125.
9Article titled“The Island of Misfortunes ”, author Vladimir Katkevich, newspaper Zerkalo Nedeli No. 19 (648),
19-25 May 2007, http://www.zn.ua/1000/1550/59326/ (judges’ folder, tab VI-3).
9MR, Ann. 33; MR, p. 143, para. 10.5. - 56 -
(c) Serpents’ Island as a rocky feature
12. Ukraine claims that the fact that Serpents ’ Island is rocky does not make it a rock in the
legal sense of Article 121 (3) of the 1982 Convention. But this is not the present point. Romania
refers not only to the geological composition of Serpents’ Island ⎯ and indeed its subsoil and
almost its entire surface are rocky ⎯ but also to the consequences of this fact: and these
consequences can be defined in one word: uninhabitability.
13. Thus an article in The New York Times of 29 August 1856, titled “Russian Infraction of
the Treaty of Paris. Russian occupation of Serpents’ Island” 98, reproduced in your folders at
99
tab VI-7, calls Serpents’ Island “nothing but a bare rock of very limited size” . This perception is
100
also reflected in the Ukrainian press: Serpents’ Island is a “sea rock” , “a rock of compact
stone” 101, a “rocky island” 102, an “island-rock” 103, a “mere rocky surface... constituted of hard
104 105
rocks” . A description dating from August 2007 — it is in your folders at tab VI-8 — provides
that “[f]rom the height of a bird flight, Serpen ts’ Island looks exotic. But from closer distance ⎯
you are in the middle of deserted rocks.”
[Slide 4: interwar pictures of the rocky surface of Serpents’ Island (MR, figure18, p.153;
figure15, p.149, reproduced from the 1931 volume of R.I. C ălinescu, Insula Şerpilor. Schi ţă
monografică, also included in MR, Ann. 6) (judges’ folder, tab VI-9)]
14. Madam President, Members of the Court, you can see with your own good eyes the
hostile and arid features of this small rocky piece of territory on the pictures, now on the screen,
taken by Romanian scientists in the interwar pe riod, more precisely, in 1931. Ukraine accuses
Romania of a “highly selective” approach in presenting the image of Serpents’ Island 106. But this
is not correct. In fact, these pictures are quite revealing, as they were taken at a time when the
98http://query.nytimes.com/gst/abstract.html?res=9F01E3DC113CEF34BC4151DF….
99Other sources are cited in the Memorial (MR, pp.146-154, paras.10.12-10.27) and in the Reply (RR,
pp. 136-141, paras. 5.30-5.41 and p. 166-171, paras. 5.109-5.128).
100MR, Ann. 57.
101MR, Ann. 36. See also MR, p. 146, para. 10.13.
102
MR, Ann. 58.
103
RR, Ann. 8. See also RR, p. 141, para. 5.41 and pp. 169-170, para. 5.125.
104MR, Ann. 56.
105News item titled “The inhabitants of Serpents’ Island do not live an easy life”, the Ukrainian Press
Agency Podrobnosti, 30 August 2007,http://www.podrobnosti.ua/podrobnosti/2007/08/30/
452743.html, judges’ folder, tab VI-8.
106
CMU, p. 24, para. 3.45 . - 57 -
appurtenance of Serpents’ Island to Romania was under no dispute and there was no question as to
the role eventually to be played by Serpents’ Island in any maritime delimitation process. Their
accuracy and the intentions of th eir authors cannot be doubted. It is obvious that what they show
are the real natural features of Serpents’ Island. The same cannot be stated about the recent
artificial image Ukraine would like to project of this naturally inhospitable spot. I will come back
tomorrow on this issue.
[Slide 5 ⎯ Photographs of Serpents’ Island and Filfla (judges’ folder, tab VI-10)]
15. Finally I note the close resemblance of Se rpents’ Island to the Maltese island of Filfla,
which was described by this Court in the Libya/Malta case as an “uninhabited rock” ( Continental
Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p.20, para.15). In that
case, you did not find it equitable “to take into acco unt Filfla in the calculation of the provisional
median line between Malta and Libya” (ibid., p. 48, para. 64). You can see now on the screen both
Filfla and Serpents’ Island. They have the sa me rocky and arid features, hostile to any human
habitation or economic activity.
(2)Serpents’ Island has never had and does not now have a population
16. Madam President and Members of the Court, my second point is that Serpents’ Island
has never had, and does not now have a population. And there is a simple reason for this. It never
had a population because it cannot sustain human habitation. This objective situation is due to its
arid features and lack of any kind of resources, in cluding water, its small size, its remote isolation
and inaccessibility, its rough and hostile climate. All these combined factors make Serpents’
Island, naturally, a place unbearable for people to stay even for short periods of time. These factors
also result in an acute sense of seclusion, and medical problems, including especially psychological
ones for those who are forced because of their official duty to spend some limited time on
Serpents’ Island.
