Non-Corrigé
Uncorrected
CR 2008/24
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Tuesday 9 September 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Maritime Delimitation in the Black Sea
(Romania v. Ukraine)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le mardi 9 septembre 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à la Délimitation maritime en mer Noire
(Roumanie c. Ukraine)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges 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.vsceprh,ident
ShiMM.
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skoteiskov,
CotMM.
jOges an, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Romania is represented by:
Mr. Bogdan Aurescu, Director General, Ministry of Foreign Affairs of Romania, Professor
Lecturer, Faculty of Law, University of Buchar est, President of the Romanian Branch of the
International Law Association, member of th e Permanent Court of Arbitration, substitute
member of the Venice Commission,
as Agent, Counsel and Advocate;
Mr. Cosmin Dinescu, Director General for Legal Affairs, Ministry of Foreign Affairs of Romania,
as Co-Agent, Counsel and Advocate;
H.E Mr. Călin Fabian, Ambassador of Romania to the Kingdom of the Netherlands,
As Co-Agent;
Mr. James Crawford, S.C., F.B.A., Whewell Prof essor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers,
Mr. Vaughan Lowe, Q.C., Chichele Professor of Inte rnational Law, University of Oxford, member
of the English Bar, associate member of the Institut de droit international,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
a s Senior Counsel and Advocates;
Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
as Counsel and Advocate;
Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,
as Counsel;
Mr. Gicu Boroşi, Director General, National Agency for Mineral Resources,
Mr. Mihai German, Deputy Director General, Nati onal Agency for Mineral Resources, member of
the United Nations Commission on the Limits of the Continental Shelf,
Mr. Eugen Laurian, Counter-Admiral (retired),
Mr. Octavian Buzatu, Lieutenant Commander (retired),
Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,
as Technical and Cartographic Experts;
Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania, - 5 -
Le Gouvernement de la Roumanie est représenté par :
M. Bogdan Aurescu, directeur général au ministère roumain des affaires étrangères, chargé de
cours à la faculté de droit de l’Université de Bucarest, président de la section roumaine de
l’Association de droit international, membre de la Cour permanente d’arbitrage, membre
suppléant de la Commission de Venise,
comme agent, conseil et avocat ;
M.CosminDinescu, directeur général des affair es juridiques du ministère roumain des affaires
étrangères,
comme coagent, conseil et avocat ;
S. Exc. M. Călin Fabian, ambassadeur de Roumanie auprès du Royaume des Pays-Bas,
comme coagent ;
M. James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat, Matrix
Chambers,
M. Vaughan Lowe, Q.C., professeur de droit internati onal à l’Université d’Oxford, titulaire de la
chaire Chichele, membre du barreau d’Anglet erre, membre associé de l’Institut de droit
international,
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
comme conseils principaux et avocats ;
M. Daniel Müller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
comme conseil et avocat ;
M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,
comme conseil ;
M. Gicu Boroşi, directeur général de l’agence nationale des ressources minières,
M. Mihai German, directeur général adjoint de l’agence nationale des ressources minières, membre
de la Commission des limites du plateau continental de l’ONU,
M. Eugen Laurian, contre-amiral (en retraite),
M. Octavian Buzatu, capitaine de corvette (en retraite),
M. Ovidiu Neghiu, capitaine, ministère roumain de la défense,
comme experts techniques et cartographes ;
M. Liviu Dumitru, chef de l’unité frontières et délimitation maritime du ministère roumain des
affaires étrangères, - 6 -
Ms Irina Ni ţă, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the
Netherlands,
Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Olivia Horvath, Desk Officer, Public Diplom acy Department, Ministry of Foreign Affairs of
Romania,
as Advisers.
