Audience publique tenue le jeudi 11 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 (Roum

Document Number
132-20080911-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2008/28
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2008/28

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2008

Public sitting

held on Thursday 11 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 jeudi 11 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 now open for the continuation of the first

round of pleadings of Ukraine and Sir Michael you are to continue your submissions.

Sir Michael WOOD: Thank you very much, Madam President.

VI. A BSENCE OF A PRE -EXISTING ALL -PURPOSE MARITIME BOUNDARY
AROUND S ERPENTS ’ ISLAND
(CONTINUED )

1. Madam President, Members of the Court, yesterday, I was explaining why Romania’s

thesis of a pre-existing agreement on an all-pur pose maritime boundary around Serpents’ Island is

unconvincing. Romania has not discharged the burden upo n it, if it is to substantiate its claim that,

already in 1949, the Soviet Union and Romania had agreed on such a boundary.

2. I covered yesterday Romania’s misreading of the text of the 1949 procès-verbaux, and

also its unconvincing speculation about the intentions of the negotiators in 1949, which completely

ignored the state of international law of the sea at that time.

3. Today, after some words about subsequent agreements, I will consider Romania’s reliance

upon “map evidence”. Then, at the end, I shall list briefly the inconsistencies between its thesis

and recent agreements entered into by the Parti es and in particular those of 1997 and 2003, and

with their activities or, rather, in the case of Romania, lack of activities in the relevant area.

(iii) Reference to sketches, charts and subsequent agreements

Instruments of 1954, 1961, 1963 and 1974

4. Madam President, Romania originally re lied upon certain subsequent agreements to

“confirm” the agreement which it claims to fi nd in the 1949 procès-verbaux; these are the

agreements of 1954, 1961, 1963 and 1974. The Parties now seem to be in agreement that these

1
change nothing .

5. The Act of 1954, and the procès-verbaux of 1963 and 1974, merely effected technical

adjustments of certain border marks. The Treaty on the Border Régime of 1961, updated and

CR 2008/19, p. 34, para. 39 (Crawford). - 11 -

replaced the Treaty on the Border Régime of 1949. Article1 simply confirmed the State border

agreed in 1949.

6. This is perhaps the moment to mention Romania’s argument, first raised in the Memorial , 2

that the procès-verbaux–– and also the 1997 Exch ange of Letters–– are “agreements in force

between the States concerned”, within the meani ng of Article74, paragraph4, and Article83,

paragraph4, of the Convention on the Law of th e Sea, so that “questions relating to the

delimitation of the continental shelf [or the EEZ] shall be determined in accordance with” their

provisions. Last Tuesday, ProfessorPellet confessed that he had difficulty seeing the interest in

this debate 3–– “cette querelle”. I respectfully agree.

7. The purpose of paragraph 4 of Articles 74 and 83 may not be immediately apparent. The

paragraphs were, I think, intended to be savi ng provisions, having regard to Article311 of the

Convention, which concerns the relations of the Convention to other agreements. But, in any

event, as regards the procès-verbaux of 1949, and subsequent agreements dealing with the State

border, the argument in Romania’s written pleadings falls at the first hurdle. These instruments

simply do not deal with any question relating to the delimitation of the continental shelf or the

EEZ. There is nothing upon which the provisions in question could bite 4. As regards the 1997

Exchange of Letters, as ProfessorQuéneudec explained, once the negotiations had failed, all that

the Exchange of Letters provides is that the question of delimitation of the continental shelf and the

EEZs shall be referred to this Court.

Sketches and maps: general consideration

8. I turn now to the question of maps. Romania has sought to bolster its assertion of a

pre-existing agreed boundary deriving from the 1949 agreements, by reference to a whole series of

sketches and charts of varying dates, quality and origin.

9. The Court’s case law gives useful guidance on the weight, or lack of weight, to be

attached to map evidence. We set out, in th e Counter-Memorial, paragraphs54 to 56 of the

Chamber’s Judgment in Burkino Faso/Mali (Frontier Dispute (Burkina Faso/Republic of Mali) ,

2RM, paras. 7.5-7.6.
3
CR 2008/18, p. 44, para. 29 (Pellet).
4CMU, paras. 5.98-5.102, and paras. 6.23-6.26. - 12 -

I.C.J. Reports 1986 , pp.582-583 (cited at CMU, para. 5.129)). For convenience, we have

reproduced the key paragraphs at tab 48.

10. The Chamber’s decision in Burkina Faso/Mali is widely acknowledged to be a classic

statement on the weight to be given to maps. You referred to it recently in Nicaragua v. Honduras

(Territorial and Maritime Dispute between Ni caragua and Honduras in the Caribbean Sea

(Nicaragua v. Honduras), Judgment of 8October2007, paras.209-219) . In Burkina Faso/Mali,

the Chamber referred to the “considerable degree of caution” with which maps have traditionally

been treated in judicial decisions ( I.C.J. Reports 1986, p.583, para.56). I shall quote just three

sentences from paragraph54 of the Judgment, in which the Chamber was confining itself to

principle. It said, “Whether in frontier delimitations or in international territorial conflicts, maps

merely constitute information which varies in a ccuracy from case to case. ” The Chamber then

referred to maps which “fall into the category of physical expressions of the will of the State or

States concerned”, such as “when maps are annexed to an official text of which they form an

integral part”. It continued, in the last senten ce of paragraph54: “Except in this clearly defined

case, maps are only extrinsic evid ence of varying reliability or unreliability which may be used,

along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.” As

the Chamber said at paragraph56, “maps can.. . have no greater legal value than that of

corroborative evidence endorsing a conclusion at which a court has arrived by other means

unconnected with the maps” (ibid., p. 583).

11. Madam President, this caution was equally apparent in Nicaragua v. Honduras. Here

you were concerned with the evidential value of maps in confirming sovereignty over certain

islands (Territorial and Maritime Dispute between Ni caragua and Honduras in the Caribbean Sea

(Nicaragua v. Honduras), Judgment of 8 October2007, paras.209-219). None of the maps was

“part of a legal instrument in force nor more specifically part of a boundary treaty concluded

between Nicaragua and Honduras” ( ibid., para. 218). You concluded that you could “derive little

of legal significance from the official maps submitted and the maps of geographical institutions

cited” (ibid., para. 217).

I12. Malaysia/Singapore, you were referred to nearly 100 maps. This was, again, in the

context of territorial sovereignty, not maritime boundaries –– the two are very different, especially - 13 -

as regards the accuracy to be expected of their depiction on maps. The parties in

Malaysia/Singapore agreed “that none of the maps establish title in the way, for instance, that a

map attached to a boundary delimitation agreement may” ( Sovereignty over Pedra Branca/Pulau

Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) , Judgment of 23May 2008,

para.267). You nevertheless attached some si gnificance to six of the maps, published between

1962 and 1975, which contained annotations that the Court held to be “clear” and to “support

Singapore’s position” ( ibid., para.271). The Court thus regard ed them as an indication that

Singapore had sovereignty over Pe dra Branca/Pulau Batu Puteh ( ibid., para.275). Having said

that, it would seem that the maps, relied upon in co nnection with territorial sovereignty, played

only a secondary role 5.

13. For present purposes, I would suggest that two conclusions may be drawn from

Malaysia/Singapore. First, the Court reaffirmed the a ll-important distinction between maps

annexed to boundary agreements, a nd other maps. The latter may ha ve only a confirmatory role;

they may confirm a result reached upon the basis of other evidence. Second, the six maps which

were considered of some significance, were considered significant because they contained

annotations which the Court held to be “clear” as regards Singapore’s sovereignty over Pedra

Branca Pulau Batu Puteh. That is all far rem oved from the charts upon which Romania seeks to

rely in the present case. They do not concern sovereignty over land territory. Most of them were

not published officially by the Soviet Union or Ukraine. And those that were do not contain

similarly “clear” annotations.

14. Madam President, I now turn to the vari ous sketches, maps and charts relied upon by

Romania. None, in our submission, gets near to establishing what is now asserted, that in 1949

Romania and the Soviet Union agreed on a maritime boundary extending beyond their respective

(or in the case of Romania, prospective) 12-mile territorial seas, thus allocating maritime zones not

then claimed or even under consideration for claim by the Parties.

15. In accordance with your case law, I shall first look at those maps or sketches which are in

some way related to the 1949 Agreements. Here th ree sets of maps or sketches are at issue:

5They are referred to, and briefly at that, in one of the separate and dissenting opinions, that of

Judge ad hoc Dugard (ibid., para. 24). - 14 -

map 134 itself ⎯ which you have already seen ⎯; the sketches included in the procès-verbaux of

the individual border marks 1438 and 1439; and plates I and V.

Map 134

16. First, then, there is the map (Karta) referred to in the general procès-verbal and annexed

thereto. That is map 134 [put map 134 on screen]. It is now on the screen and it was at tab 15 of

your folders for Tuesday. Map 134, in so far as it was intended to indicate the State border beyond

point 1439, shows the approximate point where that border would end when, as anticipated,

Romania extended its territorial sea to 12 miles.

17. It will be seen that the border runs along the outer limit of Ukraine’s territorial sea

around Serpents’ Island, which is depicted on map 134, and stops at a point whose co-ordinates are

approximately 30° 02' 18" E, 45° 5' 25" N.

18. I think it is common ground between the Parties that map 134 is one of the maps referred

to at point 1 in the list at the end of Volume III of the general procès-verbal. That list is headed

“The following documents are attached to this Prot ocol”, and point 1 reads: “Maps of the state

border between the USSR and the RPR at a scale of 1:25,000”.

19. While, unlike the other maps, including map 133, the scale of map134 is in fact

1:150,000, this is explicable because it covers a maritime area and did not need to be on the same

scale as the land maps. But it is not, as I have said, disputed that map134 is among the maps

referred to under the heading in the Protocol.

20. The main heading at the top of map 134, Russian to the left and Romanian to the right,

reads “maps of the State Border [ ⎯ State Border ⎯ ] between the USSR and the People’s

Republic of Romania”. That, I would suppose, appears on all the other maps as well. Between the

Russian and the Romanian headings, there is anothe r, smaller heading reading (in both languages):

“Border Marks from No. 1438 to No. 1439”. Prof essor Crawford rather conflated these two

separate headings when he said, last week, that the map is entitled “map of the State Border

between the Union of Soviet Socialist Republics and the People’s Republic of Romania from

border signs No.1438 to No. 1439” , and concluded from this that the purpose was only to depict - 15 -

“the boundary between those two border signs and nothing else” . The primary purpose of the map

was to depict the location of the two border posts. But it also showed the State border.

21. As we have pointed out in the written pl eadings, whereas the depiction of the mainland

continues right to the lower edge of the map, the map depicts the State border at sea, the final point

of which stops short of the bottom of the map. There is no indication that the State border was

intended to continue any further along the outer limit of the territorial sea. There is no such

indication, either in words, or by an arrow pointing in the desired direction, or in any other way. In

short, map134 depicts a border which ends only a short distance along the outer limit of the

territorial sea around Serpents’ Island.

22. Romania has suggested that, if significance had been attached to the final point depicted

on map 134, the Parties would not have hesitated to describe with precision that one last point. The

same applies, of course, to the failure of the Parties to describe with precision ⎯ or even to

mention ⎯ anywhere in the documentation a final point such as Romania’s “point X”. But it is not

difficult to see why the Parties did not, in 1949, specify precise co-ordinates of the final point

foreshadowed in map134. The Parties were seeki ng to establish the State border. The “State

border” would only go as far out to sea as the point at which the outer limit of the Soviet Union’s

12-mile territorial sea intersected with the outer lim it of Romania’s prospective 12-mile territorial

sea, which happened shortly afte rwards. Pending the establishment of Romania’s 12-mile

territorial sea, it was not possible to give precise co-ordinates for the point of intersection ⎯

although its approximate location could be ⎯ and was ⎯ indicated on the map.

23. I will not deal with all of Romania’s attemp ts to explain away the fact that the agreed

border line on map134 ends a short distance round the outer limit of Ukra ine’s territorial sea

7
around Serpents’ Island. We have answered them point by point in the Counter-Memorial .

24. It is a fact that the border line does stop short of the edge of the map, whereas the

relevant mainland coast continues to the edge of the map. The line stops where it does. Romania

has pointed to nothing to suggest that it was nevertheless intended to continue further.

6
CR 2008/19, p. 30, para. 26.
7CMU, paras. 3.25-3.48. - 16 -

25. Romania says that “in any case, such a conclusion [i.e., that the endpoint of the map’s

line was the final point of the agreed boundary] woul d be inconsistent with the clear terms of the

instrument to which it was annexed”. But there are no “clear terms” in the 1949 general

procès-verbal which say anything about the final point of the State border being at “point X”.