17. Thus a Romanian author writing in 1940 described Serpents’ Island as “secluded in the
middle of waves that nobody ever visits, that nobody ever asks about”; a potential visitor “would
find himself as isolated as on the Robinson’s island” 107. Another Romanian source of 1942 writes
107
MR, Ann. 46. - 58 -
that the “guardian of the lighthouse . . . [and] the couple of border patrols can be found there living
like exiled people” 108, while the Romanian soldiers sent there in 1944 to rebuild the lighthouse felt,
in their own words, “completely isolated from the rest of the world” 109.
18. That is why it is no surprise that the European Danube Commission ⎯ charged with the
maintenance of the lighthouse ⎯ encountered many problems, many difficulties, in finding
employees for the post of lighthouse keeper. A 1920 report of the European Danube Commission
states that “les gens ne veulent pas s’engager pa r le motif que devant être isolés du commerce des
hommes, ils n’ont pas le confort nécessaire au logement à l’île, lequel laisse beaucoup à désirer” 110.
Another Danube Commission document, from 1923, mentions that the lighthouse keeper
abandoned his post after only a couple of months. The reason: “he cannot live in continuous
isolation” 111. In fact, Ukraine itself quotes a Romanian source of 1938: “neither the guards, nor
the soldiers do resist much to the solitude... Life is neurasthenic because of its exaggerated
monotony.” 112
19. But perhaps the best description of the negative influence of Serpents’ Island is given by
the Medic-in-chief of the Romanian Ministry of Home Affairs in a report of 1938:
“the influence of Serpents’ Island, situated on rocks, . . . away from the shores of [the]
mainland, which can never be seen, and w ith the perspective of seeing and hearing
only the rhythm of waves, almost always stormy and accompanied by continuously
changing winds, is damaging, affecting the human nervous system . . ., [provoking] a
specific debility, consisting of a general depression, nervous breakdown, physical
asthenia, insomnia etc.... The influence of marine currents and of the salted air of
the island is even worse [for] the human respiratory system..., provoking lung
respiratory modifications, dry and liquid pleurisies, these diseases being likely to
aggravate if the st113ng on the island of those affected is prolonged, and even likely to
provoke death.”
20. Madam President and Members of the Court, it is the same today. The title of a
Ukrainian article of 2005 well describes the position. This is the title of the article: “I find myself
108MR, Ann. 43.
109
Ibid., Ann. 10.
110
RR, Ann. 9. See also RR, p. 153, para. 5.71.
111Romanian translation of the original text in French (il ne peut pas vivre en isolement continuel”); RR,
Ann. 11. See also RR, p. 153-154, para. 5.72.
112CMU, Ann. 63. See also, RR, p. 178, para. 5.153.
113MR, Ann. 40. - 59 -
114
again at the end of the world”. That is why it is no surprise that Serpents’ Island was never
inhabited.
21. The ancient Roman and Greek authors concur in this respect. The Roman historian
Ammianus Marcellinus mentions the island of Leu ce (the old name for Serpents’ Island) as being
“without inhabitants”, and I quote again but in Latin now: “insula Leuce sine habitatores” . He
adds that “those who by hazard are thrown here. .. go in the evening at their ships, because it is
115
said that who spend their night here put their life in danger” . The Greek philosopher Maximus
116
of Tyre comments that “no man willingly goes there” . The Roman philosopher and historian
Flavius Arrianus, contemporary with the Emperor Hadr ian, informs us that “the island is empty of
117
people” .
22. A Romanian author, who in 1894 published a well-documented monograph on Serpents’
Island, concluded, after carefully assessing all anci ent sources, that “[t]here were no inhabitants on
118
Leuce, according to all quoted writers” and th at “there were no permanent dwellings on Leuce” .
According to him, the adverse conditions on Serp ents’ Island “have always prevented people to
settle their dwellings on this solitary island”. In short ⎯ I quote from an annex to the
Counter-Memorial in French ⎯ “aucun homme n’habitoit Leuce... les anciens auteurs nous
disent que l’île d’Achille étoit déserte et sans habitants... ” 11. In fact, according to the same
source, “l’île de Leuce n’étoit qu’un lieu qui ré unissoit les âmes ou les esprits des héros
120
décédés” .
23. No sources mention any population on Serpents’ Island in the Middle Ages. The same is
true for sources from the nineteenth century. For instance, an English traveller wrote in 1810 that
121
“no human being dwells there” .
114
MR, Ann. 71.
115
Ibid., Ann. 44. See also MR, p. 163, para. 10.51.
11Ibid.. See also MR, p. 163-164, para. 10.56.
11Ibid.. See also MR, p. 163, para. 10.51.
11Ibid.. See also MR, pp. 163-164, para. 10.53.
119
CMU, Ann. 49. See also RR, pp. 175-176, para. 5.146.