The Government of Ukraine is represented by:
H.E. Mr. Volodymyr A. Vassylenko, Adviser to th e Minister for Foreign Affairs of Ukraine,
Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law,
National University of Kyiv Mohyla Academy,
as Agent;
H.E. Mr. Oleksandr M. Kupchyshyn, Deputy Foreign Minister of Ukraine,
Mr. Volodymyr G. Krokhmal, Director of the Lega l and Treaty Department of the Ministry of
Foreign Affairs of Ukraine,
as Co-Agents;
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the New York Bar,
Eversheds LLP, Paris,
Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of ParisI
(Panthéon-Sorbonne),
Sir Michael Wood, K.C.M.G., Member of the English Bar, Member of the International Law
Commission,
Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris , Member of the Rome Bar,
Eversheds LLP, Paris,
as Counsel and Advocates;
H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine,
Ms Cheryl Dunn, Member of the State Bar of California, Eversheds LLP, Paris,
Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,
Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty
Department of the Ministry of Foreign Affairs of Ukraine, - 7 -
Mme Irina Niţă, deuxième secrétaire, conseiller juridique à l’ambassade de Roumanie au Royaume
des Pays-Bas,
Mme Catrinel Brumar, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Mirela Pascaru, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Ioana Preda, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Olivia Horvath, responsable du départem ent des relations diplomatiques du ministère
roumain des affaires étrangères,
commceonseillers.
Le Gouvernement de l’Ukraine est représenté par :
S. Exc. M. Volodymyr A. Vassylenko, conseiller du ministre des affaires étrangères de l’Ukraine,
ambassadeur extraordinaire et plénipotentiaire d’Ukraine, professeur de droit international à
l’Académie Mohyla (Université nationale de Kiev),
comme agent ;
S. Exc. M. Oleksandr M. Kupchyshyn, vice-ministre des affaires étrangères de l’Ukraine,
M. Volodymyr G. Krokhmal, directeur du départem ent des affaires juridiques et des traités du
ministère des affaires étrangères de l’Ukraine,
comme coagents ;
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,
M. Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
(Panthéon-Sorbonne),
sir Michael Wood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,
Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Eversheds LLP, Paris,
comme conseils et avocats ;
S. Exc. M. Vasyl G. Korzachenko, ambassadeur extraordinaire et plénipotentiaire d’Ukraine,
Mme Cheryl Dunn, membre du barreau de Californie, cabinet Eversheds LLP, Paris,
M. Nick Minogue, Solicitor à la Cour suprême d’Angleterre et du pays de Galles,
M. Oleksii V. Ivaschenko, directeur par intérim de la division du droit international, département
des affaires juridiques et des traités du ministère des affaires étrangères de l’Ukraine, - 8 -
Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic,
Ms Mariana O. Betsa, Second Secretary of th e Embassy of Ukraine in the Kingdom of the
Netherlands,
as Legal Advisers;
Mr. Robin Cleverly, M.A., D. Phil, C. Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of
Ukraine,
as Technical Advisers. - 9 -
M. Maxime O. Kononenko, premier secrétaire à l’ambassade d’Ukraine en France,
Mme Mariana O. Betsa, deuxième secrétaire à l’ambassade d’Ukraine au Royaume des Pays-Bas,
comme conseillers juridiques ;
M. Robin Cleverly, M.A., D. Phil., C. Geol., F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Borys D. Tregubov, général de division, assistant du chef du service de protection des frontières
d’Etat de l’Ukraine,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. The sitting is now open and the Court –– I am about to
tell you of a different case, which would have gin great anxiety to the counsel concerned if I
were to call upon him! But I am able to tell you th at the Court meets this morning, of course, now
to hear Ukraine in the case concerning Maritime Delimitation in the Black Sea . Judge Ranjeva, for
reasons made known to the Court, is unable to sit this morning, and I can immediately turn to the
Agent of Ukraine, His Excellency Mr. Vassylenko.