26. Next, Romania argues that, because map 134 does not depict all the mainland features in

any detail, even though there was ample room to do so, no weight should attach to the gap between

8
the end of the boundary line as depicted and the edge of the map . This argument ignores the fact

that the purpose of the map was to depict the loca tion of the State border marks. It was a State

border map. It showed the agreed State border, along with such other detail as was relevant.

27. A comparison of three depictions of the State border line along the outer limit of the

territorial sea around Serpents’ Island is very re vealing [show on screen]. They are now on the

screen ⎯ and they are also at tab49. They are [poi nt to them] first, the distance along the outer

limit of the territorial sea depicted on map134; second, the equivalent distance depicted on the

chart submitted by Romania in 1997 when notifyi ng its straight baselines to the United Nations,

and third, the equivalent distance to pointF. They are similar. The two later depictions are

expressly related to the outer limit of Romania’s territorial sea. It seems clear that, with due

allowance being made for uncertainties surroundi ng the precise extent of Romania’s 12-mile

territorial sea in 1949, and the extension of th e Sulina dyke, map 134 was intended to foreshadow

the same point.

9
28. ProfessorCrawford addressed map134 at some length last week . He even suggested

that “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” 10. This is not so, far from it, as I have already set out our main submission on the

issue, that Romania has failed to meet the burden that rests upon it if it is to show the existence of

an agreed all-purpose line.

8
RR, para. 4.57.
9
CR 2008/19, pp. 30-31, paras. 26-30.
10Ibid., p. 31, para. 29. - 17 -

29. In response to our point that the border around the outer limit in map134 ends

approximately where pointF now is, ProfessorCrawford pointed to the fact that the depiction on

the same map of the State border to the west of point1438 is not shown as going all the way to

point 1437, notwithstanding that there is undoubt edly a border between points 1438 and 1437. He

said that it would be absurd to suggest that the absence of the depiction of a border line there means

11
that the border to the west only extends as far as is shown in map 134 . Indeed it would be absurd.

The border between points 1437 and 1438 is shown on a different map. It is shown on map 133. It

was obviously not necessary to show on our map the border all the way back to 1437.

[Remove from screen]

Sketches in the PVs

30. Next, I would invite the Members of the Court to look at the sketches included in the

individual procès-verbaux for border marks Nos. 1438 and 1439 (these are at tab 50 in the folders).

And I can deal with them very briefly. Professo rCrawford drew attention to them last week,

inviting you to conclude that “[w]hat map 134 and the sketches together sh ow is an interstate

12
boundary going around the 12-mile arc and not st opping at any defined or stipulated point” . As

we explained in the written pleadings, the sket ches in the individual procès-verbaux, whose

purpose was simply to describe the position of the bo rder marks, are pretty unreliable for any other

purpose. We certainly would not follow Prof essorCrawford’s argument that the carefully

13
constructed map 134 should, as he put it, “be treated as subordinate” to these sketches .

Plates I and V

31. Finally, as regards contemporaneous maps or sketches, Romania included in its Reply

plates I and V. These can be found at tab51 in the folders. They are described at “schematic

sketches”. They are on a far smaller scale than map134 and the other maps showing the border

marks. In fact, they are on a scale of 1:1,500,000 and 1:500,000 respectively. They are not among

the maps referred to as “documents... attached to this Protocol” in the general procès-verbal.

1Ibid., p. 31, para. 30.
12
Ibid., p. 28, para. 19.3.
1Ibid. - 18 -

14
Professor Crawford said that they were “included in the catalogue” . It is not entirely clear what

he meant by this. We were told in the Reply th at they had been “discovered” since the completion

15
of the Memorial . In any event, they are not actually referred to in the text of the procès-verbaux.

32. These two plates are said by Romania to “depict the boundary around” Serpents’ Island.

Quite apart from their dubious status, they do not do so. Both of them, like map 134, only depict a

line going a short way along the outer limit of the territorial sea around the Island. Romania further

asserts that the two plates “clearly depict the boundary on the 12 nautical-mile arc around Serpents’

Island, with areas appertaining to Romania on the other side of the line”. That is simply not the

case. The territorial sea around Serpents’ Island is indeed identifiable on both plates, but neither

includes any indication that the water column or the sea-bed to the south of the outer limit

appertains to Romania.

33. ProfessorCrawford relied heavily on these tw o sketches, in so far as they depict a line

extending somewhat further than that in map 134. We have set out in the Rejoinder a whole raft of

reasons why little weight attaches to these sk etches, and I shall not repeat them here 16. I shall just

mention one. ProfessorCrawford’s response to all the points in the Rejoinder is simply that the

sketches “form part of the catalogue, which itself forms part of the overall delimitation

agreement” 17. But their “inclusion” in a “catalogue” says nothing about their significance. For

that, one has to look at their purpose, and what, if anything, the text of the agreement says about

them. In fact, as we explained in the Rejoinder, ne ither sketch was prepared in order to depict the

border. The purpose of plate I was to show which of the two States was responsible for the

demarcation work in each of eight sectors. The pur pose of plate V was merely to provide a key to

the areas covered by the maps 18.

34. In our submission, the plates are of no va lue in determining how far “along” the outer

limit around Serpents’ Island the State border agreed in 1949 was to extend. The primary map in

14Ibid., p. 31, para. 31.
15
RR, para. 4.65.
16
RU, paras. 3.35-3.37.
17CR 2008/19, p. 32, para. 34.

18RU, para. 3.36 (e). - 19 -

this context, as even Romania appears to accept, is the map ⎯ map134 ⎯ referred to in the

relevant part of the 1949 procès-verbal.

35. In short, Romania has produced no contem poraneous evidence that an agreed maritime

boundary extended as far as its alleged “point X” or indeed any distance beyond point 1439. It is

Romania which has access to and possession of the available material relating to the

1949procès-verbal. It is significant that Roma nia has failed to point to any contemporaneous

evidence that Romania and th e Soviet Union agreed on an all-purpose maritime boundary

extending along the outer limit of the territorial sea “point X”. Even Romania admits that the 1949

procès-verbal depicted the maritime boundary as running, “around the 12-mile arc surrounding

Serpents’ Island to a point undefined, in the te xt, by geographical co-ordinates. Nor did the

subsequent boundary agreements concluded between Romania and the Soviet Union identify this

19
point by geographical coordinates.” The same is true of the individual procès-verbaux for the

border marks, in respect of which Romania admits, “[ i]t is true that the final point of the boundary

following the arc of circle around Serpents’ Island is not specified in any of the procès-verbaux and

20
is not shown on any of the sketch maps” .

Non-contemporaneous maps

36. Madam President, I now turn to the second category of maps, the non-contemporaneous

maps that Romania relies upon, to confirm the result it claims to have reac hed on its interpretation

of the 1949Agreements. None is referred to in the Agreements or even in diplomatic

correspondence between the Parties. In our s ubmission, these non-contemporaneous maps provide

no evidence of what the 1949 general procès-verbal meant. Nor indeed do they establish any

subsequent agreement between the Parties regarding its interpretation.

37. I shall not take you through the maps in Romania’s map atlas one by one. With the

exception of the late filed Soviet map, No. 552, we have set out detailed comments on each of them

21 22
in the Counter-Memorial and the Rejoinder .

1MR, paras. 11.51-11.52.
20
RR, para. 4.43.
2CMU, paras. 5.127-5.215.

2RU, paras. 3.52-3.103. - 20 -

38. I shall, however, make some general points concerning the use of symbols on

navigational charts (“symbology”, as I understand car tographers call it). And then I shall say a

word about one or two of the maps, in particular the newly introduced Soviet map from 1957.

39. It is a feature of some of the maps that they highlight the presence of Serpents’ Island by

what I shall call a “hook” (to use a non-technical term), shown as going varying distances around

the outer limit of the island’s 12-mile territorial sea to the south and east of the island. Romania

appears to attach huge importance to these “hooks” (which are depicted with varying lengths and

symbols), the “hooks” are depicted on some charts (the majority published by third parties or

Romania itself), but not on others ⎯ not, for example, on the currently available British Admiralty

Chart of the area 23 ⎯ Romania seeks to argue that the depiction of these “hooks”, “confirms” that

there already exists an agreed boundary between the Parties deli miting Ukraine’s territorial sea, on

the one hand, and maritime zones appertaining to Romania, on the other. In our submission, the

depiction of a “hook” on some charts does nothing of the sort. Charts are the work of

hydrographers and cartographers, not lawyers or diplomats. Not all hydrographers and

cartographers are necessarily aware of the niceties of current legal disputes, or even of their

existence.

40. The earliest charts that Romania has produced showing a “hook” are the two Soviet

charts from 1957 ⎯ that is some eight years after the 1949Agreements. There may have been

many reasons, in 1957, for including on the charts a clear and visible depiction of the Soviet

Union’s 12-mile territorial sea around Serpents’ Island. Among these reasons, not the least could

have been Soviet security concerns. The charts ar e intended for navigation, by ships of all kinds.

Serpents’ Island is a prominent island in the Black Sea. It belonged to one of the two superpowers,

the Soviet Union. The earliest charts showing a “hook” were produced by the Soviet Union at the

height of the Cold War. Vessels heading north into the Black Sea would surely need to be alerted,

unambiguously, to the fact that the Soviet Un ion had a 12-mile area of territorial sea around

Serpents’ Island, in which innocent passage, as understood at the time by the Soviet Union, not

freedom of navigation, was the rule. The Black Sea was a sensitive area. Serpents’ Island had a

23
Black Sea Romania and Ukraine, Gura Sfîntu Gheorghe to Dnistrov’ski Lyman. - 21 -

significant military presence. I would recall that in 1960, upon ratifying the Territorial Sea

Convention, the Soviet Union declared that it cons idered “that the coastal State has the right to

establish procedures for the authorization of the p assage of foreign warships through its territorial

24
waters” . Romania made a similar declaration. These countries would be particularly sensitive to

foreign State ships, including submarines, which of course are required to navigate on the surface

25
and to show their flag in the territorial sea , coming near their territorial sea. I note that

Romania’s Territorial Sea Decree from 1956 ⎯ we looked at it yesterday ⎯ provides that “foreign

submarine ships in immersion in the territorial waters of the People’s Republic of Romania shall be

followed and destroyed without warning” 26. Clearly the States concerned did not want foreign

vessels entering their territorial seas inadvertently.

41. The 1957 “hooks” reappear on some later char ts. As is the way with maps and charts,

they often simply copy earlier ones. Indeed, I understand that hydrographic offices routinely use

data from other hydrographic offices under formal agre ements. This “copycat effect” is only to be

expected. Those who draw up charts do not start with a blank sheet of paper. They base

themselves on existing charts and data.

42. Romania also draws attention to other symbols used on the various charts it has selected,

issued by various technical services over a longish period. The most one can say about the

proliferation of symbols is that the charts show a considerable de gree of confusion and

inconsistency. Moreover, the use of symbols on ch arts has varied over time, and it varies between

the various issuing authorities, symbols are not always a reliable guide to the real position. The

lack of consistency is compounded by what I have referred to as the “copycat effect”. In my

submission, nothing of significance can be read into the symbols for the purposes of this case.

Certainly the far-reaching conclusions that Romania seeks to draw from them are unjustified.

43. Madam President, Romania relies inter alia upon a small number of Ukrainian charts and

publications. They have even recently submitted to the Court a picture book entitled Lighthouses

of Ukraine, which includes a graphic showing a “hook”. They have tried to make much out of the

2See Multilateral treaties deposited with the Secretary-General of the United Nations.
25
UNCLOS, Art. 20.
2MR, Ann. 81, Art. 8. - 22 -

symbols on one Ukrainian chart in particular, dating from 2001. As for that, I would merely note

that it is a one-off chart. Its purpose, like all the other charts, is to aid navigation, not to show

political borders. For all we know, the cartogra pher may have read too much into the “hooks”

which he found on earlier charts. If so, he was in error. There is no later chart before the Court

with similar markings. In any event, the 2001chart predated the conclusion of the 2003 Border

Treaty, in which the Parties finally agreed on the co-ordinates of pointF; any relevance it might

have has been overtaken.

44. Madam President, it involves a great leap to say that, because certain publications of

technical Ukrainian bodies have, from time to time, included an ambiguous symbol, a “hook”,

Ukraine has made an “admission against interest”. “PointX” simply played no part in the

diplomatic relations of the Parties, and it could not suddenly become a reality because of symbols

placed by cartographers on a few charts. It is important to remember that the essential purpose of

the charts was an aid to navigation or, in some c ases, they were sketches to accompany projects, or

in one case even an illustration in what looks like a “coffee table book”. They were not prepared

for diplomatic purposes, or as an official depiction of State boundaries. In any event, in so far as

some of Ukraine’s charts and publications depict a “hook”, they would all seem to go back to the

Soviet charts of 1957, the likely significance of which I have already discussed. Depiction of a

“hook” on certain sketches and charts can in no way be interpreted as an “admission” by Ukraine

that there was an agreement in 1949 on a pr e-existing all-purpose maritime boundary, as urged by

Romania.