120
H. Koehler, “Mémoire sur les îles et la course consacrées à Achille da ns le Pont-Euxin ”, in Mémoires de
l’Académie Impériale des Sciences de St. Petersburg, Tome X, p.571. This volume wa s deposited with the Registry by
Ukraine.
121
CMU, Ann. 50. See also RR, p. 153, para. 5.68 and p. 176, para. 5.147. - 60 -
24. Only after the lighthouse was built were a few people sent there on duty, and then on a
rotational basis, for short periods. But these few persons did not amount to a population. Russian
and Soviet Sailing Directions of 1903 and 1931 ⎯ included in Annexes12 and13 of the
Counter-Memorial of Ukraine ⎯ use the same language: “Excep t civilian lighthouse watches and
the sentry composed of four Romanian border guards nobody dwells on the island.” 122 Two
editions of a Black Sea Pilot issued by the British Admiralty in 1920 and 1930 provide
confirmation 12, as does the Great Soviet Encyclopaedia of 1933: “[e]xcept for the guardians of
124
the lighthouse and for the Romanian border patrols, there is no population” .
25. Madam President, Members of the Court, Serpents’ Island never had a population, and
this remains the case today. There is no popula tion on the island; only officials (border guards,
lighthouse keepers) and scientists sent there on a ro tational basis, for short periods of time, due to
the hostile environment 125.
26. Madam President, it is idle to pretend th at a few border guards and scientists, staying on
Serpents’ Island on official duty or under contract for short periods of time, amount to a population.
Take the demonstrative delivery of identity documen ts by Ukraine’s President during his visit to
Serpents’ Island in November 2007. The relevant press article is at tab VI-12 in your folders. It
reads that:
“The president formally strengthened the right of Ukraine over Serpents’
Island . . . [H]e handled IDs to a group of 6 border guards. Commenting this moment,
a representative of the Presidential Administra tion declared...: ‘At first sight, this
ceremony is an ordinary one, but in reality it is very important for our country. The
fact that we started to issue ID’s for the inhabitants of the island confirms its status,
which is yet another argument in the negotia tions with Romania for delimitation of its
continental shelf.’” 126
[Slide 6 ⎯ Photograph showing the delivery of an ID card to a border guard during the visit of the
Ukrainian President to Serpents’ Island (6 No vember 2007), available on the website of the
122CMU, Anns. 12 and 13. See also RR, p. 153, para. 5.69 and p. 175, para. 5.145.
123MR, Ann. 59. See also MR, Ann. 60.
124
Ibid., Ann. 41.
125
RR, Anns. 11, 12, 13, 14, 15. See also RR, p. 154, para. 5.73 and p. 177, para. 5.151. See also the news item
titled “The Regional Council established the limits of the settlement of Serpents’ Island”, the Ukrainian Press Agency
Reporter, 6 June 2008,
http://www.reporter.com.ua/cgi-bin/view_material.pl?mt_id=33071, judges’ folder, tab VI-11.
126
Article titled “Viktor Yushchenko takes care of handing passports”, author Sergei Sidorenko, the newspaper
Kommersant No. 197, 7 November 2007, http://www.kommersant.ua/doc.html?DocID=822876&IssueId=41431, judges’
folder, tab VI-12. - 61 -
President of Ukraine, at http://www.president.gov.ua/gallery/892.html#11592 (judges’ folder,
tab VI-13)]
Madam President and Members of the Court, you can see with your own eyes this “population”, in
this picture, now on the screen and in your folders at tab VI-13, from the official website of the
Ukrainian President. Six border guards do not make a population.
27. In its Rejoinder, Ukraine persists in clai ming that the Island is inhabitable, but hardly
produces any new arguments or evidence 127. Instead it continues to place great emphasis on the
128
historical importance of Serpents’ Island in terms of its notoriety and strategic relevance.
28. In Ukraine’s view, this historical notor iety proves the significance of the Island and,
consequently, its entitlement to continental shelf and EEZ. But the historical importance has no
relevance whatever as to demonstrating the capac ity to sustain human habitation or economic life.
In fact, all historical sources from antiquity to th e present times note its lack of any such capacity.
The notoriety of Serpents’ Island in antiquity w as only linked with its religious importance due to
the after-life cult of Achilles, and we owe this info rmation to the same authors who revealed that it
is deserted and uninhabited. Madam President, I th ink it is a bold move to build an argument of
life sustainability on after-life notoriety!
29. The strategic-military importance of Serpents’ Island, which explains its geopolitical
history in the last two centuries, including its seizure from Romania in 1948, similarly has no
relevance, and is incapable of proving either its capacity to sustain human habitation or economic
life; it has no connection to it. The temporary oc cupations of Serpents’ Island by soldiers of
129
various countries during war campaigns or in the Soviet era ⎯ dictated by purely military
considerations of those respective moments ⎯ were entirely supported by external means.