VMAr.SYLENKO:
I.O PENING STATEMENT OF U KRAINE S A GENT
Introduction
1. Madam President, Members of the Court, it is a great honour for me to appear before you
as Agent of Ukraine in these important proceedings. This is the first time that Ukraine has
appeared before the International Court of Justice. It is a measure of Ukraine’s commitment to
international law and to the peaceful settlement of disputes that we are here today.
2. Ukraine attaches the highest importance to the rule of law in international affairs. For us,
support for international law, and strict compliance with the principles of international law set forth
in the United Nations Charter, including the obligation to settle disputes through peaceful means, is
a central tenet of our foreign policy. Ukraine stri ves to have good neighbourly relations with all of
our neighbours, and to resolve the differences that may arise through negotiations and, if necessary,
through other peaceful means. The present case sets a good example.
3. Ukraine’s relations with Romania have been continuous and constructive and we are
confident that they will remain so in the future. Of course, some issues inevitably arise where there
is a long and important border with a complicat ed history. But the essential thing, on which both
Parties firmly agree, is that such matters are to be resolved peacefully.
4. It will be clear that Ukraine has not bebrought reluctantly before the Court in these
proceedings. It was, in fact, at Ukraine’s suggestion that the 1997 Exchange of Lettersvided
1
CMU, Ann. 1. - 11 -
for recourse to the Court, at the request of either Party, if negotiations did not succeed within a
reasonable period. Formally speaking, it was Romania which commenced the present proceedings.
But we are here by mutual consent. The App lication of Romania was lodged in accordance with
the agreement between the Parties. Ukraine did not raise any preliminary objections. Within the
limits provided for in the Exchange of Letters, we have raised no objections to the jurisdiction of
the Court.
Some general remarks concerning the case before the Court
5. Madam President, Members of the Court, before introducing Ukraine’s counsel, it falls to
me, as Agent of Ukraine, to say a few words of a general character related to the case. I would like
to begin with some points regarding the nature of the dispute before the Court.
6. First, I would emphasize that the problem that the Parties have agreed to submit to the
Court is one of delimitation of the continental shelf and exclusive economic zones. It does not
concern territorial sovereignty over Serpents’ Island or any other territory. There are no
outstanding issues of territorial sovereignty betw een the Parties. Romania’s attempts to bring
within the scope of these legal proceedings issu es relating to Ukraine’s rights in respect of its
sovereign territory are misplaced. I must categorically reject the assertion by Romania’s Agent that
2
the 1948Protocol concerning USSR’s sovereignty over Serpents’ Island was in any way
illegitimate or unequal, or was in contradiction with the Paris Peace Treaty between the Allied and
Associated Powers, Ukraine among them, and Romania 3. On the contrary, the Protocol was a valid
and binding instrument, the effect of which has moreover been confirmed by many subsequent
agreements duly ratified by the Romanian Parliament–– contrary to the impression given by the
4
Agent of Romania last week .
7. I also note that Romania’s Agent stated l ast week that Soviet troops occupied Romania
in 1944 and installed a new government, which thereaf ter led to what he termed the illegal transfer
5
of Serpents’ Island to the Soviet Union . It was striking, however, that no mention was made of
2Ibid., Ann. 24.
3
Ibid., Ann. 23.
4CR 2008/18, p. 23, para. 27 (Aurescu).
5Ibid. - 12 -
Romania’s role in the war prior to 1944 and the occupation of Ukrainian territory or to other
aspects of history which relate to the territorial issues and place past events in perspective.
8. For my part, Madam President, I find it distasteful to rehearse historical arguments that
have no relevance for the Court’s present task 6. Each Party will have their own vision of history,
but these matters are quite irrelevant to these proceedings. I would simply note for the record that
Ukraine has included a detailed assessment of Romania’s position on historical events in Chapter 5
7
of our Counter-Memorial, to which I would respectfully refer the Court .