45. I said I would say a word about Soviet map No. 552, since this was admitted late and is

not dealt with in our written pleadings. It dates from 1957. It is the second edition of a Soviet

chart first published in 1951. It is one of the two charts from 1957 to depict the “hook”, the first

maps to do so that have been produced to the Court. Nineteen fifty-seven, as I have said, was some

eight years after the 1949 agreements. Map552 adds nothing significant to Romania’s case. I

would recall, however, that Romania has not submitt ed the original 1951version of this map. In

this connection, you will recall that the other map provided by Romania, from 1957, a Soviet

map— map500— was also a second edition. Ukrain e, however, subsequently located the first

edition, the 1951 edition of that map, which cont ained no “hook”. That first edition was obviously - 23 -

more nearly contemporaneous with the 1949agreements, and in our submission undermined any

value that Romania might seek to attribute to the later 1957 edition. We have not, unfortunately,

succeeded in locating the 1951 version of the late en try, Soviet map 552. But I would respectfully

suggest that, like map500, the value of that 1957map552 as an aid to interpreting the

procès-verbal is zero.

(iv) Inconsistency of Romania’s claim with the Parties’ own actions and recent agreements

46. Madam President, Members of the Court, I now turn to my last point, and this will be

very brief: the inconsistency of Romania’s asser tion of a pre-existing maritime boundary with its

own action, or inaction, and with recent agreements between the Parties.

47. In our submission Romania’s own subseque nt actions, or inactions, confirm that there

was no pre-existing agreement between the Parties on the delimitation of the shelf or EEZ –– and I

shall just list them.

(a) Legislation

48. First, as I mentioned at the outset, Romania’s own legislation confirms that the

1949 agreements did no more than delimit the territorial sea. The Romanian Territorial Sea Decree

of 1956 stated that “the territorial waters of Romania... are delimited in the Black Sea by a line

determined by agreement between [Romania and th e Soviet Union]”. Romania’s EEZ Decree of

1986, as you will recall, on the other hand makes no reference to any EEZ delimitation having been

agreed.

(b) UNCLOS

49. Second, during the Third United Nations Conference on the Law of the Sea in the 1970s

and early 1980s, Romania made prolonged efforts to secure a provision that would have included

Serpents’ Island within the scope of Article 121, paragraph 3, of the Convention. These efforts will

be described by my colleague, Ms Malintoppi. They would have been pointless if there had been a

pre-existing agreement, and are thus incompatible with the position that Romania now adopts. - 24 -

(c) Bilateral negotiations

50. Third, during the negotiations leading to the Exchange of Letters of 1997, setting out the

principles for the negotiation of a delimitation agreement, Romania made no mention of the idea of

a pre-existing agreement between the Parties covering part of the line to be delimited. Indeed, as

we have said, Romania took precisely the opposite position. There is, of course, no hint of any

such pre-existing agreement in the text of the Exchange of Letters itself.

(d) Petroleum and coastguard activities

51. Fourth, the significance of petroleum and coastguard activities in the relevant area will

be dealt with next in a little more detail by MsMalintoppi. It is significant that they give not the

slightest indication that Romania thought there was a pre-existing continental shelf or EEZ

boundary.

Conclusion

52. Madam President, Members of the Court, my conclusion is simple. Romania has not

discharged the heavy burden that it bears if it is to establish that the Parties agreed, in 1949 or

subsequently, on an all-purpose maritime boundary going around the outer limit of Ukraine’s

territorial sea around Serpents’ Is land to “pointX” or “thereabouts”. Romania has not provided

any evidence, let alone compelling evidence, of any such agreement. They could not do so,

because no such agreement exists.

Madam President, Members of the Court, that concludes my presentation. I thank you for

your patience. I would request that you invite Ms Malintoppi to continue our case. Thank you.

The PRESIDENT: Thank you, Sir Michael. We now call Ms Malintoppi.

Ms MALINTOPPI: Thank you, Madam President.

VII. P ETROLEUM AND COASTGUARD ACTIVITIES

I. Introduction

1. Madam President, Members of the Court, it is an honour and a great privilege to appear

again before you and to represent Ukraine in this case. It falls to me this morning to address the

Parties’ arguments relating to their petroleum licensing activities and coastguard operations. - 25 -

2. But before I discuss these activities, some introductory remarks are necessary in light of

the oral arguments introduced by Romania last week.

3. It is important to emphasize that Ukraine does not point to this conduct of the Parties in

order to show the existence of a lin e arising from a tacit agreement or a modus vivendi. For

Ukraine, the significance of this aspect of the case is twofold: first and foremost, as SirMichael

has just mentioned, the Parties’ conduct is funda mentally inconsistent with Romania’s argument

that there was a pre-existing maritime delimitation in the disputed area extending out to “point X”;

and, second, the lack of any comparable operations by Romania in the disputed area at a minimum

is incompatible with the claim that Romania advances in these proceedings.

4. In this context, it is no accident that the notion of effectivités was never mentioned before

in this case by either Party, and at least until Romania’s first round presentation last week. Ukraine

is not relying on its petroleum and coastguard activities as acts à titre de souverain establishing a

de facto line, but as considerations that, in its submis sion, should be taken into account in order to

assess the claims of the Parties in relation to their actual conduct.

5. As to the notion of a critical date, another legal concept borrowed from territorial disputes,

27
this has also been introduced in a novel way during Romania’s first round presentation . It is true

that there had been a passing reference to a critical date in the Reply, but there Romania fixed the

critical date at 1997, at the date of the 1997 Exchange of Letters 28. The date has now been pushed

back to November 1995, from the date of an exch ange of correspondence between the Parties that

took place at that time, but the reasons for this change of heart are not given.

6. This discussion of the critical date is baff ling, not only because the issue is introduced by

Romania so late in the case, but also because the date chosen, 1995, is a date of no particular

significance in the history of this dispute. It wa s not until 1997 that the Parties even agreed on the

principles for the conduct of their negotiations. It is evident that the dispute had not crystallized in

1995, or even in 1997. Even assuming that there was a critical date at all, and that the critical date

would have a role to play in ma ritime delimitation, it is the date of Romania’s Application:

16 September 2004.

27
CR 2008/20, pp. 60-61, paras. 13-15.
28RR, p. 165, para. 5.106. - 26 -

II. Description of the relevant activities

7. With these caveats in mind, I shall now turn to the relevant factual background.

8. Ukraine has shown in its written pleadings that it has been Ukraine, not Romania, which

has awarded licensing rights and conducted surve illance patrols on a regular basis in the area now

29
disputed by Romania .

(a) Oil and gas activities

9. First, the petroleum activities. In orde r to illustrate Ukraine’s licensing of petroleum

activities, notably in respect of the exploration of hydrocarbons, we are projecting on the screen a

map, which is also under tab 52 of the folders, which depicts the limits of the oil and gas licences

granted by Ukraine in relation to the boundary lines claimed in these proceedings.

10. The location of the Ukrainian licences–– the Delphin, Olympiiska and the Gubkina

blocks–– is shown on the map. The licence area of the Delphin block is depicted as a rectangle

straddling Romania’s claim line, and extending into the area of the Parties’ overlapping claims.

Rights to this particular area were awarde d in 1993 under a licence agreement between the

Ukrainian State Committee on Geology and the Utilization of Mineral Resources and a joint

venture between the Crimean State Property Fund and J. P. Kenny, a United Kingdom company 30.

11. The second concession, the Olympiiska block, covering about 120 sq km, was granted to

the Ukrainian company Chornomornaftogaz by the Mi nistry of Ecology and Natural Resources of

Ukraine in 2001 for the exploration of petroleum in an area lying closer to the western limit of

31
Ukraine’s continental shelf . The licence area is depicted as a rectangular block falling entirely

within the area in dispute on the map on the screen.

12. In 2003, the Ministry of Ecology and Natural Resources of Ukraine granted a further

licence to the same Ukrainian company 32. This licence concerned rights in respect of hydrocarbon

resources in the Gubkina block, an area of 456 sq km lying in the northern part of the maritime area

29CMU, Chap. 8, Sect. 2; and RU, Chap. 6, Sect. 4.
30
The licence agreement is reproduced in CMU, Ann. 97.
31The licence is reproduced in CMU, Ann. 98.

32A copy of the licence is reproduced in CMU, Ann. 99. - 27 -

now in dispute, straddling the southern limit of the te rritorial sea of Serpents’ Island. It is depicted

as a narrow rectangle partly straddling Romania’s claim line.

13. The existence of these licences demonstrat es that Ukraine, both before and after the

1997 Exchange of Letters, authorized activities relating to the exploration of oil and gas deposits in

areas of the continental shelf to which Romania lays claim in these proceedings.

14. In sharp contrast to Ukraine’s practice, Romania cannot point to any comparable

conduct. This is striking in light of the argument advanced for the first time in this litigation that

Romania and the Soviet Union had agreed in 1949 that the limit of Ukraine’s sovereign rights over

maritime areas should be restrict ed to a 12-mile arc surrounding Serpents’ Island to “pointX”.

Had such an agreement existed, surely it would have been reflected in Romania’s subsequent

practice in respect of petroleum operations. And yet, Romania’s practice shows nothing of the sort.

15. In fact, Romania has not produced any licensing agreements or other documentation

evidencing the terms of the concessions that it has gr anted in respect of offshore areas in the Black

Sea. However, the firm Petroconsultants published a map in 1998 which shows that the location of

the blocks apparently licensed to both Romanian and international oil companies has no relation to

the line claimed by Romania in these proceedings.

16. We are now projecting on the screen a copy of the Petroconsultants map, which is also at

tab53 (CMU, fig.8.8). The four blocks licensed by Romania are depicted and labelled, running

from north to south: Pelican, or block XII, which is marked as having been licensed to the United

Kingdom oil company Enterprise Oil; Istria , which was licensed to the Romanian State-owned

company Petrom; Midia, or block XV, which was licensed to Enterprise Oil; and Neptun, the

block lying to the south-east, which was licensed to Petrom.

17. If we now project on the screen the sketch-map depicting the limits of both Parties’ oil

33
and gas licences in the area of overlapping claims, which is also under tab 54 , it is apparent that

the line corresponding to the eastern limit of the blocks licensed by Romania up until 1998 bears no

relation to its claim that Romania’s continental shelf lies to the south and east of a 12-mile arc of

territorial sea around Serpents’ Island. In fact, as it is evident from this sketch, the outer limit of

33
CMU, fig. 8.7. - 28 -

the blocks stays well clear of an imaginary 12-mile arc and does not correspond to Romania’s

claim at all.

18. In its Reply, Romania has argued that the concessions depicted on this map “represent

34
only a minor part of the activities performed by Romania in the delimitation area” . Romania

added that “Romanian activities in the area date since the 1960s...” 35 and that “[e]ver since

extended seismic profiles have been carried out in an area whose outer limit coincides almost

36
exactly with the maritime boundary claimed by Romania in the present proceedings” . The

Co-Agent of Romania maintained this position although now he appears to have placed the starting

37
date of Romania’s alleged exploration activities in the 1970s . It is worth mentioning that,

curiously, Romania relies on secondary sources for this information ⎯ the authority cited is a study

published in 2000 by the magazine Marine Geology ⎯ rather than relying on its own records 38.

19. Romania’s statements remain mere assertions as, remarkably, no documentary evidence

of any probative significance has been filed to subs tantiate them. The map projected on the screen

by Romania’s Co-Agent last Friday, which ha d been filed by Romania as figureRR26 of its

Reply, provides a good example. We will show it again on the screen now. The sketch is not dated

and the source is not provided. It is not a paragon of clarity, to say the least, as a number of lines

have been superimposed onto the map, along with symbols representing exploratory wells. It is

unclear when the claim lines and the “well” symbol s were superimposed on this map. There is no

indication whatsoever in the document filed by Romania when the alleged seismic profiles were

carried out, by whom, on whose authority. The Co-Age nt of Romania shed no further light in this

respect last week. He simply stated that these profiles “resulted from intense exploration activities

39
in the 1980s and 1990s” .

20. But to the extent that Romania’s oil and gas activities can be ascertained in the disputed

area on the basis of third party sources, the out er limits of its concession blocks appear to

34RR, p. 255, para. 7.33.
35
RR, p. 256, para. 7.34.
36
RR, p. 256, para. 7.34.
37CR 2008/21, p. 28, para. 30.

38CR 2008/21, p. 28, para. 30.