30. In support of its thesis that Serpents’ Island was historically inhabited, Ukraine’s
Rejoinder cites only one new document. This is an 1885 text relating to an inscription concerning
Serpents’ Island, which reads as follows:
“Elle n’est plus aujourd’hui habitée, dit-on, que par quelques pêcheurs; mais,
comme tant d’autres localités, jadis peuplées d’Hellènes, elle avait sans doute gardé,
127
CMU, p. 116, para. 6.69.
128
See CMU, paras. 7.50-7.71, plus some 23 Annexes.; RU, paras. 4.41, 6.68, 6.71.
12RU, p. 118, para. 6.71 (3), (4), (6), (7). - 62 -
durant le premier siècle de notre ère, une populati130assez nombreuse, et elle
continuait de jouir d’une certaine prospérité.”
The quotation selected by Ukraine is part of a text commenting on a badly-damaged ancient
inscription ⎯ in the author’s words, “très mutilée”. In fact, as the author of the comment notes, the
inscription does not originate from Serpents’ Isla nd. The comment itself is not a study on the
history or archaeology of Serpents’ Island, and th e author, Emile Egger, was not a historian, but a
131
philologist ⎯ he was a professor of Greek literature at the Faculté des Lettres in Paris . It is
merely a personal supposition of the author that Serpents’ Island had a population in the first
century AD, based on analogy “mais, comme tant d’autres localités, jadis peuplées d’Hellènes, elle
avait sans doute gardé . . .” 132. This supposition was not drawn from the text of the inscription and
is not supported by historic facts: there was no settlement on the island in antiquity; it was never
inhabited by the Greeks or by anyone else. All the authors of antiquity give the same information:
Serpents’ Island was “sine habitatores”, in the words of Ammianus Marcellinus.
133
31. In its Rejoinder Ukraine refers to a so-called “necropolis” unearthed on Serpents’
Island, showing ⎯ in Ukraine’s view ⎯ “that communities resided there in ancient times”. This
relies on a Russian study of 2002 which also recalled the information ⎯ overlooked by Ukraine ⎯
of “the testimonies of antique authors who wrote about forbiddance to settle on Leuce”. What kind
of “necropolis” it is, from what period, what remains were discovered ⎯ the study does not reveal
any scientific data and, indeed, any data at all. The 2002 study only mentions that the “discovery”
was made by a quarantine commissioner, who was not an archaeologist, in 1842 and that “its
examination was not completed”. According to the study, only one urn was found, and, in different
locations, a vault with a human skeleton and ot her “8 burials”. The Romanian scientists who
undertook extensive researches on Serpents’ Island during the 70 years of Romanian sovereignty
found no trace of any “necropolis”, or of any settlement. But the fact ⎯ if it is a fact ⎯ that a few
human remains are found in a certain place ⎯ in the absence of any trace of a settlement ⎯ does
not prove that the place was inhabited. An urn does not amount to a “necropolis” and certainly
130
RU, p. 118, para.6.71 (1).
131
Encyclopedia Britannica, 11th edition, Vol. V09, 1911, p. 17,
http://encyclopedia.jrank.org/ECG_EMS/EGGER.html.
13Emphasis added.
13RU, para 6.71 (2), referring to the 2002 Russian study included as CMU, Ann. 57. - 63 -
does not prove the island’s capacity to sustain life. A place where people die, but are never born ⎯
this is Serpents’ Island.
134
32. Also in its Rejoinder , Ukraine repeats its claim, already made in the
135
Counter-Memorial , that between the two world wars “according to Romanian sources, 8 people
resided permanently on the Island” and that “Rom ania planned to build a complex on the island,
including a hospital, a chapel, a small monastery an d a lifeguard station”. I respectfully refer the
Court to what we said on these points in our Reply 136. As to the first point, the people on Serpents’
Island during the Romanian period were sent there on official duty, exactly as Ukraine sends its
officials now: to maintain the lighthouse and to guard the border. They were rotated frequently, as
now, due to the rough environment on the island. They were not “permanent residents” and
certainly did not represent a population. As to the second point, it has to be noted that the so-called
“plan” was a pure fantasy. The reason it failed ⎯ in the early 1930s and not because of the war ⎯
was ⎯ and I quote the same author invoked by Ukraine ⎯ “the very tough and irregular winds,
which blow terribly from autumn to spring, the difficulty to bring supplies and especially the costs
of building” 137.
(3)Serpents’ Island is incapable of sustaining human habitation
33. Madam President and Members of the Court, the reason for the failure of such plans is
that without 100per cent external life support, Serp ents’ Island is uninhabitable. And this brings
me to my third point: the island is devoid of water, of soil, of vegetation, of animals. Instead, it is
“gifted” with a rough, unbearable climate.
34. The lack of natural water sources on Serpents’ Island is well documented in the
138
pleadings . All sources, both older and more recent , show that water on Serpents’ Island is
provided either by occasional rainfall or must be imported from the mainland, and even then it is
insufficient. According to an annex to the Ukrainian Counter-Memorial, in June 1841 some
134
RU, para 6.71 (5).