9. Second, it is important to emphasize that the 1997Treaty on Relations of Good
Neighbourliness and Co-operation 8 and the Exchange of Letters, along with other treaties,
demonstrate clearly the Parties’ understanding that there was a need to delimit the continental shelf
and exclusive economic zones between the Parties. This reflects the fact that the Parties had never
beforehand agreed on the delimitation of areas beyond the State border, which comprises the
territorial sea.
10. The Agent of Romania asserted, in his opening remarks last week, that the 1997 Treaty
represented a “legal compromise” or a “packag e deal” whereby Romania accepted Ukraine’s
sovereignty over Serpents’ Is land, while Ukraine accepted ⎯ in his words–– the applicability in
the delimitation of the continental shelf and exclusive economic zones of paragraph3 of
Article 121 of the Convention on the Law of the Sea as interpreted by Romania when signing and
9
ratifying it .
11. Ukraine categorically denies the existence of any such “package deal”. I headed the
Ukrainian team at the final stage of negotiati ons leading to the 1997 Treaty and Exchange of
Letters. No deals were “struck” beyond the formal framework of these instruments. Like any
important treaties, the 1997 Treaty and Exchange of Letters did indeed embody a compromise. All
the details of the compromise are in the 1997 Treat y and Exchange of Letters themselves. In the
Exchange of Letters, for example, Ukraine undertook not to deploy offensive weapons on Serpents’
6CMU, paras. 5.4-5.5
7
Ibid., paras. 5.7-5.30.
8Ibid., Ann. 2.
9CR 2008/18, pp. 26-29, paras. 37-45 (Aurescu). - 13 -
Island. On the other hand, there is nothing at all about disregarding Serpents’ Island for the
purposes of delimitation.
12. Romania has produced no evidence whatso ever of any “package deal”. Romania
supports its assertion by reference to the text of the Exchange of Letters, with its mention of
Article121 (not, it should be noted, paragraph 3 of that Article), and to Romania’s unilateral
declaration upon signing and ratifying the Convention on the Law of the Sea. But neither the text
of the Exchange of Letters nor the unilateral d eclaration establishes a “package deal”, express or
tacit, as asserted by Romania. This is hardly surprising since there was no such deal.
13. Romania also relies 10upon a newspaper article, produced at the hearing, written in 2006
11
by Romania’s former Minister for Foreign Affairs , that is to say long after the events in question
and when this case was already before the Court. We would invite the Court to disregard this
self-serving article, which in any event does not reflect Ukraine’s view of the negotiations.
14. I now turn briefly to the negotiations that preceded the submission of this dispute to the
Court. They were conducted in a friendly and co- operative manner. It was therefore surprising to
hear the Agent of Romania suggest last week that Ukraine had put forward proposals that were not
in accordance with international law or with prior agreements of the Parties 12. We reject these
allegations. Ukraine negotiated throughout in good faith. Both Ukraine, as successor State to the
USSR, and Romania inherited a complicated problem. Despite 20 years of negotiations, the Soviet
Union and Romania had not been able to reach agreement.
15. In these difficult circumstances, both Parties did their best to resolve the matter. Ukraine
may have had a different approach in terms of the international law of the sea to that espoused by
Romania, but it cannot be said to have negotiated in bad faith. It was Ukraine that introduced into
the negotiations the idea of having recourse to the International Court of Justice, in order to ensure
resolution of the issue which risked impeding good relations between the Parties in the future.
16. During the whole of these delimitation nego tiations, there was never any suggestion that
the Soviet Union and Romania had agreed to the northern limit of Romania’s area of continental
1CR 2008/18, pp. 25-26, paras. 32-36 (Aurescu).
11
CMU, Ann. 22.
1CR 2008/18, pp. 18-22, paras. 11-22 (Aurescu). - 14 -
13
shelf . As we shall show, Romania’s novel and creativ e arguments regarding the alleged effect of
the agreements concluded in the late 1940s are impossible to reconcile with the actual political and
diplomatic background to this case.