39CR 2008/21, p. 28, para. 29. - 29 -

40
correspond to what is depicted on the screen, in green, and at tab54 . If it is true, as Romania

contends, but does not prove, that “its conduct regarding oil and gas activities was performed

during a reasonably extended period of time (mor e than 40years) and is characterised by

uniformity, continuity and constancy” 41, the location of Romania’s concession blocks certainly

gives no credence to Romania’s theory that a maritime boundary had been settled in 1949, between

the Soviet Union and Romania, out to “pointX” . Had there actually been such a pre-existing

agreement, such a line ⎯ and the areas lying south of it ⎯ could have been expected to have been

reflected in connection with the outer limit of the concessions. As can be seen from the map on the

screen, that was not the case. This line bears no relation to the line claimed by Romania in these

proceedings.

(b) Coastguard activities

21. I shall now turn to a brief description of the activities of Ukraine’s coastguard in the area

of concern.

22. As discussed in Ukraine’s written pl eadings, on 7 November 1995, the Ukrainian

Ministry of Foreign Affairs informed Romania through diplomatic channels that it was prepared to

negotiate an agreement on the delimitation of the Parties’ continental shelf and exclusive economic

zone. The letter specified that, pending a final determination of the maritime boundary between the

Parties, Ukraine’s exclusive ec onomic zone in the south-western part of the Black Sea was

delimited by a provisional line passing through specific geographical co-ordinates 42. It is clear

from the terms of this letter that Ukraine consider ed that only areas lying to the south and west of

the line defined by those co-ordinates could be in dispute.

43
23. As recalled in the Parties’ pleadings , Romania replied to this letter and rejected the

validity of this provisional line. However, Romani a has not alleged that, in its response, it stated

that Ukraine’s line was invalid because of a previous existing maritime delimitation in the area. On

the contrary, as recalled by Ukrain e’s Agent, Romania’s view was that there was no agreement on

40CMU, fig. 8-7.
41
Ibid., p. 256, para. 7.37.
42Ibid., Ann. 26.

43Ibid., p. 217, para. 8.62 and RR, p. 260, para. 7.41. - 30 -

the delimitation of the continental shelf or excl usive economic zones between the former Soviet

Union and Romania.

24. The provisional line was also communicated to third States. For example, subsequent to

several incidents in which Bulgarian fisherme n were intercepted while fishing illegally in

Ukraine’s EEZ, the Bulgarian Embassy in Kyiv contacted the Ministry of Foreign Affairs of

Ukraine, and Ukraine responded on 19November 2002, confirming that, until an agreement with

Romania was reached, the limit of Ukraine’s EEZ in the south-western part of the Black Sea was

provisionally being limited by the same line 4.

25. The record shows that negotiations with Romania continued subsequently. The record

also shows that Romania neither demonstrated any interest in patrolling the area lying on the

Ukrainian side of this line, nor did it ever object to the fact that the Uk rainian coastguard assumed

the sole responsibility of intercepting illegal fishing vessels and, when possible, escorting them out

of Ukraine’s exclusive economic zone and taking any other appropriate measures.

26. In its written pleadings, Ukraine described several incidents in which the Ukrainian

coastguard intercepted Turkish and Bulgarian fish ing vessels caught illegally fishing in Ukraine’s

EEZ, now claimed by Romania in these proceedi ngs. Documentary evidence of these incidents,

notably diplomatic Notes to the respectiv e Governments, was filed with Ukraine’s

45
Counter-Memorial . Lest there be any doubt regarding the continuous and constant presence of

the Ukrainian coastguard in this ar ea, Ukraine also filed with its Rejoinder statements of several

46
members of the Ukrainian coastguard , which confirm, beyond any doubt, that it has been Ukraine

and not Romania, that has exercised sovereign righ ts in the exclusive economic zone contemplated

by Article 73 of the Law of the Sea Convention.

27. The map now on the screen, and at tab 55, depicts the location of several of the incidents

involving the Ukrainian coastguard and Turkish an d Bulgarian fishing vessels. The number of

incidents represented on this sketch illustrates the vigilance exercised by the Ukrainian coastguard

44
CMU, Ann. 103.
45
Ibid., Anns. 104-110.
4RU, Anns. 13-19. - 31 -

in intercepting third-State vessels caught illegally fishing in these waters ⎯ activities that,

incidentally, were carried out at considerable expense to Ukraine.

28. In contrast, Romania carried out no patrolling of any kind and no Romanian fishing

vessels were detected by Ukraine in this area, not until 28April 2006, when an airplane of the

Ukrainian border service chased off Romanian fishing vessels, triggering a Romanian protest 47.

Again, this protest Note, it should be said, contains no hint of a pre-existing agreed boundary.

29. This sudden and recent interest by Romani a in the area, which only arose well after this

case commenced, does not detract from the fact that , prior to 2006, Romania’s attitude was very

different. Until April 2006, the Ukrainian coastguard had never encountered Romanian vessels in

the course of their interceptions of illegal fishing and, until that date, the Romanian authorities had

in no way opposed Ukraine’s surv eillance operations in maritime areas that Romania now claims

belong to it.

30. The attitude adopted by Romania in 2006 co mes too late to affect the Parties’ legal

positions as they stood when this case was initiated. Romania cannot improve its legal position by

new conduct inconsistent with its earlier behaviour. If anything, this new Romanian conduct

reveals a belated awareness by Romania of the weakness of this aspect of its case and a belated

attempt to improve its position.

III. Legal relevance of these activities

31. I shall now discuss the legal relevance of these activities.

32. The evidence on the record with respect to oil and gas activities ⎯ which, I would recall,

has been submitted only by Ukraine ⎯ demonstrates that, whereas Ukraine, since the granting of

the Delphin concession in 1993, has awarded rights in blocks situated in the area in dispute, this

has not been the case with Romania. On the contrary, Romania, in its licensing practice, appears to

48
have carefully respected the outer line that is now shown on the screen and that is also at tab 54 .

33. Romania’s rebuttal of Ukraine’s arguments hinges primarily on an analysis of the legal

relevance of oil and gas activities according to previous decisions of the Court and arbitral

47
RR, Ann. RR37; RU, p. 127, para. 6.100 and Ann. 12.
48RU, fig. 6.2. - 32 -

49
tribunals, and on the fact that Ukraine’s activities were protested by Romania . Romania also

contends that it refrained from pursuing exploration and exploitation activities in the area because it

50
confined its licences to an area which was not in dispute .

34. As to the first part of Romania’s arguments, Romania relies on the case law for the

proposition that oil concessions can be taken into account in maritime delimitations only if they

demonstrate a consistent behaviour displayed over a period of time and evidencing a tacit

agreement between the parties 51. However, in the present case, as I have just discussed, the

relevance of the Parties’ oil licensing practices ⎯ in particular, the outer limit of Romania’s

blocks ⎯ lies in the fact that it is scarcely consistent with Romania’s claims. The pattern of these

practices is also relevant when it is considered in conjunction with the activities and responsibilities

assumed by the Ukrainian coastguard ⎯ in respect of which Romania did not protest until this case

was initiated.

52
35. As regards Romania’s attempt to mi nimize the relevance of Ukraine’s activities ,

Romania relies in particular on paragraph 4 (f) of the 1997 Exchange of Lette rs. In this paragraph,

the Parties agreed to, in terms, “refrain from exploitation of the mineral resources of the zone

submitted to delimitation, the co-ordinates of whic h shall be established at the beginning of these

negotiations . . .”. However, the co-ordinates of such a delimitation zone were never established as

anticipated in the Exchange of Letters; the pr ovision excludes exploitation of petroleum resources

and has no bearing on exploration; and in any event, a number of the licences which I discussed

earlier (such as the Ukrainian Delphin block, and, according to Ro mania, the Romanian blocks)

were awarded before 1997, therefore before the Ex change of Letters. And the relevance of this

1997 Exchange of Letters is accordingly minimal.

36. With regard to Romania’s argument th at it “consistently objected to Ukraine’s

hydrocarbon activity” 53, these contentions are overstated since Romania’s objections were limited

to just two instances. And in contrast, no objec tions were voiced by Romania in respect of the

49CR 2008/21, pp. 11-15, paras. 4-12 and p. 26, para. 24.
50
CR 2008/21, pp. 29-30, paras. 32-35.
51
RR, p. 248, para. 7.7; CR 2008/21, pp. 16-19, paras. 14-19.
52RR, pp. 248-249, paras. 7.8-7.9.

53RR, pp. 252-255, paras. 7.21-7.31. - 33 -

constant exercise of Ukraine’s sovereign rights in the disputed zone by the Ukrainian coastguard

until 2006.

37. Romania also asserts that it did not carry out any exploration and exploitation activities

in the disputed area out of respect for the “gentle men’s agreement” referred to in Romania’s 1995

54
Note Verbale .

38. But, Madam President, if this self-impos ed abstention corresponds to reality, it seems to

have gone too far because, not only did Romania’s alleged activities not remotely correspond to its

present claim, but they also did not respect the so-called “all-purpose boundary” which Romania

asserts existed since 1949. It is true that caution in granting oil concessions is sometimes exercised

where negotiations are ongoing in the delimitation of the continental shelf and exclusive economic

zones. But, if an area is already delimited, as Romania contends, what is the need for this

“precautionary conduct” 55?

39. As to the patrolling operations, they have been undertaken exclusively by the Ukrainian

coastguard. The burden of conducting the hazardous and expensive role of surveillance of illegal

fishing in the maritime area now in dispute h as rested solely on Ukraine since 1995. These

activities have been consistent with Ukraine’s rights and duties as a coastal State.

40. Romania argued during its first round presentation that the probative value of the

affidavits of members of the Ukrainian coastguard filed with the Reply should be assessed in light

of the fact that they were prepared for the purpose of these proceedings, that they were not

contemporaneous with the facts to which they a ttest, and they were sworn by Ukrainian State

officials56.

41. However, these statements stand unre butted by any similar evidence provided by

Romania. They are relevant because they prov ide the first-hand views of the people actually

involved in patrolling the area that the waters in question were frequented exclusively by Ukrainian

vessels.

54
CR 2008/21, p. 29, para. 34.
55
CR 2008/21, pp. 29-30, para. 35.
56CR 2008/21, pp. 32-33, paras. 43-44. - 34 -

IV. Conclusion

42. In Ukraine’s submission, Madam President, Members of the Court, the oil and gas

activities and Ukraine’s coastguard operations ⎯ particularly if regarded cumulatively ⎯ are

relevant for a number of reasons.

43. First, they constitute an important element of the conduct of the Parties subsequent to the

1949 agreement that fundamentally undermines Ro mania’s argument that an all-purpose boundary

had been agreed at the time.

44. If Romania’s thesis regarding the import of the 1949 agreement is correct, then its

licensing and coastguard inactivity in areas that it now contends it ha d allegedly long since

acquired sovereign rights over is inexplicable. It is also inexplicable, if one is to believe Romania’s

theory, that none of Romania’s diplomatic corres pondence in the record refers to a pre-agreed

delimitation line. For instance, the 1995 Note by Romania unequivocally stated that: “there is no

Agreement between Romania and Ukraine on the delimitation of maritime spaces in the Black

Sea” 57.

45. Second, these activities are consistent with Ukraine’s delimitation line and deserve to be

taken into account together with the other relevant circumstances ⎯ notably the physical

geography ⎯ in order to achieve an equitable solution. In its Judgment in the North Sea

Continental Shelf cases, the Court stated clearly that “there is no legal limit to the considerations

which States may take account of for the purpose of making sure that they apply equitable

procedures . . .” (North Sea Continental Shelf , Judgment, I.C.J. Reports 1969, p.50, para.93). In

Tunisia/Libya, the Court underscored the importance of applying equitable principles “as part of

international law, and to balance up the various considerations which it regards as relevant in order

to produce an equitable result” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment,

I.C.J. Reports 1982, p. 59, para. 71).

46. Third, Romania has remained silent in the face of Ukraine’s assumption of

responsibilities in respect of surveillance of the dis puted maritime area in order to prevent illegal

fishing. Romania has given no convincing explan ation for its failure to object to Ukraine’s

conduct, its failure to take any coastguard measures itself, or its failure even to offer to co-operate

57
CMU, Ann. 25. - 35 -

with Ukraine in patrolling the waters that it now co nsiders appertain to it. As is evidenced by the

diplomatic Notes filed with Ukraine’s pleadings, Ukraine’s activities were known to the other

Black Sea States, and notably Bulgaria and Turkey.

47. As I said, it is particularly noteworthy that the conduct of the Parties, and notably that of

Romania, confirms that there was no pre-existing agreement delimiting a maritime boundary in the

disputed area as alleged by Romania. In other wo rds, the conduct of the Parties is an additional

aspect of this case which confirms that Romani a’s theory is nothing but a figment of its

imagination.

Madam President, Members of the Court, this leads me to the end of this brief speech.

Perhaps this may be a convenient time to take the coffee break, and then, if I may ask you to call on

Mr. Bundy after the break. Thank you.

The PRESIDENT: Thank you, Ms Malintoppi. The Court will briefly rise now.

The Court adjourned from 11.20 to 11.30 a.m.

The PRESIDENT: Please be seated. Yes, Mr. Bundy.