135CMU, para. 7.64.
136RR, pp. 154-155, paras. 5.74-5.76.
137RR, p. 175, para. 5.144.
138
MR, pp.159-161, paras.10.39-10.46 and MR, Anns.6, 40, 45, 50, 51; RR, pp.143-150, paras.5.44-5.58 and
pp. 171-174, paras. 5.129-5.138. See also CMU, Anns. 9, 57, 62, 63, 68, 73, 8., 91 - 64 -
Russian scientists visited Serpents’ Island fo r a couple of days to search for antiquities ⎯ and I
quote from this Ukrainian annex: “The lack of fr esh water and the hardly endurable heat made the
139
travellers hasten their departure.” The 1938 report of the Romanian Ministry of Home Affairs
reads that “[t]he lack of fresh water on the island is hard to bear... the rain water, which is
collected in some big cement reservoirs . . . can affect, in a negative way, the alimentary canal, as a
140
consequence of its strange taste and of its specific chemical composition” .
35. In its Counter-Memorial, Ukraine argues that fresh water had previously existed on
Serpents’ Island 141, and that a drilling programme started in 2003 found further supplies 142. The
first claim is vitiated by evidently inaccurate tran slations of the two Romanian interwar authors
143
cited by Ukraine . The second is vitiated by Ukraine’s misuse of the scientific data provided by
Ukraine itself 144. As shown in the Reply, a chemical comparison of the fluid extracted and
“treated” by Ukraine with Black Sea water shows that what Ukraine extracted is nothing more than
sea water plus further harmful substances. The extract falls well below the accepted health
standards for drinking water. Instead of trying to extract this “muddy” fluid ⎯ to quote Ukraine’s
Counter-Memorial, Annex 9 ⎯ it would be easier for Ukraine to purify sea water, which is, of
145
course, abundant in the Black Sea .
36. In its Rejoinder Ukraine did not contest any of these conclusions, which are, moreover
amply confirmed by the Ukrainian press. An article of 2005 reads that
“[t]he water is lacking. Water, water, all around water… But it is marine, salted water,
not good to drink. For a long time water was brought here from the mainland, and the
reserves were kept in water tanks. Doubtless it was as precious as gold.” 146
147
According to a 2006 article , the head of the Odessa Regional Department for Ecology and
Natural Resources declared that “the island contin ues to suffer because of the lack of potable
139CMU, Ann. 57.
140
MR, Ann. 40.
141
CMU, p. 23, paras. 3.40-3.41.
142
CMU, p. 23, para. 3.42.
143RR, pp. 143-145, paras. 5.45-5.48.
144See CMU, Ann. 9 versus para. 3.42 of the CMU, p. 23. See also RR, paras. 5.50-5.56.
145See RR, p. 147-149, paras. 5.53-5.54.
146
MR, Ann. 71.
147
RR, Ann. 7. - 65 -
water”, which is brought from the mainland. The Ukrainian Accounting Chamber, in a press
release of June2007, this is last year ⎯ tab VI-14 in your folders ⎯ also notes that “[w]ater
supply, water purification . . . are still not available on the island” 148.
37. Madam President and Members of the Cour t, Serpents’ Island is practically devoid of
soil and has very poor vegetation, withered and burnt during summertime. This is confirmed by
149
many sources dating from all periods, including Ukrainian ones . For instance, two Ukrainian
articles of 2007 ⎯ they are in tabs VI-15 and VI-3 in your folders ⎯ state that “the isle has no
vegetation” 150 and that the only flowers on the island ar e those painted by a midshipman stationed
151
there .
38. Despite the efforts by Ukraine to bring soil and plant trees, all these attempts to
“improve” the hostile conditions on this piece of rocky territory failed due to the rough and
152
inhospitable climate on Serpents’ Island .
39. During his visit to Serpents’ Island in November 2007, the President of Ukraine planted a
pine and asked the border guards and the regional de partment for forests to plant more trees on the
island. The Ukrainian press criticized these initiativ es as futile. An Odessa journal stated that:
“[t]he idea of the president has few chances to su cceed. Serpents’ Island... is blown by many
winds. On this piece of rocky land... no tree ev er existed.” In that regard, it referred to “a
morello cherry tree, planted some years ago by a team of scientists... which got withered last
year, even if it was taken care heartedly . . .” 153.
148
Press release of the Accounting Chamber of Ukraine of 26 June 2007, “Great problems of a small island”, in
English, available on the official website of this institution at
http://www.ac-rada.gov.ua/achamber/control/en/publish/article/main?art_….
14MR, Anns. 6, 40, 42, 43, 44, 46, 47, 48, 49. See also MR, pp. 154-159, paras. 10.29-10.38; RR, pp. 174-175,
para. 5.142.
