Audience publique tenue le jeudi 18 septembre 2008, à 15 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
132-20080918-ORA-01-00-BI
Document Type
Number (Press Release, Order, etc)
2008/32
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

CR 2008/32

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2008

Public sitting

held on Thursday 18 September 2008, at 3 p.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 18 septembre 2008, à 15 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,

Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,

as Counsel and Advocates;

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,

M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,

comme conseils et avocats ;

M. Gicu Boroşi, directeur général de l’agence nationale des ressources minières,

M. Mihai German, directeur général adjoint de l’agence nationale des ressources minières, membre
de la Commission des limites du plateau continental de l’ONU,

M. Eugen Laurian, contre-amiral (en retraite),

M. Octavian Buzatu, capitaine de corvette (en retraite),

M. Ovidiu Neghiu, capitaine, ministère roumain de la défense,

comme experts techniques et cartographes ;

M. Liviu Dumitru, chef de l’unité frontières et délimitation maritime du ministère roumain des

affaires étrangères, - 6 -

Ms Irina Ni ţă, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the
Netherlands,

Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,

Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,

Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign

Affairs of Romania,

Ms Olivia Horvath, Desk Officer, Public Diplom acy Department, Ministry of Foreign Affairs of
Romania,

as Advisers.

The Government of Ukraine is represented by:

H.E. Mr. Volodymyr A. Vassylenko, Adviser to th e Minister for Foreign Affairs of Ukraine,
Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law,
National University of Kyiv Mohyla Academy,

as Agent;

H.E. Mr. Oleksandr M. Kupchyshyn, Deputy Foreign Minister of Ukraine,

Mr. Volodymyr G. Krokhmal, Director of the Lega l and Treaty Department of the Ministry of
Foreign Affairs of Ukraine,

as Co-Agents;

Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the New York Bar,
Eversheds LLP, Paris,

Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of ParisI

(Panthéon-Sorbonne),

Sir Michael Wood, K.C.M.G., Member of the English Bar, Member of the International Law
Commission,

Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris , Member of the Rome Bar,
Eversheds LLP, Paris,

as Counsel and Advocates;

H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine,

Ms Cheryl Dunn, Member of the State Bar of California, Eversheds LLP, Paris,

Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,

Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty

Department of the Ministry of Foreign Affairs of Ukraine, - 7 -

Mme Irina Niţă, deuxième secrétaire, conseiller juridique à l’ambassade de Roumanie au Royaume
des Pays-Bas,

Mme Catrinel Brumar, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,

Mme Mirela Pascaru, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,

Mme Ioana Preda, troisième secrétaire, unité frontières et délimitation maritime du ministère

roumain des affaires étrangères,

Mme Olivia Horvath, responsable du départem ent des relations diplomatiques du ministère
roumain des affaires étrangères,

commceonseillers.

Le Gouvernement de l’Ukraine est représenté par :

S. Exc. M. Volodymyr A. Vassylenko, conseiller du ministre des affaires étrangères de l’Ukraine,
ambassadeur extraordinaire et plénipotentiaire d’Ukraine, professeur de droit international à
l’Académie Mohyla (Université nationale de Kiev),

comme agent ;

S. Exc. M. Oleksandr M. Kupchyshyn, vice-ministre des affaires étrangères de l’Ukraine,

M. Volodymyr G. Krokhmal, directeur du départem ent des affaires juridiques et des traités du
ministère des affaires étrangères de l’Ukraine,

comme coagents ;

M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,

M. Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI

(Panthéon-Sorbonne),

sir Michael Wood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,

Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Eversheds LLP, Paris,

comme conseils et avocats ;

S. Exc. M. Vasyl G. Korzachenko, ambassadeur extraordinaire et plénipotentiaire d’Ukraine,

Mme Cheryl Dunn, membre du barreau de Californie, cabinet Eversheds LLP, Paris,

M. Nick Minogue, Solicitor à la Cour suprême d’Angleterre et du pays de Galles,

M. Oleksii V. Ivaschenko, directeur par intérim de la division du droit international, département

des affaires juridiques et des traités du ministère des affaires étrangères de l’Ukraine, - 8 -

Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic,

Ms Mariana O. Betsa, Second Secretary of th e Embassy of Ukraine in the Kingdom of the
Netherlands,

as Legal Advisers;

Mr. Robin Cleverly, M.A., D. Phil, C. Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,

Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of

Ukraine,

as Technical Advisers. - 9 -

M. Maxime O. Kononenko, premier secrétaire à l’ambassade d’Ukraine en France,

Mme Mariana O. Betsa, deuxième secrétaire à l’ambassade d’Ukraine au Royaume des Pays-Bas,

comme conseillers juridiques ;

M. Robin Cleverly, M.A., D. Phil., C. Geol., F.G.S., consultant en droit de la mer, Admiralty

Consultancy Services,

M. Borys D. Tregubov, général de division, assistant du chef du service de protection des frontières
d’Etat de l’Ukraine,

comme conseillers techniques. - 10 -

The PRESIDENT: Please be seated. The sitting is open and the Court is meeting today to

hear the second round of oral argument of Ukraine. Ukraine will be heard this afternoon and again

tomorrow afternoon and I now invite the Agent, His Excellency Mr. Vassylenko, to take the floor.

Mr. VASSYLENKO: Thank you.

I. TATEMENT OF UKRAINE ’S A GENT

1. Madam President, Members of the Court, it falls to me as Agent of Ukraine to introduce

the second round of Ukraine’s pleadings.

2. We have carefully studied the additional arguments of Romania presented in its pleadings

earlier this week. We found nothing radically ne w that could undermine the basics of Ukraine’s

position and cast doubts on the delimitation line proposed by Ukraine.

3. Last Monday, Romania’s counsel said: “after more than ten hours of oral argument, their

1
claim line was justified. The justification took three minutes.”Indeed, Ukraine spent a relatively

short time for its final presentation of its delimitation line. But, in fact, we did not need more time

for this quite straightforward exercise, as both the written and oral pleadings of Ukraine had

already been devoted to the detailed justification of the line, which is constructive, equitable and

supported by the jurisprudence of the Court. As Romania’s counsel spent much effort to refashion

the geographic context of the case, Ukraine spent much time on rebutting their mistaken approach.

4. Romania’s team has sought to attack our legal arguments with jokes, historical anecdotes

and innuendos of bad faith. These jokes and other elements of entertainment stuff were amusing,

but they missed the point. We, for our part, have concentrated on the legal argument, as is

appropriate for cases before this Court. On th e other hand, Romania’s counsel have failed to

seriously address Ukraine’s arguments with regard to the flawed nature of Romania’s proposed

delimitation line.

5. Madam President, Members of the Court, now I would like to rebut some of Romania’s

Agent’s bold statements, and then briefly outline th e general structure of Ukraine’s response to the

issues raised by the counsel for Romania in the second round.

1
CR 2008/30, p. 21, para. 5. - 11 -

6. During the first round of oral hearings I w as reluctant to respond in detail to Romania’s

Agent’s distorted view of history. And I did not intend to do so during the second round of oral

pleadings. But having heard his introductory speech on Monday, I must again categorically reject

the allegations that the territorial status quo be tween Ukraine and Romania is the result of “past

injustices” which “should not be further magnified” 2. It was striking to listen to Romania’s Agent,

who went so far as to state: “It would also be unethical to expand the effects generated by manifest

violations of international law.” 3 By saying so, he implied that the post-war territorial settlement

based upon the Paris Peace Treaty was unethical and illegal. Such line of thinking needs no further

comments.

7. Indeed, past injustices should not be magni fied. They should also not be based on a

one-sided vision of history. Romania is evidently seeking sympathy and compensatory justice in

this case ⎯ something that has no relevance for maritime delimitation. But Romania definitely

should not be rewarded for having taken part in the war of aggression and committing grave war

crimes on the occupied Ukrainian territory. Having said this, I would like to reiterate our strong

belief that these past events are irrelevant to th e present case. In this regard, may I recall the

preamble to the 1997Treaty on the Relations of Good Neighbourliness and Co-operation,

according to which both Parties are convinced of the need for them to conduct an active

future-oriented policy of mutual understanding and concord, good neighbourliness and partnership.

8. The Agent of Romania repeated that th e 1948Protocol was not submitted to ratification

while omitting to mention that neither the Romani an Government nor the Romanian Parliament

raised any objections against the Protocol a nd its provisions when, very soon, they were

substantially repeated in the USSR-Romania 1949Border Treaty and in the USSR-Romania

1961Border Régime Treaty, both of which were ra tified by the Romanian Parliament. In this

regard I would again respectfully refer the Court to Chapter 5 of Ukraine’s Counter-Memorial.

9. Ukraine’s sovereignty over all its territory, including Serpents’ Island, was confirmed by

the 1997Treaty and Additional Agreement and the 2003Treaty, which were concluded between

Ukraine and Romania and duly ratified by the parliaments of both countries. It is these instruments

2
CR 2008/30, p. 15, para. 15.
3Ibid., p. 16, para. 16. - 12 -

which constitute the basis for the delimitation of continental shelf and exclusive economic zones

between the Parties.

10. Madam President, the Romanian Agent in his introductory speech on Monday reiterated

his assertion with regard to a “bilateral legal co mpromise of 1997” when the Treaty and Additional

Agreement were concluded. I would like to make clear that I personally participated in the process

of negotiating, finalizing, and initialing the text s of the 1997 Treaty and Additional Agreement in

Kyiv, as the head of the Ukrainian expert team and a member of the Ukrainian governmental

delegation, headed by the Minister for Foreign Affairs of Ukraine, His Excellency

Mr. Gennady Udovenko. This was together with my Romanian counterpart Mr. Dumitru Chaushu,

who was the head of the Romanian expert team and a member of the Romanian governmental

delegation, headed by the Minister for Foreign Affairs of Romania, His Excellency

Mr.AdrianSeverin. Both of them had initiale d the text of the 1997Treaty and the Additional

Agreement. Later, as a member of the Ukrainian high-level official delegation, I participated in the

ceremony of signing of these documents in Cons tanta on 2June1997 by the Presidents of both

countries.

11. Neither in Kyiv, nor in Constanta, was there any agreement, express or tacit, on any kind

of compromise beyond the framework of the signed documents. In fact, the compromise reached

was fixed in the Additional Agreement itself. Th e essential elements of this compromise were as

follows:

⎯ unconditional confirmation of the existing State border between Ukraine and Romania in a

separate Treaty on the Régime of the State Border , together with the possibility of either Party

having recourse to the International Court of Justice should bilateral negotiations on the

delimitation of continental shelf and EEZ not succeed;

⎯ an important condition for recourse to the Court was that the Treaty on the State Border

Régime had entered into force;

⎯ Ukraine’s obligation not to deploy offensive weapons on Serpents’ Island;

⎯ as there were differences between the Parties with regard to the principles to be applied during

the delimitation negotiations, it was agreed that the principles proposed by each Party would be - 13 -

listed in the Additional Agreement. The list of principles was simply to be a basis for the

negotiations;

⎯ as there was no agreement between the Parties concerning the effect of Serpents’ Island,

reference was made to Article121 of the Unite d Nations Convention on the Law of the Sea,

without specifying which paragraphs of the Article were to be applied.

All these elements were reflected in the Add itional Agreement. The Agent of Romania has

failed to present any evidence whatsoever in support of his version of the compromise.

12. I also categorically reject the repeated allegations of Romania’s Agent regarding

Ukraine’s activities on Serpents’ Island. Uk raine is under no obligation to refrain from

development of the island’s infrastructure, with the sole exception that it is not to deploy offensive

weapons on it. All the activities of the Ukrainia n Government on the island that the Romanian

delegation referred to in these pleadings are no mo re than the exercise of sovereign rights with

regard to Ukraine’s own territory. As counsel for Ukraine will again explain, there is no basis

whatsoever for the suggestion of “admission against interest” by Ukraine.

13. Madam President, Members of the Court, I would like to reiterate that Romania’s

counsel also failed to prove the existence of the alleged pre-existing all-purpose 12-mile maritime

boundary around Serpents’ Island, dating from 1949, including the existence of the mysterious

“point X”. The documents of the Soviet -Romanian negotiations, and the diplomatic

correspondence between Ukraine and Romania, as we ll as bilateral treaties, confirm that no such

line was ever agreed.

14. Madam President, now it remains for me to introduce Ukraine’s second round pleadings.

15. First, Sir Michael Wood will respond to Professor Crawford and Mr. Olleson as regards

the assertion of a pre-existing agreement line dating from 1949.

16. Then Mr. Bundy will address the arguments advanced by Professors Crawford and Lowe

regarding the relevant coasts of the Parties, and will say a few words on certain issues that have

arisen as regards Sulina dyke.

17. MsMalintoppi will address petroleum and coastguard activities, as well as Romania’s

argument on the enclosed or semi-enclosed nature of the Black Sea. She will also cover some

issues relating to Serpents’ Island. This will take us over to tomorrow. - 14 -

18. Tomorrow Professor Quéneudec will respond to our opponents on the construction of the

provisional equidistance line, and the relevant circ umstances to be taken into account to establish

an equitable line.

19. Following Professor Quéneudec, Mr. Bund y will address the equitableness of Ukraine’s

delimitation line, including a discussion of the re levant area, the application of the proportionality

test, and the issues of non-encroachment.

20. Finally, Madam President, I shall read out Ukraine’s final submissions.

Madam President, I should be grateful if you would invite Sir Michael Wood to address the

Court. Thank you.

The PRESIDENT: Thank you, Your Excellency. I now call upon Sir Michael.