Mr. BUNDY: Thank you.

VIII.T HE FLAWED NATURE OF ROMANIA S CLAIM LINE

Introduction

1. Madam President, Members of the Court: yesterday morning and again this morning

Sir Michael has explained why Romania’s contention that there is a pre-existing boundary seaward

of “pointF” at this fictional pointX is without merit, and MsMalintoppi, just before the break,

demonstrated how Romania’s claim is inconsistent with the conduct of the Parties. My task this

morning is to address the remainder of Romania’s claim.

2. Now that claim falls into two segments, labelled sector1 and sector2 by Romania. The

first sector is what Romania terms the lateral boundary between the coasts of the Parties that

Romania views as adjacent to each other. This claim line proceeds seaward from “point F” around

Serpents’ Island, leaving a 12-mile arc to the iland corresponding to a territorial sea, and then - 36 -

extends further eastward of the island and eastward of pointX. The second sector of Romania’s

claim assumes a broadly north-south configuration and is described by Romania as an equidistance

line falling between what Romania considers to be the opposite coasts of the Parties in the case.

3. With respect to the first sector of Roma nia’s claim line, Romania has asserted that the

“equitable character” of its historical claim to a maritime boundary around Serpents’ Island “is

confirmed by the fact that, even if no account were taken of the series of agreements said to be

binding on Romania and Ukraine, the solution adopted pursuant to Articles 74 and 83 of the United

Nations Convention on the Law of the Sea would be the same” (MR, para. 11.45).

4. Now that argument is pure wishful thinking. It is self-evident that the equitable character

of an alleged historical boundary cannot be confir med when there is no such historical boundary in

the first place, as Sir Michael has shown.

5. Moreover, as I shall show, Romania’s argument that the application of principles and rules

of international law relating to maritime delimitation produces, mirable dictu, virtually the exact

same line, is advanced at the expense of distor ting the geographic facts and misapplying the law to

the circumstances of this case.

6. The same holds true for the second sector of Romania’s claim line ⎯ its so-called

“opposite coasts” claim line. That claim also is based on a disregard for the relevant circumstances

characterizing the area to be delimited, particular ly the marked disparity that exists between the

lengths of the relevant coasts of the respective Parties.

7. I shall address the deficiencies underlying each of the sectors of Romania’s claim in turn,

starting first with what Romania terms the latera l boundary in the north, and then I will proceed to

Romania’s version of the “opposite” coasts boundary further south.

1. The first sector of Romania’s claim

8. If we turn to the first sector of Romania’ s claim, the most practical way of exposing the

defects in this part of Romania’s case is to use Romania’s own illustrations. The first graphic I

shall be referring to was produced as figure29 to Romania’s Memorial: it now appears on the

screen and is tab 56 in your folders.

[Place fig. 29 of Romania’s Memorial on screen] - 37 -

9. The illustration on the screen shows a convoluted series of lines and alphabetically

labelled points. I shall try to do my best to unrav el this tangled web of constructs and to show why

each element of Romania’s claim in this area is flawed.

10. Starting out in the west off the mainland co asts of the Parties, the only part of this

maritime boundary that has been delimited by the Parties is the State border, including the

territorial sea, from the land boundary and internal wa ters out to point F, the co-ordinates of which

are specifically identified in the 2003 Treaty.

A. Romania’s provisional equidistance line

11. At the same time, the Court will observe that Romania has drawn a straight, dashed line

from its own mainland coast in an easterly directi on: that is being highlighted on the screen now

(tab 56) [point to line with arrow on map]. That line passes about 3 miles south of Serpents’ Island

and then connects up with a series of points labelled Y1, Y, D and T. Romania refers to this as an

“equidistance line between Romanian and Ukra inian adjacent coasts”, and equates it with

Romania’s version of the “provisional equidistance line”.

12. The line as such bears no relation to the course that a properly constructed provisional

equidistance line should follow. Romania’s equidi stance line gives full effect to the Sulina dyke

while at the same time giving no effect to Serpents’ Island which, as I have demonstrated

yesterday, has a baseline. Base points for c onstructing an equidistance line are for Romania

apparently like beauty ⎯ they rest in the eyes of the beholder. This is not a question of “trading

off” Sulina dyke for Serpents’ Island, as Professo rCrawford suggested last week (CR2008/21,

p. 43, para. 23). It is a question of assessing whether it is equitable to give full effect to an artificial

structure while giving no effect to a natura l island for purposes of plotting the provisional

equidistance line.

13. ProfessorCrawford argued that the fact that the dyke is man-made “is neither here nor

there; its use as a base point is in accordance with Article 11 of the Law of the Sea Convention”

dealing with permanent harbour works (CR 2008/21, p. 45, para. 30). Be that as it may, the use of

the baseline on Serpents’ Island to provide base point s is also justified under international law in - 38 -

accordance with Article 5 of the 1982Convention, the provision dealing with normal baselines of

coasts.

14. ProfessorCrawford also referred to the Sharjah/Dubai Award in support of his

proposition that harbour works can be used as ba se points for constructing an equidistance line

(CR 2008/21, p. 45, para. 31). But the facts in that case, Sharjah/Dubai, were very different from

what we have here.

I15. Sharjah/Dubai, both parties had harbour works which the Court of Arbitration took

into account. Each party’s harbour works were 3km in length— horizontally in length— as

opposed to the Sulina dyke, which I showed yest erday, is only 150m across. Dubai’s harbour

works extended 1.5miles, or about 2.4km, out to sea while Sharjah’s harbour works extended

about 0.5miles, or just under 1km, seaward (91 ILR 545, p.662). The Sulina dyke, in contrast,

extends 7.5 km out to sea.

16. Given the existence of harbour works along the coasts of both Dubai and Sharjah, their

effect on the equidistance line in that case was insignificant — you can see that from the map in the

Court of Arbitration’s Award. Closer to the shore, Sharjah’s harbour works caused the line to

deviate very slightly towards Dubai. And further seaward, Dubai’s harbour works caused a similar,

small deflection of the line towards Sharjah. And as the Court of Arbitration noted: “the deflection

of the line from the ‘true’ or ‘s trict’ equidistance line by reason of the effect given to the harbour

works of both Parties is slight and the resulting line is in all respects equitable as between the two

territorial seas” (ibid., p. 663).

17. In contrast, the Court may recall the graphic that I presented on Tuesday, which was also

in tab9 earlier in the folder, showing the dramat ic effect that use of the Sulina dyke has on

Romania’s equidistance line, even without taking into account Serpents’ Island.

[Place comparison slide on screen]

B. Romania’s line to the south and east of Serpents’ Island

18. To the south of Serpents’ Island, Romania does not rely on its own, or indeed on any

other, version of equidistance. Instead, Romania contends that:

“Given the close proximity of Serpen ts’ Island to the adjacent coasts of
Romania and Ukraine, as well its status of a rock falling under the provisions of - 39 -

Article121(3), [of the Convention] it is appropriate to give Serpents’ Island no
weight at all in delimiting the continenta l shelf and exclusive economic zones of

Romania and Ukraine. This means that the only effect for Serpents’ Island is
restricted to a 12 nautical mile semi-enclave.” (MR, para. 11.49.)

19. I shall come back to Romania’s argument that Serpents’ Island is entitled to no more than

a 12-mile territorial sea at the end of my presentation this morning. MsMalintoppi will also be

responding to Romania’s assertion that Serpents’ Isla nd is no more than an Article121(3) rock.

For present purposes, I would simply note that Romani a treats Serpents’ Island as if it exists in a

vacuum divorced from the overall geographic setting characterizing this part of the Black Sea.

20. To the east of Serpents’ Island, Romania’s claim line becomes even more confused.

21. The Court will note from the map on the scr een that Romania’s provisional equidistance

line intersects with the 12-mile territorial sea of Serpents’ Island at a point Romania labels Y1

[arrow on screen pointing to this point]. That point bears no relation, as I have said, to a true

equidistance line. It is based on giving the Sulina dyke a full effect and Serpents’ Island no effect

at all.

22. It is at this juncture that Romania r uns into another embarrassing problem. Romania’s

principal argument is that there is an historical delimitation extending around Serpents’ Island up to

“point X” ⎯ this is a proposition to which Sir Michael has responded. In its Memorial, Romania is

forced to concede that “pointX” is actually a “point undefined, in the text [of the 1949

procès-verbaux], by geographic coordinates” (MR, para.11.51). Romania also admits that, “Nor

did the subsequent boundary agreements concluded between Romania and the Soviet Union

identify this point by geographical coordinates.” (MR, para.11.52.) Nonetheless, that does not

deter Romania from arguing that the maritime boundar y must pass through “point X”, even though

ProfessorCrawford stated the other day, “whether or not point X is located precisely where we

propose, it must be located thereabouts” (CR 2008/21, p. 40, para. 13).

23. A glance at Romania’s map, which I have had placed on the screen, shows that its

“point Y1” ⎯ the point arrived at on the basis of Romania’s equidistance line ⎯ does not coincide

with “point X”: it lies to the south of it. Th is discrepancy in and of itself undermines Romania’s

contention that its provisional equidistance line somehow “confirms” the course of the alleged

historic boundary line. - 40 -

24. Romania is thus faced with the proble m of how to overcome this inconvenient fact ⎯ in

other words, how to link up its “point X” with its version of the equidistance line. And, in trying to

deal with this problem, Romania has embarked on a series of artifices, each of which is more

tendentious than its predecessor. With the Court’ s indulgence, I will review the rather convoluted

process that Romania has adopted in arriving at its line to show why the approach as a whole is

fundamentally misguided.

25. In its written pleadings, Romania referre d to passages from the Court’s Judgment in the

Cameroon v. Nigeria case to justify its approach and ProfessorCrawford also made a similar

reference last Friday (CR2008/21, p.40, para.12) . To facilitate an understanding of Romania’s

argument, you can see on the screen now the relevant map from the Court’s Judgment.

[Sketch-map No. 12 at p. 449 of I.C.J. Reports 2002 in Cameroon v. Nigeria]

26. Romania’s argues that in Cameroon v. Nigeria the Court had to connect up the

delimitation resulting from an historical boundary agreement ⎯ the 1975 Maroua Declaration,

which ended at pointG on the map ⎯ with the starting-point of the equidistance line running to

seaward that was decided by the Court ⎯ point X. This the Court did by connecting points G and

X with a line running due west along an azimuth of 270°. Romania then argues that the Court

should do more or less the same thing here in linking up Romania’s own “point X” with its version

of the equidistance line. Romania contends that “under normal circumstances” this could be done

by drawing a perpendicular between “point X” a nd point Y1, but then curiously Romania does not

actually follow that method.

27. I will return to Romania’s line in a minute, but first it is important to point out why the

situation confronted by the Court in Cameroon v. Nigeria is not at all comparable to the situation

we have here.

28. Unlike the present case, pointG in Cameroon v. Nigeria was a point that had been

identified and specifically agreed by the parties in an international delimitation instrument which

the Court ruled was binding. The agreement in question ⎯ the 1975 Maroua Declaration ⎯

provided that:

“The Two Heads of State of Cameroon and Nigeria agree to extend the
delimitation of the maritime boundary between the two countries from point12 to
point G on the Admiralty Chart No. 3433 annexed to this Declaration.” - 41 -

29. Thus, not only did the 1975 Maroua agreem ent expressly provide that it related to the

delimitation of the maritime boundary out to point G, the co-ordinates of pointG itself were

specified and referred to as such in the agreement. They were also identified and referred to as

such in Court’s dispositif in the case (I.C.J. Reports 2002, p. 456, para. 325 IV. (B)).

30. As Sir Michael has demonstrated, nothing of the kind exists in this case with respect to

Romania’s “point X” in our case. There is no delimitation agreement either between Romania and

the Soviet Union or between Romania and Ukraine beyond pointF. “PointX” is nowhere

mentioned in any instrument and, as Romania its elf has conceded, its co-ordinates are nowhere

defined. There is simply no pre-existing boundary out to “pointX” and no “pointX” at all. It

follows that the methodology adopted by the Court in the Cameroon v. Nigeria case for linking up

points G and X in that case has no role to play in this case.

31. It is also striking that, having set out Cameroon v. Nigeria as the relevant precedent,

Romania then discards the method used by the Court in Cameroon v. Nigeria in favour of yet

another line that it has conjured up out of thin air. For, if we return to Romania’s illustration of its

position [place Romania Memorial fig. 29 back on screen], the Court will observe that Romania’s

claim line does not actually proceed south from “pointX” to pointY1; instead it extends in an

east-south-easterly direction to connect up with ye t another artificially c onstructed point labelled

“point Y” [point to point Y on map].

32. In other words, having first wrongly plotted the provisional equidistance line which gives

full effect to the Sulina dyke and no effect to Serp ents’ Island, Romania then claims more than this

equidistance line ⎯ a claim that includes the triangular-shaped area that is now being highlighted

in red on the map on the screen [arrow pointing to hatched area].