150
Article titled “Ukraine and Romania Struggle Over Status of Strategic Achilles Isle”, the English language
Ukrainian weekly What’s On, issue No. 5 of 16-27 February 2007, judges’ folder, tab VI-15.
15Article titled“The Island of Misfortunes ”, author Vladimir Katkevich, newspaper Zerkalo Nedeli, No. 19
(648), 19-25 May 2007, http://www.zn.ua/1000/1550/59326/, judges’ folder, tab VI-3.
15MR, Anns. 36, 52, 53. See also MR, p. 162, paras. 10.47-10.49.
153
Article titled “Planning to get to Odessa, Yushchenko onl y visited Serpents’ Island”, author Dmitri Orlov, the
Ukrainian newspaper Novii Region of Odessa, 6 November 2007, http://www.nr2.ru/148600.html, judges’ folder,
tab VI-16. - 66 -
154
40. Similarly, the fauna of Se rpents’ Island is very limited . Ukraine’s “List of Island’s
Flora, Fauna and Fish Species” included in one an nex to the Counter-Memorial, shows that there
are no mammals there, with the exception of two species of rat and two types of bat 155.
Madam President, even the serpents that gave the Island its name are now extinct.
41. Not only is it the case that Serpents’ Island is very small, rocky, without water, soil,
vegetation, and fauna; it also has an appalling cl imate. This is attested by many and various
156
sources stretching back to ancient times and confirmed by the annexes to the Counter-Memorial .
By comparison with this centuries-long litany of complaints, the weather in The Hague (of which
judicial notice was once taken by Judge Schwebel (Maritime Delimitation in the Area between
Greenland and Jan Mayen (Denmark v. Norway), I.C.J. Reports 1993, separate opinion of
Judge Schwebel, p. 120) is clement and constant.
42. Serpents’ Island “is situated in the driest area of the East-European steppes”, having a
“total amount of precipitations . . . which is very low and unequally distributed during the year, as
it rains mostly during spring and late autumn, t hus determining an extremely dry and draughty
summer”, with storms and strong hurricanes “blowing... by day and night, continuously and
irritating”157. The Romanian author I just quoted noted in 1931 that “[i]t was almost impossible for
us to leave the dwelling ⎯ while our going down on the western side was met by a fierce and
almost unimaginable resistance of the strong cold damp hurricane”. These “hurricanes are not rare
at all on Serpents’ Island especially during winter ”, “fog is a frequent phenomenon in winter and
158
spring, presenting great hazards for navigation” and “during some hard winters, Serpents’
Island... experience(s) the most terrible frosts”, so as the “sea (is) frozen for several kilometres
159
around the island, a real ice bank building around it, which needed a long time to be broken” .
43. By contrast “[d]uring summer, the island l ooks like burnt off,... (because) the steppe
sun quickly burns it, while the tree shadow is unkno wn there”. That is why, according to another
154MR, Anns. 42, 44, 46. See also MR, pp. 155-156, paras. 10.32, 10.34, 10.36.
155
CMU, Ann. 85. See also RR, p. 151, para. 5.63 and p. 175, para. 5.143.
156
See CMU, Anns. 9, 10, 63.
157MR, Ann. 6. See also MR, p. 169, para. 10.68.
158Idem. See also MR, Ann. 54.
159Idem. - 67 -
author, “[t]he island is empty or almost empty.. . the inhospitable soil, rock burnt by the steppe
sun, [is] little sprinkled by rain and randomly covere d by a thin layer of red soil, always dry”. He
also mentions “the furious torment of the wav es, pouring over the island a rain of salted water as
160
pernicious to the life of plants as is the burning sun” .
44. The same is true today. Ukrainian press articles of 1995 and 2003 refer to “bad weather,
[when] the island is hit by winds from everywhere,... storms” 161, “strong marine winds [which]
162
blow incessantly” and also a temperature of the soil up to 50º-60ºC during summer : “[i]n the
163
summer the sun is merciless, while in the winter a piercing wind blows...” . In two words,
according to another Ukrainian press article, “extreme conditions” 164. A Ukrainian article of
February 2008 (tab VI-17 in your folders) descr ibes the “adventures” of a temporary “inhabitant”
of the Island, and the quotation is quite serious: “during storms, the toilets [on Serpents’ Island]
are dangerous. ‘Recently, being next to one of them, I was almost pushed by the wind into the sea
165
and I saved myself only by grabbing firmly the handle of the door.’”.
(4)Serpents’ Island has no resources of any kind and it can sustain no economic life of its own
45. Madam President and Members of the Court, my fourth point is that the Island cannot
support and, in fact, has no economic life of its own. Indeed, it cannot sustain any economic
activities, as it has no resources of any kind and is incapable of producing anything at all.