17. Romania now claims, before this Court, th at there is a pre-existing agreement, in force
between the Parties, providing for an all-purpo se maritime boundary running along the 12-mile
territorial sea arc around Serpents’ Island. It is important to note at the outset that this appears to
be an entirely new claim, made for the purpose of these proceedings. There is, of course, no such
agreement. In the past, Romania was perfectly clear about this. They, too, were of the view that
there was no agreement on the delimitation of the continental shelf or exclusive economic zones
14
between the former USSR and Romania , and in particular that the bilateral agreements from 1994
and 1999 made no provision for any such delim itation. The Court will nowhere find in the
diplomatic record any support for Romania’s thesis that there was a pre-existing boundary around
Serpents’ Island.
18. Madam President, unlike the distinguished Agent of Romania, I have never had the
15
courage to characterize cases before the Court as simple or very complex . But I have always
drawn the attention of my students to the very high quality of the Court’s judgments, underlying
that each judgment is a valuable contribution bo th to the maintenance of international peace and
security, and to the strengthening of international law.
19. I always tell my students that it is not a sin to have one’s own view of history, or even
one’s own understanding of in ternational law. What is a sin, however, is to distort history by a
selective approach, and to produce unsubstantiated allegations that are simply not backed up by the
relevant agreements.
13
MR, Anns. 25, 26.
14CMU, Anns. 25, 26.
15CR 2008/18, p. 16, paras. 6, 7 (Aurescu). - 15 -
Ukraine’s case before the Court
[Slide: sketch-map of the north-western part of the Black Sea.]
20. After these general remarks, I will now turn briefly to Ukraine’s case. You will see on
16
the screen a map of the north-western part of the Black Sea . This illustrates the coastline of the
Parties, and covers the maritime area to be delimited by the Court.
21. There is one basic point that I would like to make at the outset, the importance of which
17
cannot, in my opinion, be overstated. Ukraine’ s coast dominates this part of the Black Sea . This
is a geographical fact and is apparent from a glance at any map. This basic fact is, in Ukraine’s
view, one of the salient characteristics of this case.
22. Contrary to what Romania alleged last week 18, it is not Ukraine but Romania itself that
has sought to depict the case as being a dispute about Serpents’ Island. Yet Serpents’ Island is just
one element of the long coastline of Ukraine in the north-western part of the Black Sea. Romania’s
attempt to focus on this one island while ignoring large swathes of Ukrainian coastline that face the
area to be delimited reflects Romania’s discomfort with the fact of the great disparity between the
coastal lengths of Ukraine and Romania. We for our part might just as well call this the “Sulina
dyke” case, since that man-made structure certain ly has a wholly disproportionate effect on the
delimitation line that Romania espouses.
23. I should once again emphasize that the present case is about delimitation of the
continental shelf and the exclusive economic zones. The other side may try to focus the case
essentially on Serpents’ Island, distracting attention from the many other aspects of the
proceedings, not least of which is the predominan t position of Ukraine’s coastlines in the relevant
area. But it is not a case exclusively, or even principally, about Serpents’ Island.
24. I should also like to make clear Ukraine’s position on recent activities on Serpents’
19
Island to which the Romanian Agent also made reference last week . Serpents’ Island is part of
Ukraine’s sovereign territory. Ukraine has as mu ch right to develop Serpents’ Island as it has to
16
CMU, fig. 1-1.
17
CMU, paras. 8.10-8.34 ; RU, paras. 6.49-6.56.
18CR 2008/20, p. 10, para. 1 (Pellet).
19CR 2008/20, pp. 54-66, paras. 1-33 (Aurescu). - 16 -
develop any other part of its territory. That is precisely what is happening. Romania has made
much of recent development activities, suggesting that they are being conducted with a view to
strengthening Ukraine’s case in the present pro ceedings. Yet these activities are no more than a
continuation of ones that have been going on for ye ars, of activities that were also conducted or
envisaged during the period when the island was under Romanian control.