33. The justification Romania uses for this methodology and for its choice of arriving at

point Y is eccentric in the extreme. In Romania’s words:

[Place quote on screen]

“The solution would lead to the allocation to Romania of a maritime area of
about 68 km². This roughly equals the area lost by Romania because of the unjustified

departure from equidistance when delimiting the territorial seas between Romania and
the USSR, a factor which should be kept in mind when considering the overall equity
of the solution adopted.” (MR, para. 11.72.) - 42 -

34. In other words, Romania is claiming an additional slice of continental shelf and exclusive

economic zone to the east of Serpents’ Island, in order to compensate it for areas that Romania

perceives it “lost” when it delimited its territorial sea boundary with the former Soviet Union

in1949. The so-called “lost” area in question is now the area in blue being highlighted on the

screen; it is also at tab 57 [arrow pointing]. This area is labelled by Romania on its own map as

“Maritime area lost by Romania as a consequen ce of the establishment of the 1949 boundary”.

And Romania apparently feels that it is now entitled to some form of compensation for past

agreements it entered into. This was made very clear by Romania’s Agent last week in his opening

presentation, when he discussed at considerable length the so-called “injustices” that Romania

claims it suffered at the hands of the Soviet Union (CR 2008/18, pp. 22-25, paras. 23-31).

35. Quite apart from the fact that Roma nia “lost” no maritime areas in 1949, the

1949Agreement was determined by a valid treaty entered into by two States. Romania has not

invoked any of the grounds of invalidity set out in Part V of the Vienna Convention on the Law of

Treaties. And the 1949 Treaty has been reaffirmed on many occasions ⎯ most recently in 2003.

Romania’s current manner of justifying its claim is really no more than an ill-disguised attempt to

make out a plea for a kind of politically inspired “d istributive justice”. Ukraine pointed this out in

its Counter-Memorial (paras. 4.15-4.19). And as Ukraine also noted, in the Tunisia/Libya case, the

Court firmly rejected the proposition that mariti me delimitation should be based on distributive

justice. As the Court stated with respect to its task–– and I am citi ng from paragraph71 of the

Judgment:

[Place quote on screen]

“It [the Court] is bound to apply equitable principles as part of international law,
and to balance up the various considerations which it regards as relevant in order to
produce an equitable result. While it is clear that no rigid rules exist as to the exact
weight to be attached to each element in the case, this is very far from being an

exercise of discretion or conciliation; nor is it an operation of distributive justice.”
(I.C.J. Reports 1982, p. 60, para. 71.)

36. Following the submission of Ukraine’s Counter-Memorial, Romania came up with yet

another construct to justify its line. Having prev iously admitted that “point X” was never defined

in any agreement between the Parties, Romania advanced a brand new argument in its Reply,

which ProfessorCrawford also ran with last Fr iday. Pursuant to this new argument, Romania - 43 -

contends that “point X actually represents the intersection of the 12 nm arc around Serpents’ Island

with a line drawn from the last point of the Romanian/Soviet land-river boundary on a

perpendicular to the segment closing the Musura Bay” (RR, para.4.97). This new construct is

illustrated in Romania’s Reply at fig. RR21 –– it is now being reproduced on the screen [fig. RR21

on screen]. Professor Crawford asserted that the point where this new construct crosses the 12-mile

arc around Serpents’ Island corresponds to “point X” (CR 2008/21, p. 39, para. 10).

37. Madam President, Members of the Court, once again, our opponents are engaging not

simply in a refashioning of history but also a refashioning of geography.

38. On the historical plane, there is no evidence that the Soviet Union or Romania paid any

attention, or ever referred, to Romania’s perpendicular line when they ag reed their State border

in 1949, or that Ukraine and Romania had in mind any such perpendicular when they entered into

the 1997 and 2003 Agreements. Romania’s pe rpendicular theory is no more than an ex post facto

attempt to justify something that is otherwise completely unsubstantiated ⎯ the location of

“point X”. Let me repeat once more, “point X” h as no basis in fact or law, and it certainly was not

the practical result of constructing any perpendicular line, whether in 1949 or thereafter.

39. Geographically, Romania’s version of the general direction of the coast on the basis of

which its red perpendicular line has been constructed is the product of myopic vision. The red line

you see on the map does not even begin to represent the general direction of the Parties’ coasts in

this area. It lops off part of Ukraine’s coast , it treats the seaward end of the Sulina dyke as if it

alone represents the general direction of Roma nia’s coast, and it does not begin to reflect the

overall general direction of both Parties’ coasts.

40. If lines drawn perpendicular to the genera l direction of the coast were to have any

relevance in this case, such lines would have to be drawn in a way to represent faithfully the actual

geographic orientation of the Parties’ coasts. A properly constructed line, representing the general

direction of the Parties’ coasts in this area, would adopt the course that is now being shown on the

map and which you can also see at tab58 [superpose a new “coastal front” on Romania’s

fig. RR21]. As can be seen, a line drawn perpendicu lar to the coastal façade of both Parties, even

ignoring for the moment the presence of Serpents’ Island, would pass to the south of Romania’s - 44 -

12-mile arc drawn around Serpents’ Island and it would come nowhere near to any of Romania’s

other points, whether labelled “point X”, “Y”, “Y1”, “D” or “T”.

[Place MR fig. 29 back on screen]

41. It is abundantly clear that “pointX” and “pointY” are both a product of Romania’s

imagination and no justification is given by Romania for the location of pointY, other than to

assert that it lies “approximately in the middle” of its equidistance line lying between points Y1

and T.

42. This brings me back to Romania’s version of equidistance, since points Y, D and T on its

line, are all said to be situated on the provisional equidistance line.

[Place MR fig. 28 on screen]

43. The map that now appears on the screen is figure28 to Romania’s Memorial. It is

labelled “The equidistant line between the adjacen t relevant Romanian and Ukrainian coasts”, and

it depicts the base points that control the course of Romania’s equidistance line–– it is also at

tab 59.

44. As the Court will observe, the entire course of this line is controlled by a single base

point situated on Sulina dyke. The distance betw een the land boundary separating the two Parties

and Sulina dyke is very short ⎯ it is no more than about 5 nauticalmiles. Yet this very limited

stretch of coast ⎯ and in fact, just one point not even located on the coast but rather at the tip of a

man-made structure ⎯ dictates the entire course of Romania’s claim line in the first sector out to

sea. In his presentation last Tuesday, Professor Crawford displayed a map (tab IV-3) which labelled

this line as the “Mainland coasts equidistance line”. And I would suggest that it probably should

have been more accurately called the “Sulina d yke equidistance line”, since Romania’s only base

point for constructing the line is situated at the end of the dyke.

45. Several important points stand out from this analysis of the actual coastal geography.

⎯ First, the length of Ukraine’ s relevant coast in this area ⎯ the area which Romania posits as

relevant to its lateral boundary ⎯ is significantly longer than the corresponding length of

Romania’s coast even if Romania’s coast is taken as extending from the land boundary with

Ukraine down to the Sacalin peninsula. - 45 -

⎯ Second, a line drawn perpendicular to the general direction of the Parties’ coasts projects in a

south-east direction as can be seen on the illustration on the screen, not in an easterly direction

as Romania would have the Court believe [add perpendicular line to the coastal front line].

⎯ Third, Romania’s versions of equidistance produces a marked cut-off effect of the projection of

Ukraine’s coastal front north of the land boundary. While Romania’s methodology accords the

very, very short stretch of Romania’s coast around the Sulina dyke a projection due eastwards,

the projection of Ukraine’s much longer coast is amputated despite its greater length.

⎯ Fourth, the cut-off effect produced by Romania’s line is even more pronounced when Serpents’

Island is included in the equation, as it shoul d be. Romania obviously ignores Serpents’ Island

for the course of its equidistance line. But Serpents’ Island forms part of Ukraine’s coastal

geography and it is surely entitled to greater weight than a man-made structure having the

characteristics of Sulina dyke.

46. All of these elements undermine the legitimacy of the first part of Romania’s claim line.

However, there is still a further important point, and an important defect in that line which merits

attention. For not only does Romania’s line encroach upon the extension or projection of Ukraine’s

south-east-facing coast ⎯ the coast just above the land boundary ⎯ it also produces a cut-off

effect on the projection of Ukraine’s south-facing coast lying beyond Odessa.

47. This is the long stretch of coast that Romania has been at pains to suppress throughout

these proceedings. As Ukraine has shown, its sout h-facing coast generates maritime entitlements

throughout the relevant area on a basis that is no less deserving than the entitlements generated by

the other coasts of the Parties. I have previously observed that the 200-nautical-mile entitlements

that this south-facing stretch of Ukraine’s coast gives rise to extend well south of Romania’s claim

line connecting up points X, Y, D and T. Yet that portion of Romania’s claim line connecting those

points runs parallel to the south-facing Ukrainian coast and hence cuts in front of its natural

prolongation, to borrow Professor Lowe’s words.

48. Romania’s failure to take this part of Ukraine’s coast into account once again is telling.

On the one hand, Romania proceeds on the basis that its very short east-facing coast, and the Sulina

dyke, are entitled to a maritime projection extending due east and east of Serpents’ Island. On the - 46 -

other hand, Romania denies the same treatment to Ukraine’s much longer east-facing coast, as well

as to its south-facing coast and Serpents’ Island.

49. Any balanced application of equitable principles must respect the actual geography of the

area being delimited and must give appropriate wei ght to the relevant coasts of the Parties on an

equitable basis. Romania’s claim line fails to do this . It not only fails to take into account the long

stretch of Ukraine’s coast lying between Odessa and Cape Tarkhankut, but it also fails to reflect the

substantial difference in the overall lengths of the Parties’ coasts abutting the area to be delimited.

When it is recalled that Romania’s provisional equidistance line is improperly calculated in the first

place, the failure thereafter of Romania to take any account of the marked differences in the lengths

of the Parties’ relevant coasts and the configur ation of those coasts exacerbates the inequitable

nature of Romania’s claim line.

2. The second sector of Romania’s claim

50. Madam President, Members of the Court, I now turn to the second sector of Romania’s

claim ⎯ I have dealt with the lateral portion and I will deal with the second sector, the part of

Romania’s claim that it characterizes as an “opposite coasts” delimitation. That is the line, as I have

mentioned, that extends south from Romania’s point T and is said to be equidistant between the

opposite coasts of the Parties. And as with Romania’s first sector, this element of its claim also

suffers from numerous shortcomings.

[Place MR fig. 30 on screen]

51. The map on the screen is taken, once again, from Romania’s Memorial and shows how

Romania has plotted the initial part of the second sector of its claim south of pointT. I would

suggest that what is interesting about this figure is the fact that, while the base points on Ukraine’s

coast which control this part of Romania’s line now lie on the other side of the Black Sea ⎯ at

Cape Tarkhankut in Crimea ⎯ on the Romanian side, the line is still controlled by a single base

point situated at the seaward end of the Sulina dyke. Moreover, the presence of Serpents’ Island

continues to be ignored by Romania for equidistance purposes.

52. It is only further south ⎯ as can be seen on the graphic on the screen [fig. 32 to MR on

screen] which is also at tab 60 ⎯ that the Sulina dyke ceases to provide the relevant base points for - 47 -

Romania, and is replaced by a second base point located on the Sacalin peninsula where the

Romanian coast then recedes back sharply to the west. The part of Romania’s claim line controlled

by the single point ⎯ the Sulina dyke ⎯ is highlighted in red on the map that you have in your

folders. South of the Sacalin peninsula, the Ro manian coast does not provide any base points for

Romania’s delimitation line. In fact, most of that part of Romania’s coast actually faces south and

south-east. Yet that does not prevent Romania from considering this entire stretch of coast as a

relevant coast.

53. On the Ukrainian side, Romania identif ies the relevant base points as located at

Cape Tarkhankut and Cape Khersones. Of course, Professor Lowe rightly observes that base points

do not generate maritime zones, the coastline do es (CR2008/21, p.56, para.19). And as he also

noted, “each segment of the relevant coastline must be permitted to generate its own maritime

zones” (CR 2008/21, p. 62, para. 52).

54. The problem is that Romania’s blinkered approach to geography denies to long stretches

of Ukraine’s coast precisely such zones. As I poi nted out yesterday, just as the United States coast

at the back of the Gulf of Maine was deemed by the Chamber to be relevant to the determination of

an equitable delimitation throughout the Gulf and we ll into the Atlantic, so also should the entirety

of Ukraine’s coast be taken into account in th is case with respect to the whole course of the

delimitation line.