Sir Michael WOOD:

II.A BSENCE OF A PRE -EXISTING ,ALL -PURPOSE MARITIME BOUNDARY AROUND
SERPENTS ’ SLAND

1. MadamPresident, Members of the Court, my task today is to address two issues in

response to what ProfessorCrawford and Mr.Olleson said in the second round: first, the

jurisdiction of the Court; and second, the absence of a pre-existing agreement establishing an

all-purpose maritime boundary.

2. As you recalled at the end of the first round, Madam President, the purpose of this round is

to enable each Party to reply to the arguments adva nced orally by the other. It should not be a

repetition of earlier statements. I shall therefore limit myself to replying to arguments made by

our opponents in the second round. For our full case, I refer the Court to Ukraine’s written

pleadings and first round oral argument.

4CR 2008/29, p. 52. - 15 -

A. Jurisdiction of the Court

3. As far as concerns the jurisdictional question that Ukraine has raised, I can be very brief.

Notwithstanding Professor Crawford’s remarks in the second round, Ukraine maintains its position

on the Court’s jurisdiction, as set out in our written pleadings and in oral argument last week 5.

4. But Ukraine accepts, of course, the principle in Article36, paragraph6, of the Statute of

the Court. It is for the Court, in the exercise of its compétence de la compétence, to decide (should

it be necessary to do so) the scope of the jurisdiction conferred by paragraph4 (h) of the

1997 Exchange of Letters.

5. In response to Professor Crawford, I would simply recall what I said last week: that, at the

very least, the terms of the compromis suggest that the Parties did not anticipate that the Court

would be called upon to delimit an all-purpose maritime boundary along the outer limit of

Ukraine’s territorial sea. Had they done so, they would surely have drafted the compromis

differently 6.

B. Absence of a pre-existing all-purpose maritime boundary around Serpents’ Island

6. Madam President, I now turn to what was said by the other side in response to our points

concerning Romania’s failure to establish the existe nce of an agreement, in force between Ukraine

and Romania, establishing a pre-existing all-purpose maritime boundary around Serpents’ Island. I

shall address their main arguments in the order in which they were presented.

What counsel did not say

7. MadamPresident, I note at the outset that what counsel for Romania did not say was at

least as interesting as what they did say. They r esponded to less than half of the ten points that I

7
listed early in my speech last week . In addition, there was no word about the need to interpret

delimitation agreements in accordance with the law of the sea as it stood at the time of their

conclusion ⎯ no reference to the Guinea-Bissau v. Senegal award 8. There was no word about

Romania’s territorial sea and EEZ decrees, with their contrasting references to boundaries with

5CR 2008/26, pp. 48-49, paras. 20-22 (Wood).
6
CR 2008/26, p. 49, para. 22 (Wood).
7CR 2008/26, pp. 44-46, para. 9 (Wood).

8CR 2008/26, p. 44, paras. 9 (iv) and 46-48 (Wood). - 16 -

9
neighbouring States . There was no word about the near-contemporaneous Soviet chart (or charts)

10
of 1951 . There was no mention of the fact that Romania extended its territorial sea to 12 miles in

1951. Romania simply ignores inconvenient facts.

Not a new argument?

8. Madam President, Professor Crawford began by challenging our point that the invocation

of a pre-existing agreement was a new argument, an argument devised by Romania for the

purposes of these proceedings. He said “the argument is not new” 11. In apparent justification for

this assertion, ProfessorCrawford explained that “ it is often the task of counsel to clarify and

develop positions taken by di plomats and governments who are... not always models of

consistency” 12. Iamnotsurewhat weareto makeofthat. Nor amI surewhatto makeof his

further statement: “the fact is that the 1949 Agreement argument” [I repeat, “the 1949 Agreement

13
argument”] “was developed on the basis of the available materials” . Further to establish that the

argument was not new, he referred to two navigational charts, produced in 1994 and 2001 14. But,

with all due respect, navigational charts are there to assist mariners, not to act as advocates in legal

proceedings.

9. Finally, on this point, Professor Crawford referred to a passage in Romania’s own record

of the final round of the delimitation negotiations with the Soviet Union, that took place in

October 1987 15. This passage, which had been cited by Mr.Dinescu, is quite interesting. I will

start one sentence earlier than the Co-Agent did. The Romanian delegation leader in 1987,

according to the Romanian records, said,

“At the date of the conclusion of the pr ocès-verbal the breadth of the Romanian
territorial sea was of 6 miles, the agreed delimitation line on that sector separated both
territorial waters of the two States and areas that, in the absence of any agreement,

would have belonged to the high seas. That is why we are right to consider that, in
1949, our governments established a sui generis delimitation line, which . . . allocated

9CR 2008/26, pp. 45-46, para. 9 (viii)) (Wood).
10
RU Ann. 3.
11
CR 2008/30, p. 43, para. 2 (Crawford).
12
Ibid.
13Ibid.

14Ibid.
15
CR 2008/30, p. 43, para. 3 (Crawford). - 17 -

to [Serpents’ Island], in part expressly and in part implicitly [implicitly!], a
semicircular maritime space, with a radius of 12miles, whose exterior limit on the
segment separating Romanian waters from Soviet waters received the characteristics
16
of a State boundary.”

10. According to ProfessorCrawford, this statement “contains the key elements of

Romania’s argument in relation to the 1949 procès-verbaux”. If it does so, the Romanian argument

is even more obscure than I had thought. It is unclear what “segment” the statement was referring

to. And it is far from clear what part of the establishment of the supposed line was “explicit” and

what part was “implicit”. An “implicit” agreed maritime boundary delimitation line is somewhat

improbable, to put it mildly.

11. In any event, I would point out that the selected extracts before the Court from this

unilateral Romanian record, to which Romania alone has access, do not indicate what response the

Soviet negotiator made to the Romanian stat ement. I suggested last week and nothing

Professor Crawford has said changes this assessment that no material assistance can be gained from

17
these extracts .

12. But even if the record did show what Professor Crawford would have it show, which it

does not, is it not remarkable that this is the best Romania can do? Romania’s counsel have not

even attempted to point to evidence, or I think ev en to claim, that Romania put forward what they

now call “the 1949Agreement argument” at any point before 1987, that is, 38years after an

agreement was said to have been concluded between the Soviet Union and Romania.

13. Next, Professo Crrawford menti oned the map accompanying Romania’s

1997 submission of its straight baselines to the United Nations. Professor Lowe also referred to it

when answering JudgeOxma n’s second question, and he displayed a map on the screen 18.

ProfessorCrawford suggested that “it is anothe r example to show that this was not a new

argument” 19⎯ this time, I would note, an example from almost 50 years after the agreement was

said to have been concluded. And Professor Lowe sought to link the map to the alleged

1CR 2008/30, p. 40, para. 23 (Dinescu).
17
CR 2008/24, p. 44, para. 38 (Wood).
1CR 2008/31, p. 42, para. 3.

1CR 2008/30, p. 44, para. 4 (Crawford). - 18 -

1949 agreement, asserting that Ukraine had “never challenged that map, and it must be considered

to have accepted the claim that it depicts”.

14. MadamPresident, there are a number of points to make here. First, it is not clear what

ProfessorLowe meant by “the claim that [the map] depicts”. Second, the map he showed on the

screen may well have been the map deposited by Romania with the United Nations, but it was not

the map published by the United Nations Divisi on of Ocean Affairs and the Law of the Sea

(DOALOS). The map that was published by DOALOS–– which bears the reference

MZN15-1997 –– is at tab 1 in your folders. The depiction of Romania’s contiguous zone, such as

it is on this published map, is not the same as that on the map referred to by ProfessorLowe.

Third, the Romanian notification, which the ma p accompanied, was a notification to the United

Nations Secretariat of Romania’s straight b aseline co-ordinates–– a notification made in

accordance with Article16 of the Law of the Sea Convention. You will fi nd at tab2 in your

folders, the United Nations Secretariat Note communicating to other States Romania’s straight

baselines submission. The Secretary-General’s Note is clear. It is headed “Deposit by Romania of

the list of geographical co-ordinates of points fo r the drawing of straight baselines and a chart

showing its straight baselines and the outer limit of its territorial sea”. In the body of the Note, the

Secretary-General says that, on 19June 1997, Romania transmitted for deposit with the

Secretary-General, in accordance with theConvent ion, a list of geographical co-ordinates for the

points for the drawing of straight baselines contained in the Romanian Act, and a chart “showing

the straight baselines and the outer limit of the territorial sea”. There is no mention here of the

depiction of any contiguo us zone. The contiguous zone was si mply not relevant to the Article 16

notification. There was nothing published by the United Nations to which Ukraine should have

reacted. This argument, it seems to me, is a very shaky ground upon which to construct a case for a

1949 agreement, in force between the Parties, on an all-purpose maritime boundary going round to

“point X”.

15. As I said earlier, Professor Crawford seemed to rely on this 1997 map chiefly as part of

his efforts to show that the “1949 Agreement argument” was not new in 2005. But even if he could

show that such an argument was put forward in 1997, which, in my submission, he has not done,

that would scarcely help Romania’s case. It would merely establish that the argument had been put - 19 -

forward nearly 50 years after the supposed agreement was concluded. It really is no answer to say

that the “1949Agreement argument” was being “developed on the basis of the available

20
materials” . Either there was an agreement in 1949, or there was not. It was not something to be

constructed on the basis of “available materials”.

Note Verbale of 28 July 1995

16. Professor Crawford next came up with a ne w translation of the key sentence of the Note

Verbale of 28 July 1995. But his new translation adds nothing. According to the new translation,

Romania acknowledged that “no agreement was co ncluded between Romania and Ukraine on the

delimitation of the maritime areas in the Black Sea”. There is no material difference between this

translation and the translation we considered l ast week. The new translation certainly does not

justify ProfessorCrawford’s conclusion that th e phrase “clearly refers to the absence of an

agreement concluded between the parties in relation to the delimitation of the continental shelf and

exclusive economic zone as a whole” 21. Moreover, as I said last week, this Romanian statement is

22
by no means an isolated one . Romania’s position in the 1990s was clear, they said that the

1949and 1961 Treaties on the Border Régime did not include provisions referring to the

delimitation of the continental shelf

Burkina Faso/Mali

23 24
17. Madam President, Professor Crawford , and later Mr. Olleson , suggested that we had

misunderstood the Chamber’s analysis in Burkina Faso/Mali. According to them we had read the

Judgment as saying that the maps which “fall into the category of physical expression of the will of

the State or States concerned” were exclusively th ose which are “annexed to an official text of

which they form an integral part”. We did not in fact say this. In any event, with all due respect, it

is ProfessorCrawford and Mr.Olleson who have misread the Judgment. They read into it a

category of maps “where the map in question is produced by a State and depicts without

20CR 2008/30, p. 43, para. 2 (Crawford).
21
CR 2008/30, p. 44, para. 5 (Crawford).
22
CR 2008/24, p. 47, para. 51 (Wood).
23CR 2008/19, p. 38, paras. 52-53 (Crawford).

24CR 2008/30, p. 58, para. 11 (Olleson). - 20 -

qualification a boundary between itself and another State” 2. Nowhere, I think, does the Judgment

mention any such category. What the key passag e actually does is to single out as one example ⎯

as the example that it gives ⎯ “maps annexed to an official text”. No other examples are given.

You will find the passage in question, paragraph 54 of the Judgment, at tab 3. I do not need to read

it again [but it will appear in the transcript]:

“maps merely constitute information which varies in accuracy from case to case; of
themselves, and by virtue solely of their ex istence, they cannot constitute a territorial
title, that is, a document endowed by interna tional law with intrinsic legal force. Of
course, in some cases maps may acquire such legal force; but where this is so the

legal force does not arise solely from their intrinsic merits: it is because such maps
fall into the category of physical expressions of the will of the State or States
concerned. This is the case, for example, when maps are annexed to an official text of
which they form an integral part. Except in this clearly defined case, maps are only

extrinsic evidence of varying reliability or unreliability which may be used, along with
other evidence of a circumstantial kind, to establish or reconstitute the real facts.”
(Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 ,

p. 582, para. 54.)

Burden of proof

18. ProfessorCrawford next argues that the question of burden of proof simply does not

arise. This is because, in his words, “clearly there was an agreement, indeed there were a number

of agreements”, and so the matter is one not of establishing an agreement, which he seems to

accept would place the onus on Romania, but of interpreting an agreement already established. I

would suggest, Madam President, that this is a rath er nice distinction in this case. It begs the

question to say “clearly there was an agreement”. That begs the question. Of course there were

agreements, but before 1997 none of them dealt with anything other than the State border. Whether

one qualifies the matter as establishing the exis tence of an all-purpose maritime boundary

agreement, or as a question of “interpreting” such an agreement into the 1949 Agreements, the fact

is that Romania has to make out its case. This, we say, it has failed to do. “The establishment of a

permanent maritime boundary is a matter of grave importance and agreement is not easily to be

presumed.” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean

Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para.253.) If Romania had been

25
CR 2008/19, p. 38, para. 54 (Crawford). - 21 -

going to show the existence of an all-purpose maritime delimitation agreement dating from 1949, it

would have had to come up with far more persuasive evidence than it has mustered in this case.

6-mile territorial sea point

19. Next, ProfessorCrawford seeks to make a good deal of the fact that, in 1949, Romania

only had a 6-mile territorial sea. Therefore, he says: “[t]he suggestion that the 1949and

subsequent agreements delimited solely a ‘Sta te border’, separating areas under the respective

sovereignty of both States, is demonstrably incorrect” 26. Notwithstanding the emphasis with which

this was made, this is a thoroughly unconvincing point. It is clear that what the Parties were doing

was delimiting and demarcating the State border, an d it was perfectly natural for them to delimit

the State border as it would be when Romania extended its territorial se
a to 12 miles.

