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.
___________
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)