55. When it comes to the “opposite coasts” sector of its claim, Romania counts its coast

between the land boundary with Ukraine and the S acalin peninsula as a relevant coast for a second

time. It has already used it for its adjacent coast, but for the opposite coast it also counts this part

of the coast for a second time. But then it adds to this stretch of coast the remainder of Romania’s

coast all the way down to the land boundary with Bulgaria. Ukraine, on the other hand, is limited

to its west-facing coast along the Crimea between Cape Tarkhankut and Cape Khersones, and is

once again not allowed to take into account its own south-facing coast ⎯ parts of which are just as

close to Romania’s claim line as the Romanian coast south of the Sacalin peninsula, as I showed

with a slide in my opening presentation on Tuesday.

56. In Ukraine’s submission, such a self-serving approach to the geographic realities of the

case is at odds with a delimitation based on the application of equitable principles. The proper way - 48 -

of proceeding, both for purposes of plotting the provisional equidistance line and for considering

whether there are any relevant circumstances justifying the shifting of that line, is to compare “like

with like”.

57. If Romania wishes to use the Sulina dyke for equidistance purposes, then at the very least

it should be prepared to accord Serpents’ Island th e same, if not more favourable, treatment. If

Romania wishes to consider its entire coast stretching from Ukraine down to Bulgaria as a relevant

coast for delimitation purposes because, so it claims , that coast generally abuts the area to be

delimited, then it should also be prepared to accep t that all of Ukraine’s coast fronting the same

general area should be similarly treated as a releva nt coast. On the other hand, if Romania wishes

to eliminate all of Ukraine’s south-facing coast from consideration because it is allegedly too far

away or points in the wrong direction, it should also be prepared to eliminate its own coast south of

the Sacalin peninsula. That coast points in a differe nt direction too and I have shown that it is far

away from the claim line as well. And if Romania wishes to rely on its short stretch of coast

between the land boundary with Ukrain e and the Sacalin peninsula twice ⎯ once for its lateral

boundary and a second time for its opposite boundary ⎯ then it should be prepared to accept that

there is a fundamental difference in the overall length of the Parties’ coast justifying a shift of the

provisional equidistance line.

58. Once a balanced approach is adopted, and even leaving to one side for the moment the

conduct of the Parties to which MsMalintoppi has referred earlier, two key factors stand out that

Ukraine considers constitute circumstances which should be given their appropriate weight in

arriving at an equitable solution.

59. The first is the marked disparity that exis ts between the lengths of the relevant coasts of

the Parties that front the area to be delimited. Th at is a geographic fact, and it exists even without

taking into account Serpents’ Is land. Yet neither sector of Romania’s claim line takes this

important circumstance into account.

60. The second is the presence of Serpents’ Island. While this case is not about Serpents’

Island in isolation, as Romania appears to believe is the case, Serpents’ Island is a geographic fact

that forms part of Ukraine’s coastal geography. And it would seem evident that a natural feature - 49 -

such as Serpents’ Island should not be given less e ffect than an artificial structure such as the

Sulina dyke, or a sand spit such as the Sacalin peninsula.

3. The legal entitlement of islands

61. Madam President, Members of the Court, this leads me to the final part of my

presentation in which I would like to address Romani a’s argument that because Serpents’ Island is

a small island, it should be entitled to no more th an a 12-nautical-mile territorial sea, but no

continental shelf or exclusive economic zone.

62. In support of this argument, Romania h as referred both in its written pleadings and in

oral argument last week to a number of judicial precedents and examples of State practice where

small islands have been accorded a reduced effect for maritime delimitation purposes. In some

cases small islands have been acco rded what is commonly known as a “half-effect”. This is what

happened, for example, with respect to the Scilly Isles in the Anglo-French Arbitration, the

Kerkennahs, albeit it was a different kind of half-effect, in the Tunisia/Libya case, and Seal Island,

which was still another version of the half-effect, in the Gulf of Maine case.

63. In other examples cited by Romani a, such as the Channel Islands in the Anglo-French

Arbitration, and the island of Abu Musa in the Sharjah/Dubai arbitration, islands received partial

enclaves.

64. In still other cases, such as in the Libya/Malta with respect to the rock of Filfla which lay

just off the southern coast of Malta, or a very small sand bar named Qitat al-Jaradah that was at

issue in the Qatar v. Bahrain case, very small features have had no effect on the delimitation line.

65. Ukraine is obviously well aware of these pr ecedents. It is also well aware of the

examples of State practice cited in Romania’s written pleadings where small islands have

sometimes been accorded less than full equidi stance treatment. Ukraine addressed all of these

examples cited in Romania’s written pleadings in its Counter-Memorial. And in addition, Ukraine

presented other examples of State practice, of which there are many, where small islands have

received full or substantially full effect; I would respectfully refer the Court to pages48 to64 of

Ukraine’s Counter-Memorial where there is a full discussion of these examples. - 50 -

66. The important point, however, ⎯ and this is a point which Romania’s pleadings have

conspicuously overlooked ⎯ is that each delimitation situation is unique and each case must be

assessed in the light of its own particular geographi c facts and circumstances. To recall what the

Court said in the Tunisia/Libya case: “There can be no doubt that it is virtually impossible to

achieve an equitable solution in any delimitation without taking into account the particular relevant

circumstances of the area.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.

Reports 1982, p. 60, para. 72.)

[Map of north-west corner of Black Sea]

67. Much as Romania would like the Court to believe the contrary, the present case is not

primarily about Serpents’ Island. It concerns de limitation in the entire north-west corner of the

Black Sea. Here, as a glance at any map of the area shows, the factor that really stands out is the

predominant geographical position that Ukraine’s mainland coast possesses. No matter how those

coasts are measured, along their sinuosities, according to their coastal fronts, using the system of

straight baselines both Parties have enacted, Ukra ine’s coast is significantly longer than that of

Romania.

68. Obviously, Serpents’ Island is located with in the area surrounded by these coasts. But it

is only one element of the overall coastal relationship between the Parties.

69. When it comes to plotting the provisional equidistance line, ProfessorPellet has

acknowledged that such a line should be a line, “every point of which is equidistant from the

nearest points on the baseline from which the bread th of the territorial seas of each of the two

States is measured” (CR 2008/20, p. 15, para. 12). That formula is taken verbatim from Article 15

of the Law of the Sea Convention and it is the sa me formula that the Cour t referred to in the

Qatar v. Bahrain and Cameroon v. Nigeria cases.

70. Madam President, Members of the Court, there are not many areas of agreement between

the Parties in this case. But this is certainly one of them ⎯ and it is an important one. Once it is

accepted that Serpents’ Island has a baseline ⎯ as I hope I demonstrated yesterday ⎯ then under

the formula agreed by both Parties, that baseline must provide relevant base points for constructing

the provisional equidistance line. - 51 -

71. That being the case, it is not necessary to rehearse past examples where small islands

have been used for the plotting of a provisiona l equidistance line, as was the case, for example,

with the Scilly Isles in the Anglo-French arbitration, or where small islands have not been used for

that purpose, as in some of the examples cited by Professor Pellet last week. The Parties agree that

the provisional equidistance line should be drawn from the nearest points on the baselines from

which their respective territorial seas are measured.

72. Therefore, the important question is how to assess all of the relevant circumstances

characterizing the area to be delimited for purposes of determining whether they justify a shifting

of the provisional equidistance line. These circumstances include not only Serpents’ Island, but

more importantly, the overall relationship between the Parties’ mainland coasts.

73. Last Thursday, ProfessorPellet discussed a number of cases where islands have been

accorded a reduced effect for delimitation purposes. But, the key point, I would suggest, is that ⎯

perhaps with the exception of the Gulf of Maine case ⎯ none of the examples cited by

Professor Pellet involved an overall geographic situation that is remotely comparable to the present

case.

74. The first case cited by my eminent colleague was Anglo-French (CR2008/20, p.24,

para. 36). But the geographic position of the Channel Islands in that case bears no resemblance to

the location of Serpents’ Island in the present case. The Channel Islands fell on the “wrong side”

so to speak, of a median line that was otherw ise between opposite coasts of the same approximate

length. Here, Serpents’ Island does not fall on the “wrong side” of any median line, and Ukraine’s

mainland coast ⎯ unlike the situation in Anglo-French ⎯ is some four times longer than the

mainland coast of Romania.

T7h5e. Libya/Tunisia case, in which the Kerkannah Islands were accorded a kind of

“half-effect”, also did not involve a geographic situation where the relevant area was circumscribed

by the coasts of parties the length of which were markedly different. There, the Court had no need

to make any adjustment to the line ⎯ in fact, equidistance did not figure in the line at all. It is

listed in our opponent’s folders as an example wher e islands have not been used for a provisional

equidistance line. There was no provisional equidistance line in Libya/Tunisia . The Court never

addressed the point. Moreover, in that case, the C ourt had no need to make any adjustment to the - 52 -

line to take into account a disparity between the lengths of the Parties’ coasts. Here the situation is

very different.

In76. Libya/Malta, Professor Pellet notes that Filfla was given no effect (CR 2008/20, p. 25,

para. 36). That is obviously correct. But Filfla was unquestionably a rock, and disregarding it for

delimitation purposes had a negligible effect on the Court’s adjusted median line. What was

important in that case ⎯ and what justified an adjustment being made to the median line in the first

place ⎯ was the marked difference in the lengths of the parties’ overall relevant coasts. That is

what we have here, a marked difference in the length of the Parties’ relevant coasts. The same

considerations applied in the Jan Mayen case, where the median line was once again adjusted in

favour of the State with the longer coast, and in the Barbados/Trinidad and Tobago arbitration,

where an adjustment was made for the same reason.

T7he. Sharjah/Dubai case cited by Professor Pellet (CR 2008/20, p. 25, para. 36) involved

primarily a delimitation between States with adja cent coasts, on a very smooth coastline. Neither

party in that case had a coast which surrounded the delimitation area on three sides. It too is not

comparable to the geographic facts that are presented in this case.

78. Eritrea/Yemen involved coasts of roughly equivalent length which did not require an

adjustment being made to what was otherwise a mainland-to-mainland equidistance line which did

give full effect to islands on both sides lying close to the mainland. It did not involve a case where

one’s coast surrounded three sides of the area and was markedly longer than the other party’s coast.

And the Nicaragua v. Honduras case also involved a geographic situation which is much different

from the present case, as I hope I illustrated yesterday when I put the no-man’s zone slide on the

map.

79. Counsel then referred to Qatar v. Bahrain where the very small island ⎯ and it was

really just a sand bar ⎯ of Qit’at Jaradah was given no effect for equidistance purposes

(CR 2008/20, p. 25, para. 36). Once again, the geographical context of that case bears no relation

to the present case where we have the coast of one Party surrounding three sides of the area to be

delimited.

80. There is another point about Qatar v. Bahrain that I would like to highlight. The

delimitation line in Qatar v. Bahrain actually fell between Qit’at Jaradah and a low-tide elevation - 53 -

called the FashtadDibal. The Court noted there that the low-water line of a low-tide elevation

falling within the territorial sea of the mainla nd or an island may be used as a baseline for

measuring the breadth of the territorial sea. FashtadDibal met this requirement and thus had a

baseline, despite the fact that it was a low-tide elevation. As I said, the delimitation line decided by

the Court in that case actually fell between Qit’at Jaradah on the one hand and the Fasht ad Dibal

on the other. That is, again, the kind of situation which we do not have in this case.

81. Professor Pellet then referred to the Gulf of Maine case and the Chamber’s treatment of

Seal Island which was accorded a kind of “half-e ffect” (CR2008/20, p.32, para.53). However,

the reduced effect given to Seal Island in that case was only for the purpose of constructing the

closing line across the Gulf, and shifting the lo cation of the point where the delimitation line

intersected that closing line from a ratio of 1.38 to 1 in the United States favour, to a ratio of

1.32 to 1 (I.C.J. Reports 1984, p. 337, para. 222). As the Chamber noted, the practical effect of this

small displacement was, to use the Chamber’s words, “limited” (ibid.).

82. What was much more important in the Gulf of Maine case, as I pointed out yesterday,

was the fact that the Chamber viewed the whole of the coasts along the Gulf of Maine, and even

significant parts of the Bay of Fundy, as relevant coasts, and considered a difference in coastal

lengths in the magnitude of 1.38 to 1 ⎯ which was much less than our 4 to 1 magnitude in this

case ⎯ that difference justified and warranted an important adjustment to be made to the

equidistance line.

4. Conclusions

83. Madam President, Members of the Court, tomorrow ProfessorQuéneudec will be

discussing the relevance and the weighting to be gi ven to these kinds of factors when he addresses

Ukraine’s delimitation line tomorrow.

84. For my part, this morning I hope that I have showed the manner in which both “sectors”

of Romania’s claim line are based on artificial constructs and a selective approach to the

geographic facts. “Point X” is a fictitious point, and Romania’s after-the-fact attempt to justify it

on geometrical grounds is misguided. The rest of Romania’s alphabet soup fares no better.