20. In order to show that the Parties did not have Romania’s prospective extension to

12 miles in mind, our colleagues on the other side have engaged in speculation themselves, despite

the fact that they have access to th e records of the negotiations. Ukraine, of course, does not have

access to any records of the negotiations, to whic h it was not a party. But our opponents have

produced nothing from the negotiating record to re but the rather obvious inference that we have

drawn from what the negotiating parties actually ag reed upon. Instead, they have suggested that

Romania only extended its territorial sea in 1956. That is simply not so. As Romania itself made

27
clear in its Memorial , the extension to 12 miles took place in September 1951, just two years after

signature of the 1949 procès-verbaux. At tab 4, Madam President, you will find Romania’s Decree

No. 176, which was published in the Official Bulletin in September 1951 28. It is also at Annex 80

to Romania’s Memorial. As you will see on the second page, at point 4, second paragraph, the

Decree provides that: “Territorial sea means a 12 nautical mile (22,224 m) wide stripe, measured

from the shore.” I note in passing that there is nothing unusual or untow ard in anticipating an

extension of the territorial sea within the limits permitted by international law.

26
CR 2008/30, p. 46, para. 13 (Crawford).
27
MR, para. 11.11 and Ann. 80.
2MR, Ann. 80. - 22 -

What the Parties intended

21. It is noteworthy that Romania itself has produced no evidence to support its own

speculation about what was in the minds of the negotiators in 1949. As I have said, Romania as a

party to those negotiations must have its own records. Professor Crawford argued that “there is no

indication whatsoever in the 1949procès-verbaux or elsewhere that the parties had in mind a

‘prospective’ Romanian territorial sea”. But that they would have had this in mind, we say, is

evident from what they did. It is inconceivable that, as they agreed point 1439 on the outer limit of

the Soviet Union’s 12-mile territorial sea, they would not have had in mind Romania’s own

imminent extension to 12 miles. The fact that the point on the map ⎯ map 134 ⎯ does not

correspond precisely to the exact point where in 1949the 12-mile territorial seas would cease to

overlap is beside the point. The 1949procès-verb al did not specify the actual co-ordinates of the

endpoint of the State border. That was only done in 2003. But the intention in 1949 was clear.

22. Next, we are told by our opponents that if the Parties, and again I quote, “were concerned

with delimitation only to 12 miles . . ., one would have expected there to have been some indication

of this in the text of the 1949procès-verbaux. There is not.” 29 But, MadamPresident, there is.

The numerous references in the agreements of 1948 and 1949to th e “State border” are a clear

indication of the intention of the Parties. What is striking, by its absence, is any indication ⎯ in

the text of the agreements ⎯ of an intention to delimit a border going beyond the 12-mile territorial

sea.

23. Once again, we are told th at Ukraine’s argument “is based wholly on its hypothesis as to

the extent of the boundary shown on map134”. This is not so! Our position is based on our

understanding of the whole series of transactions from 1947 to 1949, leading to the conclusion of

the 1949 State Border Treaty. Their purpose was to determine the State border. The transactions

led to a clear result. Map134 is one element, an important element ⎯ but one element ⎯ in the

overall consistent picture.

29
CR 2008/30, p. 46, para. 14 (Crawford). - 23 -

Plates I and V

24. I now turn to plates I and V. Our opponents have gone on at length about the status of

platesI and V. These, you will recall, are two sketches said to be included in some way in the

album of maps (referred to also as “the catalogue”) , which contains the 134maps attached to the

1949 general procès-verbal. Professor Crawford con tinues to mischaracterize these sketches. Yes,

they appear at the front of the album of maps as submitted by Romania to the Registry in the

middle of 2007. But it is not clear from the materi al supplied at tabIV-5 of their folders–– the

folders handed to the judges for the hearing on 15 September –– what is, and what is not, included

in the album. [Place front cover on screen.] As you can see on the screen, the front cover of the

album supplied by Romania appears to indicate (i n manuscript at the bottom, in Romanian) that

there are 149 sheets (134 + 13 + 2). Immediately following the front cover in the judges’ folders

version, from earlier this week, but not, so far as I could see, in the copy held by the Registry, there

follows what appears to be a list of contents [place list of contents on screen] ⎯ I’m afraid this is

probably too small to see, but it is in the tabs that were submitted by Romania ⎯ or perhaps part of

a list of contents, this lists only 145sheets: 1 + 4 + 134 + 6. The album of maps held by the

Registry does not appear to contain either this list of contents or the last six sheets referred to in the

list of contents, which are said to show the “char acteristics and drawings of the State border signs”

[remove from screen]. If one adds to this uncer tain picture the fact that Romania “discovered”

30
plates I and V only after the submission of its Memorial , the mystery deepens. In any event, the

album of maps (whatever its composition) was not itself listed in the 1949 procès-verbal under the

heading “The following documents are attached to this Protocol”, and is not otherwise mentioned

in the procès-verbal. The only maps listed under the heading were the “Maps of the state border

between the USSR and the RPR at a scale of 1:25000”, in other words the maps numbered 1 to

134 31.

25. Our opponents have once again offered no reply to any of our points distinguishing these

two sketches ⎯ plates I and V ⎯ from the maps attached to the 1949 general procès-verbal. They

30
RR, para. 4.65.
3CR 2008/24, p. 43, para. 31 (Wood). - 24 -

have in particular offered no reply to the point I repeated last week concerning the function of

plates I and V, which most certainly was not to depict the State border.

26. I turn now to another point. Quite apart from the uncertainties concerning their

symbology, the maps referred to in this case either show no line at all, or show a line going to

various distances along the outer limit of Ukraine’s territorial sea. As Romania itself points out,

the lengths of the lines on platesI and V, a nd on the sketches included in the individual

procès-verbaux, and on the other charts and sk etches, vary. The lines do not uniformly go to

Romania’s “point X” or to any other point. The only constant in our case is point F, determined by

the 2003 Treaty.

27. In this connection, it is worth recalli ng what you said about inconsistent maps in

Indonesia/Malaysia. You will find the relevant extract at tab 5. As you know, MadamPresident,

Members of the Court, and you will find this at paragraph 90, Indonesia had submitted

“a certain number of maps... showing a line continuing out to sea off the eastern

coast of Sebatik Island... The Court notes that the manner in which these maps
represent the continuation out to sea of the line... varies from one map to another.
Moreover, the length of the line... varies considerably: on some maps it continues

for several miles..., whilst on others it extends almost to the boundary between the
Philippines and Malaysia.” ( Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, pp. 667-668, para. 90.)

The Court concluded that “In sum,... the cartographic material submitted by the Parties is

inconclusive in respect of the interpretati on of Article IV of the 1891 Convention.” ( Ibid., p. 668,

para. 91.)

The international law of the sea in 1949

28. Madam President, ProfessorCrawford came up with no less than six points in response

to my argument concerning the applicable international law of the sea in 1949. All six points seem

to be aimed at showing that the concept of the continental shelf was known, and known to the

Soviet Union in 1949. Most of his points hardly call for comment, such as those on the work of the

ILC in 1950 and 1951. The reference to the con tinental shelf in the Tsar’s Siberian islands

declaration of 1916 is I think generally regarded as a curiosity, not as foreshadowing the modern

32
doctrine . The declaration concerned islands, not the sh elf. The famous Gulf of Paria Treaty of

32
W.E. Butler, The Soviet Union and the Law of the Sea (1971), p. 139. - 25 -

1942 , between Great Britain and Venezuela, was car efully drafted to avoid implying exclusive

rights. It is at tab6. As the preamble makes clear, the purpose of the two Governments was “to

define as between themselves their respective interests in the submarine areas of the Gulf of Paria”.

Article2 of the Treaty also makes clear the essentially bilateral nature of this transaction. In any

event, as ProfessorCrawford sugg ests, the real question is “whether informed governments could

have understood a 1949agreement about a maritime boundary zone... as a delimitation not

limited to the territorial sea” 34. Of course they could. But the question is not whether the Soviet

Union and Romania could do so; it is whether they did do so. As I explained last week, and I shall

not repeat the arguments here, given the state of the law and given the attitudes of the parties to the

notion of the continental shelf at that time, it is in conceivable that they did so. There is nothing in

the text of the agreements to suggest that they did. The contrast with the Gulf of Paria Treaty could

not be more stark.

Non-contemporaneous map evidence

29. Madam President, Members of the Court, that concludes my response to

Professor Crawford. I now turn to what Mr. Olleson had to say about non- contemporaneous maps.

These, you will recall, are prayed in aid by Romania “as confirming and corroborating its

arguments as to the effects of the 1949 procès-verbaux” 35.

30. Mr.Olleson began by making a number of rather exaggerated claims. That the map

36
evidence was “all one way” . That “a large proportion of the maps in question were produced by

Ukraine and, previously, the Soviet Union” 37. That “the earliest charts that either side has located

38
are the charts produced by the Soviet Union in 1957” . That the 1957 charts were “produced . . .

39
not long after conclusion of the 1949agreements” . That the 1957 Soviet chart was produced

33
205 LNTS 121.
34
CR 2008/30, p. 53, para. 32 (Crawford).
35
CR 2008/30, p. 56, para. 1 (Olleson).
36Ibid., p. 57, para. 4.

37Ibid., p. 57, para. 4.

38Ibid., p. 57, para. 6.
39
Ibid., p. 57, para. 6. - 26 -

40
“just a year after Romania extended its territorial sea from 6 to 12 miles” . That “all the maps

produced by the Soviet Union and Ukraine show the agreed boundary” 41. None of these statements

is correct.

31. Mr. Olleson next addressed the case law on maps. We were told that the annotations on

the maps produced by Romania were “clear and consistent” like the six maps in

Malaysia/Singapore. I would just recall, unnecessarily no doubt, what the annotations were in

Malaysia/Singapore. They are described at paragraph 269 of your recent Judgment. The relevant

extract is at tab 7. The maps were published by the Malayan and Malaysian Surveyor General and

Director of National Mapping between 1962 and 1975. As you said in your Judgment,

“Those maps include Pedra Branca/Pulau Batu Puteh with four lines of
information under it:

‘Lighthouse 28,

P. Batu Puteh,

(Horsburgh),

(SINGAPORE) or (SINGAPURA)’.”

You went on to note that “[e]xactly the same designation ‘(SINGAPORE)’ or ‘(SINGAPURA)’

appears on the maps under the name of another island which unquestionably is under Singapore’s

sovereignty”. And even though it appeared to th e Court “that the annotations are clear”, your

conclusion was a prudent one. You said: “The Co urt concludes that those maps [the six maps]

tend to confirm that Malaysia considered that Pedra Branca/Pulau Batu Puteh fell under the

sovereignty of Singapore.” ( Ibid., para.272.) Madam President, there is no comparison between

the markings in Malaysia/Singapore and the markings on the maps produced by Romania in this

case. The only map that might be thought to have anything approaching a “clear” annotation is the

1991 map produced by the Bundesamt für Seeschiffahrt und Hidrologie of the Federal Republic of

42
Germany . That map obviously has no legal standing whatsoever for the Parties to the present

proceedings.

40
Ibid., p. 57, para. 6.
41
Ibid., p. 58, para. 11.
4Map RM A 41 and 42. - 27 -

32. Mr. Olleson then claims that 31 non-cont emporaneous maps relied upon by Romania are

“entirely consistent in depicting the agreed bounda ry [as he calls it] as extending beyond pointF,

43
and around Serpents’ Island” . (I am not sure how the number 31 was arrived at, despite our

opponents’ obvious abilities when it comes to counting. It seems to have been 23 in the Reply.

But no matter.) Mr. Olleson showed you once agai n a number of maps de picting one or other

variation of the Romanian “‘hook”. The maps re lied upon by Romania are indeed “all consistent

44
with showing the boundaries as extending beyond point F” . There is no surprise there! If they

had not shown such extensions, at least of some length, Romania would obviously not have relied

upon them. But what Romania fails to acknowledge is that there are other maps, many of them,

that do not contain the annotation, the “hook”, that “hook” that bears such a great part of the weight

of Romania’s case. [Place 1951 chart on screen.] Romania studiously ignores, for example, the

1951 Soviet chart, which is now on the screen: it is also at tab8, and it was annexed to our

Rejoinder 45. This is the Soviet chart from 1951, and as you will see, there is no “hook”! This, it

will be recalled, is the first and near-contemporaneous edition of one of the 1957 charts relied upon

by Romania. It was found and submitted to the Court by Ukraine. Romania likewise ignores the

recent United Kingdom Admiralty Chart, whic h Ukraine annexed to its Counter-Memorial 46.

[Place UK chart on screen.] This is now on the screen, and it is at tab 9 in the folders. Again, we

can enlarge the section [enlargement on screen] show ing the land border and Serpents’ Island, and

you will see there is no “hook”. Incidentally, the le gend on this British chart, which is now itself

being enlarged [enlarge legend], is interesti ng. It reads, “Sources: Romanian and Russian

Government charts of 1980 to 1994 with later co rrections.” Such an annotation often appears on

charts, it is an example of cartographers using existing data from earlier maps. Professor Crawford

sought to dismiss maps such as the Soviet ma p of 1951 and this British map of 2004 as “silent

witnesses”. But with all due respect, and perhaps the thought does not come easily to members of

the bar, silence can also be eloquent. [Remove chart from screen.]

43
CR 2008/30, p. 60, para. 21.
44
CR 2008/30, p.61, para 23.
45RU, Ann. 3.

46CMU, Ann.44: British Admiralty Chart No. 2232 Black Sea ⎯ Romania and Ukraine: Constan ţa to Yalta,
published in 1995, reissued in 2004. - 28 -

33. Mr. Olleson next attacked my “speculation” that the cartographers of the Soviet Union in

1957 were concerned with security issues. He did not in fact suggest that this was an unlikely

explanation. He contented himself with the thought that, if this had been the purpose, the line

would have gone all round the Island. But that, with respect, is scarcely a convincing argument. A

“hook” was a perfectly clear way of indicating the presence of Serpents’ Island and its 12-mile

territorial sea. Most foreign ships would have b een approaching from the south, anyway, not from

the Soviet Union’s own ports.