25. In his intervention last Thursday, the Agent of Romania drew heavily upon misleading
press reports, and gave a distorted acc ount of Ukrainian official documents 2. He used colourful
but irrelevant historical anecdotes. He went so far as to accuse Ukraine of “deceptive publicity”
and raised the concept of abuse of rights 21. These are serious allegations. They are completely
without foundation. Ukraine’s activities on Serp ents’ Island have been conducted throughout
openly and in good faith, with a view to the furthe r development of the island’s infrastructure and
to support economic activities on the island. These activities in no way are aimed at the
transformation of the natural dimensions of the island as the Agent of Romania asserts. As counsel
for Ukraine will explain, there is no basis whatsoever for these allegations.
26. I wish to place on record, before the Court, that the continuing development activities on
Serpents’ Island, conducted sinc e well before the crystallization of the dispute and the
commencement of the proceedings before the Court, have not in any sense altered the legal status
of the island. Nor have they changed, nor were they ever intended to change, the natural
characteristics of Serpents’ Island. Romania’s complaints are beside the point, and irrelevant to the
case. The fact that the island can accommodate such activities, which have been conducted for
many years to develop the island’s infrastructure a nd which continue to be conducted legitimately
today, undermines any suggestion that the island is a rock within the meaning of paragraph3 of
Article 121.
Ukraine’s line
27. I shall now make a few brief comments on Ukraine’s proposed delimitation line.
20
Ibid.
2Ibid., p. 64, para. 27. - 17 -
28. Ukraine has taken as the starting-point of the delimitation to be decided by this Court the
endpoint of the border of the Parties’ terr itorial seas fixed in the 2003Treaty on the
22
Ukrainian-Romanian State Border Régime . The Parties are in agreement on this starting-point.
29. Ukraine’s approach is grounded in international law which, as set out in Article 38 of the
Court’s Statute, is clearly the applicable law in this case. Ukraine has thus applied the “equitable
principles/relevant circumstances” principle of delimitation to the facts of the case, which has been
developed in the jurisprudence of this Court and which has been followed by tribunals in a number
of important arbitrations.
30. Ukraine has therefore drawn a provisional equidistance line, measured from the nearest
points on the baselines from which the breadth of the Parties’ territorial seas is measured.
31. This equidistance line has subsequently been adjusted to reflect the most striking and
most important circumstance that characterizes this dispute, namely the fact that it is the Ukrainian
coast which dominates the area to be delimited by this Court. The geography of the north-western
part of the Black Sea is a fact which is clearly re levant, and the substantial disparity of the Parties’
coasts is also a fact which, in Ukraine’s view, must necessarily be taken into account in order to
ensure an equitable result.
[Map with claim line]
23
32. The adjusted line represents Ukraine’s claim line , and, again following principles
developed in the jurisprudence of this Court, Ukraine then applied the element of proportionality as
a test, not as a method of delimitation in and of itself, and has compared the ratio between the areas
of continental shelf and exclusive economic zones allocated to the Parties by Ukraine’s claim line
to the ratio of the lengths of the Parties’ relevant coasts. As Ukraine has demonstrated, there is no
disproportion in the result advocated by Ukraine 2. This underscores the equitableness of
Ukraine’s delimitation line.
22
CMU, Ann. 3.
23
CMU, p. 240, fig. 9-3.
24CMU, p. 247, fig. 10-2. - 18 -
33. Contrary to the suggestion of counsel l ast Friday, Ukraine’s delimitation line is not
25
advanced as a kind of “bargaining position” in an open-air market . It is a position that is
grounded in principles of international law. Similarly, as my colleagues will show, Romania’s
claim is scarcely a “reasonable” one. Ultimately, of course, it is for the Court to decide on the
merits of the positions the Parties put to you.