46. Its tiny size, the rocky infertile ground of Serpents’ Island, the lack of fresh water and its
hostile climate represent an insurmountable barrier for agriculture on any scale, in the absence of
which human survival is impossible without constant supplies from outside. In these
circumstances, cultivation for commercial purposes, so as to produce some economic life, is
unthinkable. For instance, a source of 1940 states that because of the “barren rocks all over the
160
MR, Ann. 43. See also MR, p. 159, para. 10.38.
161Ibid., Ann. 56. See also MR, p. 170, para. 10.69.
162Ibid., Ann. 56. See also MR, p. 170, para. 10.70.
163Ibid., Ann. 57. See also MR, p. 170, para. 10.71.
164
Ibid., Ann. 52.
165
Article “Houses and sauna for the inhabitants of Serpents’ Island”, author Aleksandr Sibirtzev, the Ukrainian
newspaper Segodnia, 25 February 2008, http://www.segodnya.ua/news/903291.html, judges’ folder, tab VI-17. - 68 -
place” and the absence of soil, “man can cu ltivate nothing on this ingrate land” 166. As stated in
167
Annex57 of the Ukrainian Counter-Memorial, “the island is improper to any agriculture” .
There are no other natural resources, which make s economic life impossible, and this is also
acknowledged by Ukraine: according to another an nex to the Counter-Memorial, the arid rocks
and stones of the island, though “abundant in quantity”, are “absolutely unsuitable” even for
construction purposes 168.
47. Because Serpents’ Island can produce nothing, all supplies are brought from the
mainland ⎯ with considerable difficulty ⎯ for those few who are obliged to stay there to maintain
the lighthouse and guard the border. There is an abundance of evidence for this situation in the
written pleadings of both Parties 169 and in the Ukrainian media 170. For instance, an official Russian
document of 1903 witnesses the dependence of Serpents’ Island upon the mainland: “foodstuff for
those [lighthouse keepers] is delivered from Sulin a”. A Romanian document of 1938 reports that
“supplies are very hard to get, because of the ve ry difficult transportation, while fishing is very
171
hard in the proximity of the island” . Another Romanian source of 1943 reads that Serpents’
Island “sits as deserted as it was at the time of Her odotus’s trips. At various, rather long periods of
time, a small ship brings the necessary supplies to the lighthouse keeper, to the patrols taking care
172
of the light . . .” .
48. It is the same in our times. A 2002 Uk rainian article reads that the few transports
between the Island and mainland ar e done by helicopter which “secures . . . only a minimum of all
173
that is needed” . A Ukrainian newspaper tells us in 2003 that “[b]ecause of the bad weather and
storms, all supplies, including potable water, ar e brought from the continent to last for several
months” 174. A 2006 article published in the same Ukrainian newspaper reports that “as climate
16MR, Ann. 46.
16CMU, Ann. 63; RR, Ann. 16. See also RR, p. 178, para. 5.153.
168
Ibid., Ann. 57. See also RR, p. 184, para. 5.176.
169
MR, Anns. 40, 43, 45, 49, 62; CMU, Anns. 5, 12, 66, 96.
170
See MR, Anns. 50, 51, 65, RR, Ann. 15.
17MR, Ann. 40.
17Ibid., Ann. 43.
17Ibid., Ann. 65.
174
Ibid., Ann. 51. - 69 -
dictates its own conditions... there are pe rmanent deposits of supplies for 3-4 months” 175. The
same situation was re ported in June 2008 ⎯ that is only two months ago ⎯ when a Ukrainian
press agency wrote (it is tab VI-11 in your folders) that “supplying with all that is necessary,
including potable water, is done by helicopter and by sea” 176.
177
49. In the absence of external suppli es, life is impossible on Serpents’ Island . A French
traveller who published his travels in 1876 tells about the survivors of a Turkish crew, shipwrecked
on Serpents’ Island after a terrible storm, who “ended by eating one another” due to the lack of
supplies on the Island, called by him a “desolated place”. Of the 25 shipwrecked, only four
178
survived, “when the arrival of a ship saved them from hopelessness and a certain death” .
50. Due to its isolated position, the dangerous rocks in the surroundi ng waters and its rough
climate, Serpents’ Island always was ⎯ and still is ⎯ almost inaccessible 179 or, as a Ukrainian
180
article reads, “a remote, difficult to reach spot” , either by sea or by air.
51. Indeed, according to a 200 2 Ukrainian article, “[i]n case of a more or less serious storm
the ships cannot remain near the shore” 181. Another 2002 article states that, “the island... is
currently inaccessible from the sea. The rocky vertical shores and the underwater rocks do not
permit the maintaining of regular links with the continent. The main means of transportation to the
island . . . currently remains the helicopter” 182but these flights are rare 183 and dangerous. Another
article from 2004 reads that the “access to the is land is very difficult. . . . An unimpeded
184
communication with Serpents’ Island remains only a project” , which is confirmed by another
175
RR, Ann. 15. See also RR, p. 183, para. 5.172.