47
34. Mr. Olleson also said that “[n]o evidence was provided on this point” . That accusation

comes ill from those who speculate, with no evidence whatsoever, that a Soviet cartographer in

1957 decided to depict, on a new edition of a 1951 ch art, an all-purpose maritime boundary that he

took to have been agreed back in 1949 by the Soviet Union and Romania. By contrast, my

inference is based on the solid fact of Soviet m ilitary activity on Serpents’ Island. While Ukraine

does not have access to Soviet documentation concerning Soviet military activities on Serpents’

Island, it is clear that they were important and, being on an external border of the Warsaw Pact,

they were obviously sensitive. As we said in the Counter-Memorial, servicemen consisting of air

defence troops of the USSR were permanently stationed on Serpents’ Island from 1946 until

48
Ukraine’s independence . Some indication of the scale of the activities may be deduced from

Annex90 to our Counter-Memorial, the 2002 Plan for the withdrawal of Ukrainian armed forces

from the Island. The large amount of equipment that was being removed was essentially what the

Soviet Union had left behind. There is reference, among other things, to a radar complex and radar

stations, to radio stations, to 240 containers of technical property, to a number of AK-74

submachine guns. It is clear that the military activities on Serpents’ Island were not insubstantial.

35. I am next told that my reference to the “copycat effect” is also speculative. Mr. Olleson

mentions that “[t]he charts submitted by Romania are on a wide variety of scales, and show a

49
variety of different areas of the Black Sea” . But that, with respect, does not mean that the data

they contain is not taken from previous maps. I should have thought that it was self-evident that

4CR 2008/30, p. 64, para. 36.
48
CMU, para. 7.68.
4CR 2008/30, p. 64, para. 38. - 29 -

“hooks” appearing on subsequent charts could be tr aced back to the “hooks” on the 1957 charts. It

would have been a strange coincidence indeed if cartographers in various countries almost

simultaneously, but independently, decided to place a “hook” on their charts of the north-west

Black Sea.

36. The “copycat” effect is a well recognized phenomenon in mapping and charting. It has

even received judicial recognition. Could I invite you, please, to turn to tab 10 in the folders? The

Eritrea/Ethiopia Boundary Commission said in its Decision at paragraph 3.17:

“The Commission has also been presented with an abundance of maps . . . As is
often the case in circumstances such as those facing the Commission, many maps are

in effect copies of earlier maps. While a dding to the apparent number of different
maps, they do not in substance do so— except as possibly showing a consistent
course of conduct by a Party. The number of what may be regarded as original maps

is thus mo50 limited than the long list of maps presented by the Parties would
suggest.”

37. The next point, Madam President: Mr. O lleson ended by relying on a sentence from the

51
Judgment of this Court in the Minquiers and Ecrehos case of 1953 . Professor Crawford cited the

same phrase in the first round 52. Both Professor Crawford and Mr. Olleson said that the case was

authoritative for the proposition that, and I quote from Mr.Olleson, “a chart published by a State

showing a boundary, without any qualification must be taken as”— and here comes the brief

quotation from the Judgment— “evidence of the [State’s] official view at that time”. In fact, if

you read the passage as a whole, it is authority for a quite different proposition. The relevant

extract from this Judgment is at tab11 in the folders. As you will see from the passage we have

sidelined, the Court was referring to diplomatic ex changes between Britain and France in 1820. It

did not, as ProfessorCrawford and Mr.Olleson implied, say that “where the map in question is

produced by a State and depicts without qualification a boundary between itself and another State”,

53
the map must be considered as “evidence of the [State’s] official view at that time” . What the

Court actually said is this: you will see it in the middle of the page.

50
Eritrea/Ethiopia Boundary Commission, Decision Regardi ng Delimitation of the Border between The State of
Eritrea and The Federal Democratic Republic of Ethiopia.
51
CR 2008/30, p. 65, para. 40 (Olleson).
52CR 2008/19, p. 38, para. 54 (Crawford).

53Ibid. - 30 -

“By his Note of June 12th, 1820, to the Foreign Office,— the French
Ambassador in London transmitte d a letter from the French Minister of Marine — to

the French Foreign Minister, in which the Minquiers were stated to be ‘
possédés par
l’Angleterre’, and in one of the charts enclosed the Minquiers group was indicated as
being British. It is argued by the French Government that this admission cannot be

invoked against it, as it was made in the cour se of negotiations which did not result in
agreement. But it was not a proposal or a concession made during negotiations, but a
statement of facts transmitted to the Foreign Office by the French Ambassador, who
did not express any reservation in respect thereof. [And here comes the phrase relied

upon by ProfessorCrawford.] This statem ent must therefore be considered as
evidence of the French official view at that time.” ( Minquiers and Ecrehos
(France/United Kingdom), Judgment, I.C.J. Reports 1953, p. 71.)

As you will see, far from saying that the map as su ch must be considered as evidence of the French

official view, it was the fact of the official transmission by the French Ambassador to the Foreign

Office of the text of a letter saying that the Minquiers were possessed by England and of a map

indicating the group as being British. It was that that was evidence of the official French view.

C. Conclusion

38. MadamPresident, Members of the Court, by way of conclusion, I shall make just three

points.

39. First, in constructing what Professor Crawford referred to as “the 1949Agreement

argument” 54, Romania has placed enormous weight on the agreements from the late 1940s, and has

correspondingly sought to downplay the agreements of 1997 and 2003. Yet it is the 1997 and

2003Agreements that are central to relations between the Parties in these proceedings. The

jurisdiction of the Court derives from the 1997Exchange of Letters, which also makes clear that

the entry into force of the 2003State Border Tr eaty was a precondition for the reference to the

Court of the question of delimitation of the shelf and exclusive economic zones. The State Border

Treaty of 17 June 2003, especially, is central. The significance of the 2003 Treaty extends beyond

the fact, important though that is, that in it Ukraine and Romania finally reached agreement on

pointF, the endpoint that the Soviet Union and Romania had left unspecified in 1949. The

2003Treaty is the governing treaty between the Parties on the State border. It replaced the

1961Treaty, which itself had replaced the 1949Treaty. As a matter of law, the 1961 and

1949Treaties are superseded. They are relevant only to the extent that they are referred to in the

54
CR 2008/30, p. 43, para. 2 (Crawford). - 31 -

2003 Treaty. They are relevant only in so far as they describe the line of the State border, which ⎯

as agreed in the 2003 Treaty — terminates at point F.

40. It should be recalled, Madam President and Members of the Court, that for a period in

the 1990s after Ukraine regained its independence, Romania had questioned the binding force and

validity of these earlier agreements, particul arly those from 1948 and 1949, and Romania had

sought to reopen the post-War territorial settlement and the State border agreed in 1949. In the

2003 Treaty, the Parties reaffirmed the post-War territorial settlement and they reaffirmed the State

border agreed in 1949. Upon its entry into for ce in 2004, the 2003 Treaty finally and definitively

settled the question of the State border, whic h was a precondition for the reference of the

continental shelf and EEZ delimitation question to this Court.

41. My second point is that, it is as clear as it could be that point F, agreed by co-ordinates in

2003, was the endpoint of the line of the State bo rder, the line that was agreed in 1949, and

reaffirmed on many occasions. It is also clear, and I think it is indeed common ground between the

Parties, that pointF in the 2003Treaty constitutes the starting-point for th e delimitation in these

proceedings.

42. My third point in conclusion is this. Notwithstanding Professor Crawford’s admonition,

it remains the case that the onus of showing th e existence of an agreement from 1949 rests upon

Romania. They most certainly do bear a heavy burden, and in our submission they have

comprehensively failed to discharge it.

43. MadamPresident, Members of the Court, that concludes my presentation, and I would

request that you invite Mr.Bundy to address you next in continuation of Ukraine’s case, either

before or after the tea break. Thank you.

The PRESIDENT: Thank you, Sir Michael. I would rather like to know if Mr.Bundy

would like a clear run for the entirety or would like to make a beginning?

Mr. BUNDY: I would be happy to make a beginning, Madam President.

The PRESIDENT: Yes, please then come forward; we call Mr. Bundy to make a start. - 32 -

Mr. BUNDY: Thank you,. Madam President, Members of the Court.

III. HE RELEVANT COASTS

1. In this presentation, I intend to take up the important question of the relevant coast of the

Parties. It is a matter that ProfessorCrawford addressed on Monday and, to a lesser extent,

ProfessorLowe on Tuesday: and my remarks will be directed primarily to the presentations of

those two counsel.

2. I will also, in a second, and briefer part of my presentation, offer a few observations on

Mr.Müller’s intervention, which focused on the Sulina dyke, ⎯ a matter which ProfessorLowe

dealt with as well ⎯ since this aspect of the case figures prominently in Romania’s view of the

relevant geography, and the Sulina dyke controls a large part of Romania’s claim line.

3. As for the relevant area, another matter addressed by Professors Crawford and Lowe, I

will come back to that subject tomorrow when I address the equitableness of Ukraine’s delimitation

line and the test of proportionality.

4. So with that brief introduction, let me turn directly to the issue of the relevant coasts of the

Parties in this case.

A. The relevant coasts of the Parties

1. The southern coasts

5. On Monday, ProfessorCrawford elected to address the relevant coasts in reverse order,

starting in the south. He adopted this tact as a result of his view that Ukraine had been

“dismissive” of Romania’s southern coast, and he understandably felt that that southern coast

needed to be resurrected (CR 2008/30, p. 26, para. 22).

6. Let me clarify one matter right at the outset . It is not Ukraine that has been “dismissive”

of any parts of the Parties’ coasts in this case. It is Romania. Ukraine’s position is very clear.

Ukraine considers that it is the whole of both Parti es’ coasts that abut the north-west corner of the

Black Sea should be considered to be relevant co asts in this case for delimitation purposes. That

applies to Romania’s coast ⎯ including its southern coast ⎯ as much as it applies to Ukraine’s

coast ⎯ including its northern coast. - 33 -

7. The only “dismissing” of coasts being undert aken in this case has been done by Romania,

because it is Romania that at all costs seek s to eliminate 630 km of Ukraine’s coast ⎯ that is, two

thirds of Ukraine’s coast fronting this part of the sea ⎯ from consideration while keeping its entire

coast all the way down to Bulgaria in play as a relevant coast.

8. To the extent that Ukraine has focused on Romania’s southern coast, it is simply to point

up the double standards that Romania applies when discussing the coastal geography.

9. Romania says parts of Ukraine’s coast poi nt in the wrong direction because 90° angles

drawn from certain, arbitrarily selected segments along the coast do not point out into the middle of

the sea. Ukraine has shown that, if su ch perpendicular criteria are applied ⎯ and they should not

be applied ⎯ but if they are, then Romania’s southern coast is vulnerable to the same criticism.

Under Romania’s thesis as we have shown, much of that coast, divided into appropriate segments,

also points in the wrong direction.

10. Romania also asserts that Ukraine’s south-facing coast is too far away and that it is

therefore somehow “eclipsed” by closer parts of Ukraine’s own coast. Yet, Ukraine has shown that

this part of its coast, its south-facing coast, is no further away from the area of concern than is

Romania’s southern coast. [Place Ukraine tab 4 from first round on screen]. The Court may recall

the graphic that now appears on the screen that was from our first-round presentation illustrating

the point. Romania offered no response to this demonstration earlier this week.

11. Nor has Romania responded to another element that Ukraine mentioned last week. That

was the fact ⎯ I will not illustrate it again, but you can find it under tab26 of the first week’s

folders ⎯ that was the fact that all of Ukraine’s coast, all of it ⎯ including the south-facing

coast ⎯ lies closer to the base points that Romania h as used for the construction and plotting of its

equidistance line than the southernmost parts of Romania’s own coast.

12. These demonstrations put to rest, I would submit, ProfessorCrawford’s rather novel

theory, advanced in the first round, which he calle d the “principle of comparative proximity”. It

was telling that my colleague did not revert to this ambitious concept in his second round

pleadings. Indeed, the “principle of comparative proximity” was mentioned by Romania this week

exactly the same number of times it has been mentioned in the Court’s jurisprudence ⎯ not once. - 34 -

13. But let me return to Professor Crawford’s discussion of the coasts of the Parties starting

in the south. He posited Romania’s what he term ed “point Z” as the starting-point because, in his

words: “It is an agreed point in the sense that it is the final point on the provisional equidistance

lines drawn by both Parties.” (CR 2008/30, p. 26, para. 22.)

14. “Point Z” may lie at the end of both Parties’ provisional equidistance line, but it does not

in any way lie on both Parties’ claim lines. It is a purely Romanian point on Romania’s claim

line ⎯ a claim line that takes no account whatsoever of the marked di sparity that exists between

the lengths of the Parties’ coasts as a relevant circumstance.

15. Having clarified that point, let me now turn to ProfessorCrawford’s main argument

which was that, in the south, the “opposite coasts” of the Parties readily identify themselves. He

said that they are similar in outlook and orient ation, and are of approximately equal length.

According to Professor Crawford, if the delimitati on was to take place solely between these coasts,

that would call for an equidistance line (CR 2008/30, p. 26, para. 23).

16. But once again, our opponents put their blinders on when they attempt to parse the

delimitation area into discrete sectors. The delimitation requested of the Court is not limited to this

area. As Ukraine pointed out in its first round, ProfessorCrawford’s tendency to focus on only

parts of the coasts at one time ⎯ in this case, the coasts that he deems are the “opposite” coasts ⎯

without taking into account the overall geographic context, is divorced from how the case law has

treated the issue of the relevant coasts.