Romania’s equidistance line is improperly plotted, and its failure to take into account the marked - 54 -

difference that exists between the lengths of the re levant coasts of the Parties, both for the lateral

part of the boundary and for the boundary as a whole, according to Romania, is contrary to the case

precedents.

85. I wish to thank the Court very much fo r its attention, and I would now be grateful,

Madam President, if the floor could be given back to Ms Malintoppi. Thank you.

The PRESIDENT: Thank you, Mr. Bundy. Now we call Ms Malintoppi.

Ms MALINTOPPI: Thank you, Madam President.

IX. ROMANIA ’S IRRELEVANT CIRCUMSTANCES : THE B LACK SEA AS AN ENCLOSED

OR SEMI -ENCLOSED SEA ,DELIMITATION AGREEMENTS THEREIN
AND THE SIGNIFICANCEOF S ERPENTS ’ ISLAND

A. Introduction

1. Madam President, Members of the Court, Romania’s written and oral pleadings emphasize

certain aspects of the maritime delimitation w ith Ukraine that are said to represent the only

“special” circumstances to be taken into account in this case5.

2. In its Memorial, Romania relied on the enclosed nature of the Black Sea and maritime

delimitation agreements concluded therein so far as the only elements which constitute “relevant”,

59
or “special”, circumstances .

3. In its Reply, and in its first round presen tation last week, Romania added Serpents’ Island

to its list of relevant circumstances, and argued that this island should be accorded no more than a

60
12-mile band of territorial sea .

4. Within this context, I shall address first, Romania’s arguments concerning the enclosed or

semi-enclosed nature of the Black Sea; second, the relevance of other delimitation agreements

concluded by Black Sea States for this case; a nd, third, the significance of Serpents’ Island,

including the fact that it is not a “rock” under th e definition provided in Article 121 (3) of the Law

of the Sea Convention.

58
MR, pp. 108-129 and RR, pp. 188-245.
59
MR, pp. 128-129, para. 8.126 (h).
60RR, pp. 188-189, paras. 6.1-6.5; CR 2008/20, pp. 38-39, para. 66 and pp. 39-40, paras. 3-4. - 55 -

B. Romania’s arguments concerning the enclosed or semi-enclosed nature of the Black Sea

5. As for the first point, Romania puts great st ore on the characterization of the Black Sea as

an enclosed or semi-enclosed sea and the im portance of maritime delimitation agreements

previously concluded between certain States bordering the Black Sea as providing the applicable

methodology for delimitation in this present case: unadjusted equidistance, save for a 12-mile arc

around Serpents’ Island.

6. Romania’s arguments find no support in law or in the factual context.

7. Legally, there is no special régime governi ng delimitations taking place in an enclosed or

semi-enclosed sea simply because of its “enclosed” or “semi-enclosed” nature. Part IX of the Law

of the Sea Convention dealing with enclosed or semi-enclosed seas does not provide for a specific

delimitation methodology to be applied with respect to such seas. Article122 ⎯ which has been

reproduced for ease of reference in your folders under tab 61 ⎯ contains the following definition:

“For the purposes of this Convention, ‘enclosed or semi-enclosed sea’ means a
gulf, basin or sea surrounded by two or more States and connected to another sea or

ocean by a narrow outlet or consisting entirel y or primarily of the territorial seas and
exclusive economic zones of two or more coastal States.”

8. In addition to this general definition, Article123 of the Convention— the only other

provision of Part IX ⎯ invites States bordering on an enclosed or semi-enclosed sea to co-operate

with each other in the management and con servation of living resources and the marine

environment. Aside from these provisions, there are no particular rules under the Law of the Sea

Convention governing enclosed and semi-enclosed se as, and there are no specific rules applying to

maritime delimitations taking place in such seas. As a result, delimitations in enclosed, or

semi-enclosed, seas, as far as c ontinental shelf and exclusive economic zones are concerned,

remain governed by Articles 74 and 83 of the Convention — and as we know, these Articles make

no exception for enclosed or semi-enclosed seas.

9. Romania relies on the Tunisia/Libya and Libya/Malta cases as supporting its contention

that enclosed seas are to be considered “special circumstances” in the context of maritime
61
delimitation . However, these cases are of no assistan ce to Romania, because the semi-enclosed

61
MR, p. 70, paras. 6.26-6.28; RR, p. 204, para. 6.48. - 56 -

nature of the Mediterranean Sea ⎯ or, for that matter, pre-existing maritime delimitations in that

area ⎯ played no role in the delimitation methodology adopted by the Court in each of these cases.

In0. Tunisia/Libya, the Court emphasized that the starting-point of any maritime

delimitation is the particular geographical situation ⎯ and notably in terms “the extent and features

of the area found to be relevant in the delimitation” ( Continental Shelf (Tunisia/Libyan Arab

Jamahiriya), Judgment, I.C.J.Reports1982, p.82, para.114). No mention was made in the

Judgment that the semi-enclosed nature of the Mediterranean, or ⎯ for that matter ⎯ the existence

of other delimitation agreements in that sea, were relevant circumstances dictating the method of

delimitation to be employed as between Tunisia and Libya in order to achieve an equitable result.

11. The Court’s decision was in fact based on a combination of geographical and historical

considerations specific to that case, and including the parties’ own conduct. To the extent that the

Court’s Judgment mentioned third States’ interest s at all, it was for quite a different purpose ⎯

namely, in order to limit the area affected by the delimitation in the light of the existing or potential

claims of third States ( Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.

Reports 1982, pp. 91-94, paras. 130, 131 and 133 B.(5) and C.(3)).

12. With respect to Libya/Malta, Romania asserts that, in that case, the semi-enclosed

character of the Mediterranean Sea was “a factor to be taken into account in order to achieve an

equitable result, influencing the scope of the adjustment of the boundary northwards” 62. This is

incorrect, and Romania misconstrues that aspect of the Court’s Judgment on two accounts.

13. First, the focus of the Court’s decision was not on the semi-enclosed nature of the

Mediterranean as such, nor on the existence of a delimitation methodology purportedly adopted by

other States in their bilateral agreements, but, rath er, on the fact that Malta had a short coast facing

the much longer coast of Libya. This was an important relevant circumstance which weighed

heavily on the Court’s decision to adjust the me dian line northwards towards the State with the

shorter coast ⎯ a fact which Romania omits to mention. This is also a crucial aspect of the present

delimitation that should similarly play a key role for purposes of achieving an equitable result.

62
RR, p. 204, para. 6.48. - 57 -

C. The role of existing delimitation agreements in the Black Sea
for purposes of this delimitation

14. I will now move on to discuss the role of existing delimitation agreements in the Black

Sea for purposes of this delimitation.

15. Professor Pellet stated last week that Ro mania’s arguments regarding the semi-enclosed

nature of the Black Sea and the delimitation ag reements concluded so far in this area are

fundamentally linked. His argument was that it is due to the semi-enclosed nature of the Black Sea

that delimitation agreements between other States bordering that sea are important and must be

63
taken into account . Romania’s written pleadings, and Romania’s Co-Agent in his first speech,

had, in fact, taken this reasoning much further.

16. In its Reply, Romania argued that the enclo sed nature of the Black Sea is such a decisive

factor that a new maritime delimitation ⎯ such as the present ⎯ cannot depart from the methods

already used in existing delimitation agreements 64. In other words, Romania treated the existing

maritime delimitation agreements in the Black Sea not only as falling into the category of relevant

circumstances, but also as imposing a particular methodology on the Court. Romania also argued

that, since existing agreements in the Black Sea are allegedly “based on the assumption that the

equidistance line leads to an equitable result” despite disparities in coastal lengths, “a dramatic shift

from equidistance” would bring about inequitable results in our case 65.

17. Last Tuesday, the Co-Agent of Romania went as far as stating that:

“il est nécessaire qu’il existe une consistence entr e les méthodes de délimitation
utilisées – en ce sens que l’utilisation dans les nouvelles délimitations de méthodes

largement différentes de celles déjà utili sées a toutes les chanc es d’abou66r à des
résultats inéquitables et incompatibles avec les délimitations existantes” .

18. In other words, Romania insists that ⎯ in order to reach an equitable result in the present

case ⎯ the Court is bound to apply the methodology employed in the two pre-existing maritime

delimitations in the Black Sea, which are promoted to the rank of a “véritable pratique de

délimitation” 67. We were also told that this “prac tice” might be growing to three agreements,

63CR 2008/20, p. 30, para. 47.
64
RR, pp. 200-201, para. 6.37.
65
RR, p. 205, para. 6.50.
66CR 2008/18, p. 58, para. 33.

67CR 2008/18, p. 55, para. 19. - 58 -

according to Professor Crawford’s announcement last week that the on-going negotiations between

68
Romania and Bulgaria may lead to an agreement adopting a similar method . However, that

agreement is not yet concluded, we are not privy to the contents of what is being negotiated, and

only the future will tell if an agreement will indeed be concluded, and on what basis.

19. Ukraine disagrees with Romania’s conten tions as a matter of law. As Ukraine has

69
already dealt with these arguments in detail in the written pleadings , I shall limit myself only to a

few remarks.

20. In general terms, bilatera l agreements cannot affect the ri ghts of third parties and, as

such, the existing maritime delimitation agreemen ts in the Black Sea cannot influence the present

dispute. Moreover, it would be inappropriate to use the methods employed by third States in their

maritime delimitation agreements as precedents automatically applying to the present delimitation

since there is no information as to the factors that lead to the final result in those cases and we are

not appraised of the political, ec onomic, or other considerations ⎯ or quid pro quos ⎯ that led to

those specific delimitations.

21. The starting-point of any delimitation is based on the particular facts characterizing that

case, especially the coasts abutting the relevant ar ea. Each delimitation agreement has its own

peculiarities, and a particular delimitation technique may be warranted in an individual instance in

order to meet different considerations, which coul d be dictated by the geographical, political and

economic context at hand. Consequently, it is misguided to attribute to the maritime delimitations

previously concluded between third States in th e Black Sea any privileged status for the present

delimitation.

22. The existing Black Sea maritime delimitation agreements are now on the screen. This is

a map that was shown by Mr.Bundy in his overview of the case. It is also reproduced at tab5.

The coasts of third States bordering the Black S ea are extraneous to the delimitation between

Ukraine and Romania and thus have no bearing on the method ⎯ or methods ⎯ of delimitation

appropriate as between Ukraine and Romania. The presence of third States may be relevant only to

the extent that the Court may have to take precautions in identifying a precise endpoint of the

68
CR 2008/18, p. 60, para. 2.
6CMU, pp. 43-64, paras. 4.33-4.68; RR, pp. 98-106, paras. 6.4-6.33. - 59 -

delimitation line so as to avoid potential prejudice to States situated on the periphery of the

delimitation area. Beyond that, the pre-existing maritime delimitations in the Black Sea have no

role to play in these proceedings.

23. The conclusion that delimitation agreements cannot by themselves create general rules of

international law rendering any particular method obligatory is supported by the case law involving

States bordering enclosed or semi-enclosed seas. Already in the 1969 North Sea Continental Shelf

cases, the Court set high standards for State practice in delimitation agreements to acquire legal

relevance. The Court stated as follows:

“Not only must the acts concerned amount to a settled practice, but they must

also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e., the existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis . The States concerned must therefore feel

that they are conforming to what amounts to a legal obligation. The frequency, or
even habitual character of the acts is not in itself enough.” ( North Sea Continental
Shelf, Judgment, I.C.J. Reports 1969, p. 44, para. 77.)

24. Romania ignores this consideration ⎯ i.e., the fact that resort to a particular method of

delimitation may have been motivated by factors that are only known to the relevant Contracting

Parties which may be wholly extraneous to the present delimitation.

25. In the Libya/Malta case, the parties discussed at length the relevance of State practice in

maritime delimitation, particularly with regard to the status of equidistance in international law at

the time. While the Court recognized that State practice could be important in showing “normal

standards of equity”, nevertheless, it rejected the proposition that State practice in general could

impose any method as compulsory. As the Court observed: “Yet that practice, however

interpreted, falls short of proving the existence of a rule prescribing the use of equidistance, or

indeed of any method, as obligatory.” ( Continental Shelf (Libyan Arab Jamahiriya/Malta),

Judgment, I.C.J. Reports 1985, p. 38, para. 44.)

26. The Court instead stressed that “there can be no question of ‘completely refashioning

nature’; the method chosen and its results must be faithful to the actual geographical situation”

(Ibid., p. 45, para. 57).

Madam President, with your permission that takes me to a convenie nt place where I could

stop for today and resume tomorrow with the rest of this speech. - 60 -

The PRESIDENT: Well, Ms Malintoppi, you are in the best position to know what lies

ahead tomorrow and if that is your thought on these matters, the Court will indeed now rise and

resume tomorrow morning for the continuation of Ukraine’s first round.

The Court now rises.

The Court rose at 12.50 p.m.

___________

Document Long Title

Audience publique tenue le jeudi 11 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)

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