17News item titled “The Regional Council established the limits of the settlement of Serpents’ Island”, the
Ukrainian Press Agency Reporter, 6 June 2008, http://www.reporter.com.ua/cgi-bin/view_material.pl?mt_id=33071,
judges’ folder, tab VI-11.
177
See, for instance, CMU, Ann. 52. See also RR, p. 176, para. 5.149.
178
MR, Ann. 55.
17Ibid., Anns. 38, 39, 40, 43, 45, 46, 47;CMU, Anns. 12, 13, 14, 50. See al so RR, p.176, para.5.148; RR,
pp. 181-182, paras. 5.164-5.166.
18MR, Ann. 57.
18Ibid., Ann. 33.
18Ibid., Ann. 64.
183
Ibid., Ann. 51.
184
Ibid., Ann. 66. - 70 -
piece of news of 2007, showing that “(a) problem of priority importance still is the transport
185
connection” .
52. Despite Ukraine’s efforts to build a berth there, the results proved to be unsatisfactory in
186
terms of safe access to Serpents’ Island, due to its natural features ; and the situation was still the
same in November 2007 when Ukraine’s President asked that the “local moorage” issue be
solved 187. According to the official website of the President of Ukraine, “he
thinks it is
important... to ensure that its residents can travel to the continental part of the country
188
regularly” . I note that even the official press release avoids using the word “population”, as the
so-called “residents” ⎯ some border guards, lighthouse keepers, scientists, isolated on this remote
place for short periods ⎯ do not represent a population.
53. Madam President and Members of the Court, a place which cannot sustain human life
cannot have an economic life, because the economy is a social phenomenon, intrinsically linked
with human life. The smallness of the island, its remoteness and isolation, the great difficulty of
access to it, either by sea or by air, its arid and hostile climate, the fact that it produces nothing, its
lack of any kind of resources, the fact that all supplies, including food and water, must be brought
189
with considerable difficulty from the mainland ⎯ all these are well documented . They cannot
be changed by the recent attempts by Ukraine to cr eate another, artificial, “reality”, as I will show
in my speech tomorrow. These natural characteristics of Serpents’ Island are enough to exclude
a priori any possibility that it can sustain economic life of its own even at the most basic level.
54. Faced with this unmistakeable fact, Ukraine is reduced to the unsupported assertion that
190
“Serpents’ Island is fully capable of having an economic life of its own” . But in its Rejoinder,
185News item titled “The inhabitants of Serpents’ Island do not live an easy life”, the Ukrainian Press Agency
Podrobnosti, 30 August 2007, http://www.podrobnosti.ua/podrobnosti/2007/08/30/452743.html, judges’ folder, tab VI-8.
186CMU, Ann, 5. See also RR, p. 181, para. 5.163.
187Press Communiqué “President wants to develop Zmiynyy” (in English in the original), official website of the
President of Ukraine, 6 November 2007, http://www.president.gov.ua/en/news/8061.html, judges’ folder, tab VI-18.
188Press Communiqué “President visits Z miynyy Island” (in English in the or iginal), official website of the
President of Ukraine, 6 November 2007, http://www.president.gov.ua/en/news/8057.html, judges’ folder, tab VI-19.
189See, for example, MR, pp.173-179, paras.10.80-10. 100; RR, pp.156-160, paras.5.80-5.93 and pp.181-187,
paras. 5.162-5.184; CMU, Anns. 5, 9, 12, 13, 14, 57, 67, 68, 74, 84, 87, 88, 95, 96.
190
RU, p. 116, para. 6.69. - 71 -
there is no single document or piece of evidence in support of this assertion. That being so, there
is, quite simply, nothing for me to respond to.
Conclusions
55. Madam President, Members of the Court, according to the data and indeed the abundance
of evidence displayed, it is as clear as may be that Serpents’ Island is incapable of sustaining any
human habitation or economic life of its own because:
⎯ first, it is a very small rocky feature in the Black Sea, insignificant in the context of the
geography of the area; it is not integrated with the coast, it is secluded, access to it being very
difficult;
⎯ second, it never had and does not now have a population, and it is incapable of sustaining one;
⎯ third, it is devoid of soil, of vegetation, of anim als, of water, it has a very rough, unbearable
climate;
⎯ fourth, it has no resources and is incapable of pr oducing anything at all; and is thus incapable
of sustaining any economic activities.
56. Madam President, that concludes my presentation and, with your permission, the
pleadings of Romania today. I am grateful to the Court for its attention and patience. Thank you.
The PRESIDENT: Thank you, Dr. Aurescu . The Court now rises and will resume
tomorrow morning at 10 o’clock.
The Court rose at 12.50 p.m.
___________
Audience publique tenue le mercredi 3 septembre 2008, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président, en l'affaire relative à la Délimitation maritime en mer Noire (Roumanie c. Ukraine)