[Tab 31 to Ukraine’s first round on screen]

17. Take the Gulf of Maine case. I assure the Court that I do not intend to repeat what I said

in the first round other than to point out that Prof essor Crawford had no answer to the fact that the

Chamber in Gulf of Maine most decidedly did not consider the equivalent “opposite” coasts on the

United States and Canadian sides should be delimited on the basis of strict equidistance. To the

contrary, the Chamber adjusted th e equidistance line between these coasts to take into account the

overall geographic relationship between the Parties’ coasts fronting the entire Gulf of Maine.

18. So how did Professor Crawford deal with th is precedent? First, by attacking Ukraine for

relying on it; and second, by attacking the Judgment of the Court itself in terms that even appeared

to catch Professor Pellet somewhat off guard. - 35 -

19. On Monday, Professor Crawford asserted that “Ukraine’s approach to the relevant coasts

issue comes down almost exclusively to the Gulf of Maine case, to which it clings as to a lifeboat in

stormy seas” (CR 2008/30, p. 28, para. 29): it is a nice image.

20. Ukraine considers that the Gulf of Maine case is an important precedent, and it is an

important precedent all the more so because it presen ts a number of similarities to the present case.

But Ukraine has also referred to other examples of the Court’s jurisprudence to support its position.

It was striking, for example, that, in his discu ssion of the relevant coasts, my distinguished

colleague made no reference to what we had to say about the Tunisia/Libya case. The Court will

recall Ukraine’s first round presentation where both Professor Quéneudec and I dealt with that case

and the Court’s treatment of the relevant coasts in that case at some length.

21. We pointed out that the Court made no distinction between “opposite” and “adjacent”

coasts in considering the Tunisian coast that was relevant to the delimitation. Nor did the Court

exclude the Gulf of Gabes as a relevant coast, or as forming part of the relevant area for

proportionality purposes, because it lay too far away from the delimitation area or pointed in the

wrong direction. The back of the Gulf of Gabes in Tunisia/Libya lay over 100 nautical miles away

from the delimitation line, considerably further away from that line than the Tunisian coasts to the

north and the south of the Gulf, but nonetheless, the Gulf was still treated as a relevant coast and as

part of the relevant area.

22. There has been no reply this week by the other side to that demonstration. Nor was there

any reply to our analysis of the relevant coasts in the Libya/Malta case, or in the

Nicaragua v. Honduras case, or to what we said about the Court of Arbitration’s treatment of

coasts in the Anglo-French Arbitration in response to Romania’s first round argument that there is

no third category of coastal relationships other than “opposite” or “adjacent” coasts.

23. Even ProfessorCrawford now seems to accep t that point that we demonstrated, for on

Monday, he stated: “It is also true that ther e are situations where coasts are obviously within a

delimitation area but cannot really be classified as adjacent or opposite.” (CR2008/30, p.27,

para.281.) That was precisely the point we were making in our first round. ProfessorCrawford

maintained that that is especially true for small islands, but he offered no demonstration to back up

that assertion, and it is one that is not consistent with the Court’s treatment of mainland coasts that - 36 -

were an issue in cases such as Tunisia/Libya or Nicaragua v. Honduras, or, indeed, with the

Chamber’s treatment of the mainland coasts of the parties in Gulf of Maine. ProfessorCrawford

then went on to try and distinguish Gulf of Maine on a number of different grounds. I would like to

take up those observations and comments of counsel for Romania in their rebuttal round but since

that really leads me into a discrete section of my pleading, Madam President, perhaps, if convenient

for the Court, we could break now.

The PRESIDENT: Yes, thank you, Mr. Bundy. The Court now briefly rises.

The Court adjourned from 4.25 to 4.35 p.m.

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

Mr. BUNDY: Thank you, Madam President, Members of the Court.

24. Now, on Monday, ProfessorCrawford chastised Ukraine for referring to the Gulf of

Maine case ⎯ or perhaps for referring to it too much. That did not prevent my learned friend from

embarking on quite a long discourse on the case, which I shall respond to. Professor Crawford also

forgets that it was Romania which relied on the case in its Memorial, and again, in its Reply, for its

discussion of which coasts should be considered rele vant coasts in the present case (MR, para. 9.4

and footnote 223; RR, paras.3.55-3.58). More over, it was Romania’s Memorial which cited the

passage from the Chamber’s Judgment in which it noted that “it is equally certain that a substantial

disproportion to the lengths of those coasts that resulted from a delimitation effected on a different

basis would constitute a circumstance calling for an appropriate correction” (MR, para. 8.61, citing

I.C.J. Reports 1984, p. 323, para. 185).

25. Earlier this week, Professor Crawford tried to distinguish Gulf of Maine from the present

case on a number of different grounds, and I would submit that none of these is persuasive.

26. Counsel first suggested that, unlike the Gu lf of Maine, the north-western basin of the

Black Sea is not regarded as a distinct entity and has no name of its own (CR2008/30, p.28,

para. 30 (a)). - 37 -

27. But questions of toponymy are irrelevant. It was not because the Gulf of Maine was

called the “Gulf of Maine” that the Chamber arrived at its particular delimitation line. That line

was the product of the geographical characteristics of the area being delimited.

28. For his part, ProfessorPellet asserted that the north-west corner of the Black Sea has

nothing to do with the Gulf of Maine, and he maintained that Ukraine’s counsel should be sensitive

to the differences that exist between the two si tuations, which he claimed were self-evident

(CR 2008/31, p. 39, para. 33).

29. But is it really so self-evident that the geographical situations in the two cases are so

different? Obviously, while no two cases are exactly alike, it is quite clear that the coastal

geography at issue in Gulf of Maine bears a much closer resemblance to the situation we have here

than the geography of any of the other cases that have been cited by our opponents. Let me recall

certain essential facts.

30. The Gulf of Maine is surrounded on three si des by the coasts of the parties to that case.

So, too, is the area of concern in this case surrounded on three sides by the coasts of the Parties.

Professor Crawford said that the Gulf of Maine is an “unusually well-defined entity” (CR 2008/30,

p. 29, para. 31 (a)), but the north-west corner of the Black Sea is an equally well-defined area, and

represents a discrete maritime area.

31. A number of Romania’s own maps specifically label this area as the “North-west part of

the Black Sea”, and circumscribe the coast s abutting the area as extending from the

Romania-Bulgaria land boundary all the way around to Cape Sarych. That can be seen, for

example, on maps26 and 38 to Romania’s own map atlas. It can also be seen on

ProfessorCrawford’s map that he showed in the first round, which was labelled “The

North-western Basin of the Black Sea”. That map is now on the screen ⎯ it was tabIV-2 from

Romania’s first round folders. The coasts of the “North-western Basin” shown on the map, as well

as on the other maps that I mentioned, are precisely the same coasts that Ukraine has shown to be

the “relevant coasts” in this case.

32. ProfessorCrawford suggested that the present case presents a novel question for the

Court. “How do you delimit a maritime boundary in a confined area when one party has longer

coasts?” (CR2008/30, p.23, para.13.) But that s ituation is hardly novel. It is similar to the - 38 -

situation that the Chamber confronted in the Gulf of Maine case where the delimitation also took

place in a confined area where one party had longer coasts.

33. My learned friend then argued that, outside the notional closing line of the Gulf of

Maine, the Atlantic coasts of the United States and Canada did not look into the Gulf. But so, too,

in this case, does the coast of Uk raine beyond to the east of Cape Sarych not look into the

north-west corner of the Black Sea and is not rele vant; nor does the coast of Bulgaria, beyond the

Romanian coast, or even the very southernmost parts of Romania’s coast itself, face on to the

north-west corner of the Black Sea. I fail to see the difference.

34. A further point raised by counsel was that the entrance to the Gulf of Maine was much

wider than it is deep (CR2008/30, p.29, para.31 (b)). Why that makes any difference was left

unexplained by my colleague (tab IV-14 to Romania’ s first round). Nonetheless, if a line is drawn

between the Romania-Bulgaria land boundary and Cape Sarych, which actually does represent the

natural limit to the north-west corner of the Black Sea, then that line, as you can see from the map

currently on the screen, is longer or the area cl osed wider than is the depth stretching up to

Ukraine’s south-facing coast, just as was the situation in the Gulf of Maine ⎯ it is at tab 12.

35. ProfessorCrawford did not approve of this closing line. But it is the same line that

Romania itself displayed at tab IV-14 of its first round folders to illustrate the relevant coasts. You

can see that the width of the area closed is 224nauticalmiles while the maximum depth to

Ukraine’s south-facing coast is about 150nauticalmiles ⎯ another similarity to Gulf of Maine .

Unlike Gulf of Maine, however, as I pointed out last week, Romania’s delimitation line crosses this

closing line at a point which is over 40km closer to Ukraine’s coast th an to Romania’s coast

despite the fact that Romania has a much shorter coast.

36. Counsel then offered some comments on the decision in Gulf of Maine itself

(CR 2008/30, pp. 29-30, para. 32).

37. His first point was that: “It is the decision of a chamber, not the whole Court.”

(Ibid., para. 32 (a).)

38. Was my colleague seriously contending that this Judgment rendered by a Chamber

carried less weight than delimitation judgments re ndered by the full Court? If so, he apparently

forgot to co-ordinate with Mr.Olleson who, s hortly after ProfessorCrawford spoke, relied on the - 39 -

Chamber’s decision in the Frontier Dispute for the probative value of maps (CR2008/30, p.59,

para. 17). Obviously, it is well known that Article 27 of the Statute of the Court provides that: “A

judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as

rendered by the Court.”

39. Professor Crawford then suggested that the Judgment in Gulf of Maine was “an outlier in

delimitation decisions”; it was the only occasion where a ratio of coastal lengths generated a

precise adjustment of a closing line ⎯ an operation which he characterized as “eccentric and even

fussy” (CR 2008/30, p. 29, para. 32 (b) and (c)).

40. What is eccentric, I would respectfully suggest, is to characterize a judgment of the Court

as “eccentric and fussy”. Was the Court’s recent decision in Nicaragua v. Honduras “eccentric”

because it used a bisector method instead of eq uidistance? Were the decisions in the Libya/Malta

and Jan Mayen cases “eccentric” or “fussy” because they used different methodologies for taking

into account a significant difference in coastal lengths? Why was the Gulf of Maine case

“eccentric”? Each case responds to its own facts and circumstances.

41. Indeed, the continued relevance of the Gulf of Maine case as an important precedent for

the proposition that material diffe rences in coastal lengths justify a shifting of the provisional

equidistance line is underscored by the fact that it has been cited with approval in both the

Jan Mayen Judgment and in the award in the Barbados/Trinidad and Tobago case. (See I.C.J.

Reports 1993, pp. 67-68, paras. 66 and 68; and the award in the matter of an Arbitration Between

Barbados and the Republic of Trinidad and Tobago, Award of 11 April 2006, para. 377.)

42. What was peculiar, on the other hand, w as Professor Pellet’s comment on the decision in

Gulf of Maine. While he correctly stated that the Chamber took into account a difference of 1.38 to

1 in the lengths of the respective parties’ coasts to adjust the equi distance line, he then went on to

assert that this adjustment was done to arrive at a ratio of 1 to 1 (CR 2008/31, p. 39, para. 33).

43. Now, where my distinguished friend came up with this account of the Chamber’s

reasoning is a mystery. No citation to the Judgment appears in the transcript, probably for the

reason that none exists. Nowhere in the Judgment will any reference to an adjusted 1 to 1 ratio be

found. - 40 -

2. The northern coasts

44. Madam President, Members of the Court, following Professor Crawford’s south to north

tour of the relevant coasts, I now move to the north ern coasts of the Parties. Let me start with the

coasts of the Parties lying in the vicinity of the land boundary that Romania regards as the

“adjacent coasts” of the Parties.

[Tab II-6 to Romania’s 15 September folder]

45. The map on the screen is another figure that Romania has produced and it depicts what

Romania considers to be the relevant coasts to the north and south of the land boundary. I would

suggest that two points stand out.

46. First, even under Romania’s thesis, Ukraine’ s coast up to “point S” is some three times

longer than Romania’s coast from the land boundary to the Sacalinpeninsula. Yet that marked

difference in coastal lengths is given no effect by Romania. Nor is the fact that Ukraine’s coastal

front in this area faces in a south-east direction ⎯ nor is that taken into account. The projection of

that coast is cut off by Romania’s claim.

47. Secondly, north of “point S”, Ukraine’s co ast maintains virtually the same orientation or

general direction as it has south of “point S”. Yet that does not prevent Romania from positing an

arbitrarily-named “pointS” as the start of a new segment of Ukraine’s coast that Romania

considers to be irrelevant. There are no grounds for excluding Ukraine’s coast north of “point S”

or for treating “pointS” as having any relevance at all. It is another member of Romania’s

collection of alphabet points that has no underlying rationale.

48. ProfessorCrawford seemed to think that the Jan Mayen case provides support for

Romania’s elimination of Ukraine’s coast beyond “pointS”. And he referred once again to

Jan Mayen on Monday (CR 2008/30, p. 28, para. 28).

49. Now, Ukraine’s Rejoinder had contained a really quite thorough analysis of the Court’s

treatment of the relevant coasts in the Jan Mayen case and why that treatment was wholly

inconsistent with Romania’s attempts to suppress Ukraine’s coast beyond “point S”. And I would

refer the Court respectfully to paragraphs 4.28 to 4.32 of the Rejoinder. We have been correctly

reminded not to repeat arguments that appear in th e written pleadings, so I will not do so and I will

not rehearse the arguments made there, particular ly since they have been totally ignored in - 41 -

Romania’s pleadings. Romania continues to cite the case in its support but it fails to take into

account the fact that in the south, in the Jan Mayen case, Greenland’s relevant coast was limited to

that part of the coast that did not face a third State ⎯ Iceland ⎯ or the areas encompassed by

Iceland’s 200-nautical-mile claims. In the north, the relevant coast of Greenland stopped at a point

where its 200-mile extension intersected with JanMayen’s 200-mile projection and with an

unadjusted median line. And that reasoning, as articulated in the Court’s Judgment, in no way

supports Romania’s effort to suppress long stretches of Ukraine’s coast in this case.

50. I now come to Ukraine’s south-facing coast between Odessa and Cape Tarkhankut.

51. The gist of both ProfessorCrawford’s and ProfessorLowe’s arguments for not

considering this stretch of Ukraine’s coast is that it is “eclipsed” by other parts of Ukraine’s coast.

Professor Crawford said, “it competes with other and much closer Ukrainian coasts” (CR/2008/30,

p. 31, para. 40). Professor Lowe put it this way:

“Ukraine’s northern coast is not squeezed out by Romania’s coasts. Its
maritime zones do not overlap with Romani a’s maritime zones. They overlap with

Ukraine’s maritime zones, and it is Ukraine’s western and eastern coasts which
squeeze out, or eclipse, the effect of Ukra ine’s northern coast.” (CR2008/31, p.49,
para. 35.)

52. Both ProfessorCrawford and ProfessorLowe projected the same graphic to illustrate

their argument. It is now being placed on the screen [tab IX-7 to Professor Lowe’s 16 September

speech]. This graphic was designed to show the so-called “squeezing effect” that Ukraine’s

south-facing coast is said to suffer at the hands of its south-east and west-facing neighbours.

53. The first comment I would make is that our opponents have been unable to cite a single

authority for the proposition that, when part of a party’s coast is allegedly “eclipsed” or “squeezed”

by another part of its own coast, that part of th e coast is no longer to be considered as a relevant

coast. There is no support for such a theory.

54. In contrast, there is legal authority rejecting that appro ach. And, in particular, I refer to

the Tunisia/Libya and Gulf of Maine cases.

[Map of Tunisia-Libya]

55. Here is Libya: and here is Tunisia-Libya. Under Romania’s reasoning, the “eclipsed” or

“squeezing” theory, in Tunisia/Libya the entire Gulf of Gabes should have been “eclipsed” or

“squeezed” by the Tunisian coasts lying much closer to the area where the delimitation line fell ⎯ - 42 -

namely, the Tunisian coast along the island of Djerba in the south, and the mainland coast of

Tunisia north of Ras Yonga, including the Kerkannah Islands, in the north.

56. Using Romania’s “wave theo ry”, the waves created within the coasts within the Gulf of

Gabes should have been cut off by corresponding waves projecting from Djerba and from the coast

from Ras Yonga northwards. But the Court, in that case, in no way endorsed such an approach. As

Ukraine has pointed out ⎯ and it is a point that Romania never addressed— either its first or

second round of pleadings ⎯ the Court treated the entire Gulf of Gabes coast as a relevant coast

and the whole area within the Gulf as part of the relevant area. It was not “eclipsed” or “squeezed”

off.

[Map of Gulf of Maine]

57. The same approach was adopted by the Chamber in the Gulf of Maine case with respect

to the Bay of Fundy. Its coasts were not “eclip sed” or “squeezed” out of the delimitation equation

by other parts of the Canadian coast facing onto the Gulf of Maine. To the contrary, much of the

coast of the Bay of Fundy was considered by th e Chamber to form part of the Gulf of Maine

proper, and was taken into account as a relevant co ast when adjusting the equidistance line further

out to sea.

58. It is not that the projection of Ukraine’s south-facing coast gets eclipsed by other parts of

Ukraine’s coast. Rather, the projection from Ukraine’ s coast on all three sides of the relevant area

all proceed seawards. They add to and complement each other.

[Wave map on screen)

59. This can be seen from the map that is now going to be displayed on the screen: it is —

the cumulative effect of it is in tab 13 ⎯ but I will take you though it in stages. First, we have the

projection from Ukraine’s south-facing coast. [Add to map] Next, we have the projection from

Ukraine’s south-east facing coast. [Add] And thir d, we have the projection from Ukraine’s coast

along the Crimea. [Add]

60. Each of these projections does not magically stop when it meets the projection from

another coast, any more than Ukraine’s overall maritime entitlements stop when they meet those of

Romania. To use words that have often been em ployed by the Court, th ese entitlements meet and

overlap. - 43 -

61. That is what happens to the projection from Ukraine’s south-facing coast. It meets and it

overlaps with neighbouring projections thus re inforcing the overall effect. And it is this

phenomenon which led ProfessorQuéneudec to ob serve last week that Ukraine has the

predominant, or the more intense, coastal geographic position along this part of the Black Sea.

62. ProfessorLowe stated on Tuesday that, in Romania’s view, “one must ask, not what

segments of coasts could generate an entitlement to a maritime zone at any given point in the

waters adjacent to the two States, but rather, what segments of coast do generate the entitlement at

any given point” (CR 2008/31, p. 50, para. 43).

63. That was certainly not the way the Court analysed the relevant coasts in Tunisia/Libya or

the way the Chamber took into account the coastal geography in Gulf of Maine. As I have said, in

both cases, the coasts of the Gulf of Gabes and the Bay of Fundy respectively could, and did,

generate maritime entitlements, and they were thus taken into account. And the same applies to

Ukraine’s south-facing coast. It faces an area sole ly relevant to delimitation with Romania, not to

third States which lay far to the south, unlike, fo r example, the parts of Libya’s coast that faced

Malta, or of Tunisia’s coast that faced Italy, and which were therefore not considered relevant in

that case.

64. The same considerations also undermin e Romania’s attempt to do away with the

Karkinits’ka Gulf for delimitation pur poses. And, once again, both the Tunisia/Libya and Gulf of

Maine cases run counter to Romania’s arguments. As the Chamber emphasized in the Gulf of

Maine, and I quote from the Judgment:

“In this respect, the Chamber wishes to emphasize that the fact that the two
coasts opposite each other on the Bay of Fundy are both Canadian is not a reason to

disregard the fact that the Bay is part of the Gulf of Maine, nor a reason to take only
one of these coasts into account for the purpose of calculating the leng
th of the
Canadian coasts in the delimitation area.”

And the Chamber continued, specifically citing the Gulf of Gabes example from Tunisia/Libya:

“There is no justification for the idea that if a fairly substantial bay opening on
to a broader gulf is to be regarded as part of it, its shores must not all belong to the

same State.” ( Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 336, para. 221.)

65. The same considerations apply to the Kark inits’ka Gulf. It forms part of the north-west

basin of the Black Sea and it, too, constitutes part of Ukraine’s relevant coast. - 44 -

66. MadamPresident, Members of the Court, that concludes what I wish to say about the

relevant coasts of the Parties. Ukraine believes that it has shown in a convincing, and legally

supported, manner why all of its coasts fronting this part of the Black Sea should be considered to

constitute relevant coasts for the present delimitation.

B. The Sulina dyke

67. I would now like to turn very briefly to a few issues concerning the Sulina dyke on which

so much of Romania’s case depends. ProfessorQu éneudec will have more to say about the dyke

tomorrow, but for my part, I need to rectify a num ber of errors that counsel for Romania made in

their second round pleading relating to the dyke and to its role in the delimitation process.

68. Let me start with Mr. Müller’s presentation. In an effort to buttress Romania’s reliance

on the Sulina dyke as a base point for the majori ty of its equidistance line, Mr.Müller made

references to examples where harbour works have been given effect for maritime delimitation

purposes.

69. First, Mr. Müller referred to the Sharjah/Dubai arbitration for the proposition that there

is a body of practice in which full effect has been given to harbour works (CR2008/30, p.70,

para.15). The Court will recall that I discus sed the role that harbour works played in

Sharjah/Dubai at some length during my intervention last Thursday (CR2008/28, p.30,

paras. 14-16).

70. I recalled that what was at issue in that case were the harbour works of both parties.

Those installations were much wider than the Su lina dyke (3,000m versus 150m), and projected

much less far out to sea than the dyke. As was noted in the Award itself, use of both parties’ ⎯

both Sharjah and Dubai’s harbour works ⎯ had only a very slight effect on the equidistance line, in

contrast to the situation we have here regarding the huge effect that the Sulina dyke has on

Romania’s equidistance line.

71. My colleagues on the other side of the Bar had no reply to this description of the actual

situation in Sharjah/Dubai.

72. Instead, Mr.Müller cited two examples of State practice which I can only assume he

believes support Romania’s case. - 45 -

73. The first involved the harbour installati ons down the coast at Zeebrugge in Belgium,

which Mr.Müller asserted had a noticeable infl uence on the delimitation line agreed between

Belgium and theNetherlands. He quoted fro m Article2 of the 1996 Netherlands-Belgium

delimitation treaty to support his point (CR 2008/30, p. 71, para. 16).

74. The part of Article2 which Mr.Müller cited now appears on the screen in the English

translation that was helpfully included in the transcript. This is the part that Mr. Müller cited:

[Place quote on screen]

“The boundary, consisting of the points listed in article 1, is based on the
principle of equidistance from a maximum base line, namely the low water mark along

the shoreline. Account has been taken of the seaward extension of the port of
Zeebrugge in Belgium . . .” (CR 2008/30, p. 71, para. 16).

75. Regrettably, my colleague elected not to read the remainder of Article2 of the Treaty,

and the phrase he omitted is now being added to th e quote on the screen [add in red]. As the Court

will observe, the second sentence of Article2 actua lly reads in its entirety: “Account has been

taken of the seaward extension of the port of Zeebrugge in Belgium and the “Rassen” shallows off

the coast of the Netherlands.”

76. That is an important omission [project map of delimitation]. As you can see from the

map appearing on the screen ⎯ it is a map of the delimitation area (tab14) ⎯ “Rassen” is a

low-tide elevation lying about the same distance off the coast of the Netherlands as the port

installations at Zeebrugge extend into the sea off the coast of Belgium. Both features were taken

into account in the delimitation and obviously ha d a kind of “balancing effect”. Mr.Müller

overlooked this key point.

77. My colleague also gave a truncated analysis of the use of the Zeebrugge harbour works

for the delimitation agreement between Belgium and the United Kingdom [project map on screen]

(tab14). Once again, here is a map of that ag reement. Counsel failed to point out that, on the

United Kingdom side of the boundary, a low-tide elevation called Long Sand Head ⎯ which was

located about 11.7 nautical miles out to sea ⎯ was also given an effect for purposes of establishing

the delimitation line. So, in both examples cite d by Mr.Müller, it was not the harbour works

standing alone that were given weight for delimitation purposes; low-tide elevations on the other

side were too. In these circumstances, one wonders why a full-fledged island ⎯ such as Serpents’ - 46 -

Island ⎯ should not have any effect for continental shelf and EEZ delimitation purposes, as

Romania contends.

78. The other matter I need to deal with con cerns the effect that the Sulina dyke has on

Romania’s provisional equidistance line. As we point ed out last week, use of a base point at the

end of the dyke controls some 160 km of Romania’s equidistance line, and we also showed that use

of the dyke has a huge effect on Romania’s line.

79. It was suggested by Professor Lowe on Tuesday that Romania did not actually draw its

equidistance line from the tip of the dyke but from th e lighthouse that is almost at the end of the

dyke (CR 2008/31, p. 53, para. 56). That is not what Romania’s written pleadings say, and it has

not been demonstrated by the other side durin g these oral proceedings. At two places in its

Memorial, Romania expressly states that “on the Romania coast only one point is relevant to

construct the equidistance line: the outer (exter nal) end of the Sulina dyke”. That comes from

Romania’s Memorial at paragraph 11.65; a similar statement is made in its Reply (RR, para. 8.31).

80. More importantly, however, ProfessorLowe accused Ukraine of having miscalculated

the effect that the Sulina dyke has on Romania’ s equidistance line (CR2008/31, p.19, para.38).

[Place Romania’s “corrected” map on screen.]

81. ProfessorLowe displayed ⎯ I think it was on Tuesday ⎯ the map you now see on the

screen. He said that Ukraine’s red line ⎯ representing the effect of the dyke ⎯ “appears to have

been calculated using a baseline some way inland from the natural coast of Sulina” (ibid.). He then

claimed that if the furthest point on the natural coast ⎯ that is the natural coast of Romania ⎯ is

used, the “true equidistance line”, which is what he termed it, is that shown in yellow on this chart,

and “it has significantly less effect on the eq uidistance line than Ukraine has claimed”

(CR 2008/31, pp. 19-20, para. 38). That was Professor Lowe’s contention.

82. My response is as follows.

83. First, Professor Lowe made no demonstration at all to back up his argument that Ukraine

had not used the natural coast of Romania as a base point, but rather that Ukraine had used a

baseline some way inland. He simply asserted it ⎯ there was no showing of this ⎯ and he did not

show the control points for Romania’s new yellow line. - 47 -

84. Nonetheless, after ProfessorLowe’s interven tion, we were concerned, so we went back

and we checked this point very carefully on Tuesd ay evening. The results of that checking show

that Professor Lowe is mistaken, and that Romania’s yellow line is wrong.

[Photo of base points)

85. Now being displayed on the screen are the base points on the Parties’ natural coasts that

should be used if the Sulina dyke is ignored (tab 15). The Court will see that we have used the very

seawardmost point on Romania’s natural coast that juts into the sea ⎯ not some point back, as

Professor Lowe intimated. This is the point wh ere the land ends. This also shows Ukraine’s

corresponding base point. A close-up photo of these points can now be seen on the screen; each of

the respective base points. [Close-up photo]

86. Using these base points, Ukraine’s experts then plotted the equidistance line between

them. That line adopts an azimuth of 116°, as you can see on the screen [slide] (also at tab 15).

87. If that azimuth is then projected out to sea, as shown by the green line now on the map

[new map], it can be seen that, if anything, Ukraine slightly underestimated the effect of the dyke

on Romania’s equidistance line. The green line falls slightly south of the red line.

88. Romania’s yellow line has no basis whatso ever. Where it came from is a matter of

complete speculation, given that Professor Lowe provided no details as to how it was constructed.

89. What is clear–– Ukraine said this before a nd will say it again–– is the effect that this

long, thin man-made structure has on Romania’s e quidistance line is very, very large and grossly

disproportionate when the dyke is compared to Serpents’ Island, which Romania persists in

ignoring.

90. At the end of the day, and despite Romania’s attempt to build up the importance of the

Sulina dyke, our opponents have s till not been able to explain why it is equitable to accord a

man-made structure consisting of two low, thin stone embankments, about 150m apart, jutting

7.5 km long, a full effect for the delimitation of the continental shelf and exclusive economic zone,

while a much larger natural island should receive no equivalent treatment.

91. Madam President, Members of the Court, that concludes what I wish to say at this stage

with respect to the coastal geography and I would be grateful if the floor could now be given to

Ms Malintoppi. Thank you very much. - 48 -

The PRESIDENT: Thank you, Mr. Bundy, and we now call Ms Malintoppi.

Ms MALINTOPPI: Thank you, Madam President, Members of the Court.

IV. PETROLEUM AND COASTGUARD ACTIVITIES , OMANIA ’S ENCLOSED SEA /REGIONAL
PRACTICE ARGUMENTS AND THE NATURE AND CHARACTERISTICS

OF S ERPENTS ’ SLAND

Introduction

1. Madam President, Members of the Court, this afternoon I shall respond to three aspects of

Romania’s second round oral arguments: first, Ro mania’s contentions relating to the Parties’ oil

and gas activities and Ukraine’s coastguard operations; second, Romania’s remarks on the effect

for this delimitation of the enclosed or semi-e nclosed nature of the BlackSea and the limited

regional delimitation practice in that sea; and, third, Romania’s position on the nature and

characteristics of Serpents’ Island.

A. Romania’s contentions with respect to petroleum and coastguard activities

2. First, I will deal with the contentions made by Romania with respect to petroleum and

coastguard activities.

3. The first general observation that can be made with respect to the Co-Agent’s presentation

on Monday is that he glossed over a number of points that I raised in my speech on this subject

during Ukraine’s first round presentation, or simply repeated allegations already made by Romania

in the first round.

4. A good example concerns Ukraine’s arguments that Romania’s conduct in the disputed

area was totally inconsistent with the claim it now a dvances before the Court. In this respect, the

Co-Agent limited himself to presenting a variation of the arguments already made in his first round

speech. In response to Ukraine’s statements that Romania’s activities in the area tend to confirm

the absence of any pre-existing delimitation agre ement around Serpents’Island, or extending to

“pointX”, Romania’s Co-Agent contended that the concessions awarded by Romania after 1990

are not the only State activities carried out by Romania in the disputed area. He stated that there

55CR 2008/30, p. 37, paras. 13-15. - 49 -

are areas of Romanian “exploration activities” which overlap the area in dispute and are consistent

with Romania’s claims 56. These arguments were based on the sketch showing seismic profiles that

had been filed as figureRR26 of Romania’s Reply, and on independent studies produced for the

first time during these oral hearings.

5. We have already discussed figure RR 26 and ther efore I will not revert to it again. As to

the studies, Romania’s Co-Agent affirmed that they are as “authoritative and independent” as the

57
Petroconsultants map produced by Ukraine . However, this is not the point. First of all,

Petroconsultants –– which is now called HIS Energy af ter a corporate restructuring –– is one of the

leading companies providing data on oil and gas exploration activities and production.

Marine Geology, the journal that published the studies produced by Romania, is an academic

journal, which ⎯ however reputable ⎯ is a scientific publication dealing with the fields of marine

geology, geochemistry and geophysics. Clearly , Petroconsultants is a more reliable source of

information when it comes to the hydrocarbon industry and oil exploration and exploitation

activities.

6. Moreover, Romania continues to rely on secondary sources and not on its own records,

which ought to be Romania’s primary source of information and which thus should have been

produced before the Court. It is equally telli ng that not a word was said by our distinguished

opponents in trying to explain this silence or to disprove that Romania did award the Pelican,

Istria, Midia and Neptun blocks in the form depicted in the Petroconsultants map.

7. But let us look at the studies on which Romania bases its allegations. As I said, they were

published in the journal Marine Geology in 2000, 2004 and 2007. Incidentally, the studies have

not been produced by Romania in their entirety and the last two are only accessible by subscription.

8. The first study, published in 2000, is the result of a joint effort by Romanian, German and

Russian institutes of marine geology and geophysics. It concerns the Upper Quaternary water level

history and sedimentation in the north-western Black Sea 58.

56
CR 2008/30, p. 39, para. 20.
57
CR 2008/30, pp. 37-38, para. 17.
58CR 2008/30, p. 38, para. 18. - 50 -

9. The seismic profiles were apparently carried out by research cruises conducted in 1992,

1993 and 1994. The study mentions that data of industrial seismic profiles concerning surveys

conducted in 1970-1971, 1981-1988 and 1994, were ma de available by two Romanian companies.

It also refers to two drill holes, Ovidiu and Heraclea. However, there are no details regarding the

industrial seismic profiles allegedly conducted by Romanian companies and, particularly for those

conducted prior to Ukraine’s independence, there is no way of knowing anything about the

circumstances in which they were carried out, or, for instance, whether they were jointly carried out

by Soviet and Romanian companies. As to the drill holes, they do not appear to have been drilled

for oil exploration activities since the depths of the wells cited in the study only descend as far

59
as 300-600 m, and are thus insufficient for oil exploration or exploitation .

10. The next two studies were only mentioned by Romania earlier this week. The second

study, published in 2004 by a Franco-Roman ian group of scientists and university professors,

concerns, as the title indicates, the Danube s ubmarine canyon: morphology and sedimentary

processes 60. The study, the nature of which again is purely academic, mentions that the Romanian

company Petrom provided ten industrial seismic lines, but this is the same data from 1994 referred

to in the previous study from 2000.

11. Romania’s Co-Agent, in fairness, only ta ngentially mentioned the third study, published

in 2007, although he appears to have referred to it as a joint Franco-Romanian effort, while it was

61
apparently conducted by French scientific institutions only . It is a study of the Messinian

erosional surface in the Black Sea. A fascinati ng topic, no doubt, but the study does not indicate

that the research was conducted for oil exploration purposes or that oil companies were in any way

involved.

12. Consequently, these studies do not even co me close to showing any oil exploration

activities by Romania that have any relevance to its claim line.

13. Romania’s Co-Agent reproached me for having allegedly made two factual mistakes:

the first because I stated that “a number” of the Ukrainian licences were awarded before the

59The holes are represented at fig. 8, p. 139.
60
CR 2008/31, p. 38, para. 19.
61Ibid. - 51 -

Exchange of Letters was c oncluded, when only one, the Delphin block, was, and the second

because I said that the co-ordinat es of the area in dispute were never established following the

62
1997 Exchange of Letters .

14. Romania’s Co-Agent must have misread the transcript, because what I stated, in the first

respect, was that “a number of th e licences which I discussed earlier ( such as the Ukrainian

Delphin block, and, according to Romania, the Romanian blocks )” were awarded before the 1997

63
Exchange of Letters . Clearly, I was not limiting my statement just to the Ukrainian blocks, but I

was referring to both Ukraine’s and Romania’s lic ences. In the second respect, as to the second

factual error I would have made, once again, I a ppear to have been misunderstood because, while

the claims of the Parties, as they stoo d at the time, may have been known, the co-ordinates of the

delimitation zone were never agreed by the Parties as anticipated in the Exchange of Letters.

15. Romania’s Co-Agent also objected to my counting only two Romanian protests to

Ukraine’s oil and gas activities when ⎯ he stated ⎯ there was correspondence addressed by

64
Romania to Ukraine from 2001 to 2006 . But in that 2001-2006 correspondence, Romania only

objected to Ukraine’s presumed exploitation activities that it argued were in violation of the

1997Exchange of Letters, not its exploration ac tivities. Ukraine responded to these letters, as

documented in our written pleadings 65, and clearly stated that these operations did not come within

the definition of “exploitation of mi neral resources” under paragraph4 (f) of the Exchange of

Letters. It is telling that Romania’s letters did not object to Ukraine’s activities because they were

being carried out in maritime areas that had been previously delimited by the

1949Soviet-Romanian Agreement. It is also not eworthy that apparently Romania for a moment

lost sight of the critical date that it itself set at 1997 ⎯ well before the first of these letters was sent.

16. But the critical date resurfaced again wh en Romania’s Co-Agent turned to Ukraine’s

coastguard activities. In fact, little attention w as paid to this subject, apart from a three-line

comment that Ukraine’s surveillance operations in the disputed area should be disregarded because

62CR 2008/31, p. 35, para. 5.
63
CR 2008/28, p. 32, para. 35.
64
CR 2008/30, pp. 40-41, para. 26.
65RU, pp. 123-125, paras. 6.86-6.91. - 52 -

66
they were conducted after the critical date . Otherwise, Romania’s Co-Agent made no attempt to

respond to our arguments that Romania’s inactivity , and its silence in the face of Ukraine’s

assumption of responsibility in respect of coastguard operations in the disputed area, fundamentally

undermine its allegation that there was already an agreed delimitation in this area.

W 17.t was said by our distinguished opponents in this respect was actually more in tune

with Ukraine’s position than Ro mania’s. It did not come from the Co-Agent, but from

Professor Lowe. He made an extraordinary admission during his speech on the equitableness of the

Parties’ proposals, when he sought to rebut Mr.Bundy’s statement that only Ukraine policed the

disputed waters. Professor Lowe stated: “But if the waters were acknowledged to be Romanian , it

is Romania that would be policing them, to the ex tent that activity in that area of the sea requires

policing.” 67 In other words, MadamPresident, even counsel for Romania admits that Romania’s

theory of a pre-existing maritime delimitation agre ement is pure fiction. If the waters were

acknowledged by Romania to be Romanian by virt ue of a pre-existing boundary dating from 1949,

why was Romania not then policing the area? Professor Lowe offered no explanation.

18. With respect to the critical date, Romani a’s Co-Agent wished to clarify an incorrect

statement that I apparently made, namely, that Roma nia set the critical date at 1997. He said that

Romania’s Reply actually stated that the 1997 Additional Agreement was “at the latest” the critical

date in relation to this case, and not ⎯ as I noted ⎯ the critical date for Romania 68. Actually, for

the record, the Reply did state that 1997 was the critical date, and it did so precisely in relation to

the discussion of the Ukrainian licensing practice. The relevant passage reads as follows: “the

69
Ukrainian licensing practice has developed only recently, well after the critical date ⎯ 1997” .

70
19. To be precise, Ukraine’s first licence ⎯ the Delphin block ⎯ dates back to 1993 . But,

in any event, Romania’s treatment of the critical da te in this case reveals its concern to do away

with Ukraine’s activities that pose a threat to Romania’s case: the petroleum activities and

66CR 2008/30, p. 41, para. 28.

67CR 2008/31, p. 52, para. 47.
68
CR 2008/30, p. 36, para. 11.
69RR, p. 250, para. 7.13.

70CR 2008/28, p. 26 para. 10. - 53 -

coastguard operations, and Ukraine’s administra tive acts regarding Serpents’Island. The

self-serving nature of this exercise is apparent.

20. When our opponents deal with the criti cal date, they put the emphasis on the word

dispute and appear to forget that the critical date is the date at which the dispute can be said to have

crystallized, or, to use the words of the Chamber in the Frontier Dispute, when the clock stops

(Frontier Dispute (Burkina Faso/Republic of Mali), Judgment I.C.J.Reports1986 , p.568,

para. 30). In other words, the critical date is th e date upon which the Parti es’ positions have been

expressed with sufficient precision so that it can be said that a dispute has crystallized. When, like

in the present case, the Court is called upon to delimit a maritime boundary line, it can be more

difficult to identify a critical date than territorial disputes. This is all the more problematic in a

situation, such as the present one, where different positions may have been advanced by the parties

in the course of prolonged negotiations, and introduced even as late as in the proceedings in this

case. Moreover, whenever the critical date may be in this case, Ukraine’s recent conduct cannot be

interpreted as an attempt to improve its lega l position because it represents the continuation of

previous State activities.

21. In the circumstances, it would be incorrect, in our submission, to fix the critical date at

1995, or even 1997, because ⎯ as I already stated in the first round 71⎯ until 1997 the Parties had

not even agreed on the principles for the conduct of the negotiations , let alone defined their

respective claims and positions.

22. That is why Ukraine suggested that it w ould be more appropriate to fix the critical

date ⎯ assuming that the Court decides that it can play a role for delimitation purposes ⎯ at 2004,

a year which is doubly significant for this case. Because, it is both the date on which Romania

introduced the dispute before the Court, and the date of the entry into force of the 2003 Treaty

fixing the State border between the Parties and the starting-point of the maritime delimitation

which the Court is called upon to establish.

71
CR 2008/28, p. 25, para. 6. - 54 -

B. Romania’s arguments on delimitation agreements in the Black Sea

23. I will deal next with Professor Pellet’s arguments on other delimitation agreements in the

Black Sea.

24. On Tuesday, Professor Pellet referred to delimitation practice elsewhere in the Black Sea

in an effort to show that these agreements “confirm” the equity of Romania’s claim line 72.

25. As part of his demonstration, my frie nd ProfessorPellet displayed the graphic that you

now see on the screen and which is also at tab 16 7. Not only did Professor Pellet speculate as to

the location of future maritime boundaries on this map ⎯ they are depicted by blue lines between

Russia and Ukraine, Romania and Bulgaria, and Romania and Ukraine ⎯ but he also superimposed

red lines which he characterized as the delimita tion lines that would have resulted if Ukraine’s

methodology in this case were to be applied to other boundaries.

26. Once again, our colleagues on the other side persist in arbitrarily drawing lines on maps

without the slightest justification or explanation as to how they were constructed.

27. Nevertheless, Professor Pellet’s map is helpful in one respect. For it shows very clearly

the difference between the geographic characteristics of the north-west corner of the Black Sea and

the rest of the sea.

28. Let me take the situation between Ukra ine and Turkey where Professor Pellet has drawn

a red line north of the actual boundary agreement line. Although he offered no explanation as to

the basis on which this red line was constructed, it must be supposed that my friend was assuming

that the relevant Turkish coast was longer than the corresponding Ukrainian coast.

29. Any such notion is clearly wrong. On the east, and using the coastal control points

governing the endpoint on ProfessorPellet’s blue line representing his imaginary delimitation

between Ukraine and Russia, it can be seen that th e coast of Turkey relevant to the delimitation

with Russia is approximately the same length as the corresponding Russian coast. [Add black line

from Turkish coast to Russia/Turkey/Ukraine tripoints.]

72
CR 2008/31, pp. 29-30, para. 17.
73Tab VIII-3 to Romania’s second round folders. - 55 -

30. On the west, the relevant Turkish coast for purposes of delimitation with Bulgaria can

also be identified and is similar in length to Bulgaria’s coast. [Add further black line to

Bulgaria/Turkey/Ukraine/Romania point.]

31. That leaves the middle ⎯ the stretch of Turkey’s coast between the two black lines ⎯ in

other words, the relevant Turkish coast facing Ukraine. Here, it can be seen that the relevant coasts

of Ukraine and Turkey are virtually the same in length. Hence, a median line delimitation.

32. In contrast, Madam President, the north-west corner of the Black Sea is entirely different.

Here, we have an area surrounded on three sides by the coast of one State ⎯ Ukraine. We also

have a substantial difference in the lengths of the coasts of the Parties militating against the

application of strict equidistance. And we have an island ⎯ Serpents’ Island. These factors are

simply not present elsewhere in the Black Sea.

C. The nature and characteristics of Serpents’ Island

33. I shall now reply to Romania’s remarks with respect to the nature and the characteristics

of Serpents’ Island.

34. First, I note that our distinguished opponents have shown remarkable restraint ⎯ to use

an understatement ⎯ in dealing with Romania’s proposals at the Law of the Sea Conference. Very

little was said in this regard by counsel for Romania, except for a few words by ProfessorLowe

who recalled that Romania made various proposals, remained active in negotiations and sought

unsuccessfully to include a provision in the Convention dealing “with Serpents’ Island’s

situation” 74. He added that it should not be surprising that Romania sought the addition of a “wider

provision, perhaps anticipating the ingenious attempts of Ukraine to extract itself from

Article 121 (3)” 75.

35. However, not a word was spent in orde r to rebut Ukraine’s argument that Romania’s

position at the Conference is fundamentally inconsistent with its present position that ⎯ to quote

Professor Lowe ⎯ “there is a binding agreement between th e Parties as to how [Serpents’] Island

will be dealt with” 7.

74CR 2008/31, p. 16, para. 28.
75
Ibid.
76CR 2008/31, p. 16, para. 29. - 56 -

36. Accordingly, Ukraine’s argument that Romania’s conduct at the Conference confirms

that there was no binding agreement between the Parties delimiting a 12-nautical-mile arc around

Serpents’ Island stands unanswered. If the questio n of “how the Island will be dealt with” had

already been settled by a “binding agreement”, as Romania has asserted with great confidence, why

was Romania so set on trying to carve out a special ré gime for islets and islands similar to islets at

the Conference? Why was it necessary to anticipate Ukraine’s “ingenious attempts to extract itself

from Article 121 (3)” if a régime for Serpents’ Isla nd had already been established with a “binding

agreement”? These key questions remain unanswered by Romania.

37. As to the declaration made by Romania at the time of signature and ratification of the

Law of the Sea Convention, we have heard nothing new from our Romanian colleagues in response

to Ukraine’s first round presentation.

38. Romania insists that Ukraine should have objected to Romania’s declaration and largely

ignores Ukraine’s arguments. ProfessorLowe repeated that inferences could be drawn from

Ukraine’s failure to object to Romania’s declara tion. But, MadamPresident, what could such

inferences be and why should they be drawn? As Romania acknowledges, there was no legal

obligation for Ukraine to react, a nd Romania’s declaration could not have any effect for Ukraine.

The declaration was all that was left after Ro mania had failed to win support for its various

proposals regarding the effect of small islands. It was a unilateral interpre tative declaration and,

under the express terms of Article310, it “could not purport to exclude or to modify the legal

provisions of the Convention”.

39. With respect to Serpents’ Island’s phys ical characteristics and its capacity to sustain

human habitation or economic life of its own, in the first round Ukraine chose ⎯ unlike our

opponents ⎯ not to inflict upon the Court a long litany of excerpts from historical or literary works

on the Island. Instead, we preferred to refer b ack to the documentary evidence submitted with our

written pleadings. However, in order to respond to Romania’s Agent’s a llegation that Ukraine

77
failed to address “the large amount of evidence displayed” , it is now appropriate to recall briefly

some of the more salient facts that emerge from the record, the references to which will appear in

77
CR 2008/30, p. 14, para. 13. - 57 -

the transcript, and which attest to Serpents’ Island’s capacity to sustain human habitation or

economic life of its own.

⎯ Under the name of Leuke, Serpents’ Island was reported by ancient accounts since the seventh

century B.C. to have hosted a temp le devoted to the cult of Achilles. 78 Serpents’ Island was

well known to seafarers coming to worship at th e temple; some ancient authors, such as

79
Arrian, state that an oracle resided on the island. It also appears that the priest who tended to

the cult of Achilles lived on the island, and was accompanied, at intervals of time, by

attendants. 80 Antique coins from a number of different countries were found on the island,

testifying to its widespread reputation, and that people of various nationalities, even in

81
antiquity, visited the island.

⎯ In Roman times, Serpents’ Island was an outpost of the Roman Empire in the Black Sea region.

82
Ceramic artifacts and coins testify to the Roman presence.

⎯ With the collapse of the Roman Empire, the te mple on Serpents’Island lost its religious

significance and, although ships continued to visit the island, there is not much mention of it

until the Middle Ages when it also was consistently depicted as a prominent island on maps

83
and geographic guides .

⎯ In 1837, Russia began building a lighthouse, the construction of which was completed six years

later, in 1843 –– I have shown pictures of the lighthouse, last week 84. It was ⎯ and still is ⎯

85
manned .

⎯ Also in the nineteenthcentury, the island hos ted Russian quarantine commissions who also

conducted archaeological surveys on the island during their stay, which lasted for ten years,

78
CMU, Anns. 48, 52, 56, 57.
79
CMU, Ann. 52.
80
Ibid.
81CMU, Ann. 57.

82CMU, Ann. 52.

83Ibid. See also, Romania’s map atlas, maps RM A1-RM A6.
84
CMU, Ann. 57.
85
See, for instance, CMU, Ann. 10. - 58 -

from 1841 to 1851, when the quarantine post was closed 86. After Russia’s defeat at the end of

87
the Crimean War, the island was transferred to the Ottoman Empire .

88
⎯ During the First World War, Russian soldiers were posted on Serpents’ Island .

⎯ When the island was under Romanian rule, in the period between the two World Wars,

Romania harboured various plans to erect installa tions and to develop further Serpents’ Island,

thus showing that Romania itself believed in its capacity to sustain human habitation and an

89
economic life of its own .

⎯ Soviet troops were permanently stationed on the island from 1946 until Ukraine regained its

independence in 1991 90.

⎯ Shortly after 1991, Ukraine continued to foster the economic development of Serpents’ Island.

Ukraine has recalled in both its written and oral pleadings the various administrative measures

that have been enacted for these purposes since 1995 91. Incidentally, on the subject of

Ukraine’s administrative measures, contrary to what Romania’s Agent stated on Monday 92, I

93
did not misquote him when I referred to Ukraine’s resolution No. 713 of 2002 . With all due

respect, it was his mischaracterization of the resolution as a “‘Comprehensive Programme’ for

transforming the island” 94 that made it necessary to provide the exact title in order to dissipate

the wrong impression that might have been conveyed by the distinguished Agent’s words.

⎯ As to the existence of water on the island, a nu mber of accounts refer to the existence of wells

95
and reservoirs, which are also depicted on topographic maps . One such map, perhaps the

earliest, was drawn by a Russian officer in 1801. It is on the screen and at tab17. Another

topographic map, drawn by a Russian hydrographer in 1823, is also under the same tab and is

86
CMU, Ann. 57.
87
Ibid.
88
CMU, Ann. 58.
8MR, Ann. RM 6 and CMU, Ann. 61.

9CMU, para. 7.67, p. 191.

9CMU, paras. 7.72-7.88; CR 2008/29, p. 14, para. 43.

9CR 2008/30, p. 14, para. 13.
93
CR 2008/29, p. 14, para. 43.
94
CR 2008/20, p. 56, para. 6.
95
CMU, Ann. 57. - 59 -

now projected on the screen. As you can see from the images reproduced on the screen, both

maps show wells and ruins 96. This is also the case of a map produced by Romania,

97
map RM A6 of its atlas . Unfortunately, it appears that upon the withdrawal of Soviet troops

from the island, the water reserves became polluted with chemical and other toxic waste.

However, Ukraine has undertaken a project of water purification 98. According to the

conclusions of the Information Report filed as Annex9 to Ukraine’s Counter-Memorial, the

purification system is “efficient, reliable and simple in operation”. One of the wells is

operational since 2004 and was being used “f or drinking water supply (after additional

treatment) and for household water supply” 99.

40. On the basis of this information, it can be concluded that Serpents’Island can sustain,

and indeed has long sustained, human habitation and have an economic life of its own. Even

Romania agreed with this analysis when it had s overeignty over the island. At the time, Romania

thought that it was worth investing national re sources in order to foster Serpents’Island’s

development, just as Ukraine has done and continues to do since it regained its independence. In

these circumstances, it cannot be credibly maintained that Serpents’Island is a remote barren

“rock” lying at a great distance from Ukraine’s coast.

41. In fact, Serpents’Island’s characteristics are just as, if not more, capable of human

habitation and economic life than those of JanMayen. It is true that this island is larger than

Serpents’ Island, but it is nevertheless much less accessible; it is a volcanic island, which has no

stable population and is inhabited only seasonally by technical staff. And yet, the Conciliation

Commission established by Norway and Iceland to decide the maritime delimitation in the

Jan Mayen area, concluded that this island is in terms “in principle entitled to its own territorial sea,

100
contiguous zone, exclusive economic zone and continental shelf” . For its part, the Court, in the

case concerning maritime delimitation in the area between Greenland and JanMayen, recognized

that the coast of JanMayen generated potentia l maritime entitlements up to a limit of 200miles

96Ibid.
97
Romania’s Map Atlas, Map RM A6.
98
CMU, Ann. 9; RR, paras. 5.50-5.56 and CR 2008/19, p. 64, para. 35.
99CMU, Ann. 9.

10In 20 ILM (1981), pp. 797, 803-804. - 60 -

from its baselines ( Maritime Delimitation in the Area between Greenland and JanMayen

(Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 69, para. 70).

Conclusion

42. MadamPresident, Members of the Court, in Ukraine’s submission, Serpents’Island

cannot be deprived of its status of an Article 121 (2) island. As such, its effect on the delimitation

cannot be ignored. Serpents’Island is clearly an element that must be taken into account in

reaching an equitable result.

43. One of the most noticeable aspects of the overall presentation made by our colleagues on

the other side of the Bar during these proceedings , is their inability to show any consistency

between Romania’s conduct ⎯ before and after the critical date that Romania itself has fixed ⎯

and the existence of an alleged conventional maritime delimitation around Serpents’ Island.

44. In particular, neither Romania’s alleged petroleum activities–– nor even the scientific

research undertaken by academic institutions of Romania and other countries –– nor the proposals

formulated by Romania during the Law of the Sea Conference, contain the slightest hint of the

existence of such a pre-agreed boundary.

45. The absence of any reference to such a delimitation in the compromis between the Parties

represents further confirmation ⎯ if any is needed ⎯ of the same conclusion: the delimitation of

an “all-purpose” boundary around Serpents’ Island is an after-the-fact construct, which only exists

in the imagination of our opponents.

MadamPresident, Members of the Court, I see we are a bit earlier than we planned, but I

would still like to thank you for your kind attention and I would ask you to call on

Professor Quéneudec tomorrow to continue with Ukraine’s presentation.

The PRESIDENT: Thank you, Ms Malintoppi. The Court will resume these hearings

tomorrow morning at 10 a.m. This session for today is now concluded and the Court rises. I have

unfortunately made an error, please do not be alarmed. It is tomorrow afternoon at 3 o’clock that

we shall resume.

The Court rose at 5.50 p.m.

___________

Document Long Title

Audience publique tenue le jeudi 18 septembre 2008, à 15 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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