Introduction of team and order of first round speeches
34. Madam President, Members of the Court, in conclusion, I shall introduce Ukraine’s legal
team, and indicate how we propose to organize our fi rst round of pleadings. I should first like to
introduce my Co-Agents, His Excellency Mr. Olek sandr Kupchyshyn, Deputy-Foreign Minister of
Ukraine, and Mr.Volodymyr Krokhmal, Director of the Legal and Treaty Department of the
Ministry of Foreign Affairs of Ukraine.
35. Our counsel will address the Court in the following order. First, Mr. Rodman Bundy will
give a brief overview of the case.
36. Next, Sir Michael Wood will set out the di plomatic background to the dispute, and in
particular take you through the various agreements dating from the late 1940s to 2003.
37. Professor Quéneudec will then address the applicable law.
38. Then, tomorrow morning, Mr.Bundy w ill consider the all important geographical
context, including the relevant coasts and relevant area.
39. SirMichael will then take you through the arguments concerning Romania’s novel and
extraordinary claim that there is already an agreement on an all-purpose maritime boundary around
Serpents’ Island.
40. Ms Loretta Malintoppi will then describe a number of aspects in relation to the conduct
of the Parties that have a bearing on the case.
41. Mr.Bundy will deal next with the flaw ed nature of Romania’s claim line and the
treatment of islands in maritime delimitation.
25
CR 2008/21, p. 66, para. 75. - 19 -
42. MsMalintoppi will then discuss certain “irrelevant” circumstances raised by Romania,
the fact that the Black Sea is enclosed, and the existing delimitation agreements therein; and
Romania’s characterization of Serpents’ Island.
43. Afterwards, ProfessorQuéneudec will deal with the construction of the provisional
equidistance line, and the relevant circumstances which should lead to a modification of the line.
He will describe the line which Ukraine proposes to the Court.
44. And, concluding the first round, we will demonstrate the equitable character of Ukraine’s
line, and the inequitable nature of Romania’s line, applying among other things the proportionality
test. We will also draw some brief conclusions from our first round pleadings.
45. That concludes my preliminary remarks. Madam President, Members of the Court, thank
you for your attention. I would now ask you to call upon Mr.Rodman Bundy to continue
Ukraine’s presentation.
The PRESIDENT: Thank you, Mr. Vassylenko. I now call upon Mr. Bundy.
Mr. BUNDY: Thank you, Madam President, Members of the Court.
II.A N OVERVIEW OF U KRAINE S CASE
1. Madam President, Members of the Court, once again, it is a great honour for me to appear
before you and it is also a privilege to represent Ukraine in this important case.
Introduction
2. The distinguished Agent for Ukraine has highlighted the scope and the essential features
of the case and my task this morning is to pr esent an overview of Ukraine’s case on delimitation
and to contrast that case with the inherently flawed and, in many respects, contradictory approach
of Romania.
3. In approaching this task, I intend to focus on four main issues on which the Parties
continue to be divided.
First, the significance of the overall geographic setting in the case for purposes of achieving
an equitable result; - 20 -
Second, I will deal with the st arting-point for the Court’s task ⎯ in other words, the
importance of the agreed starting-point for delim iting the continental shelf and exclusive economic
zones of the Parties;
Third, I will then touch briefly on the manner in which Romania has misapplied the basic
rule of maritime delimitation to the facts of the case ⎯ the equitable principles/relevant
circumstances, equidistance/special circumstances rule ⎯ as contrasted with Ukraine’s approach to
delimitation which reflects the applicable law and respects the geographic facts; and
The fourth matter I will deal with is the ill-f ounded and, indeed, contradictory approach that
Romania has adopted with respect to applying the proportionality test to the Parties’ respective
claims.
4. These points will obviously be develope d further by my colleagues and myself in
subsequent presentations. At this stage, it is a ppropriate to note that the principal issues which
divide the Parties may be readily identified as a result of the Parties’ written pleadings and the first
round presentation of Romania last week. Bearin g in mind Practice DirectionVI, along with
paragraph 1 of Article 60 of the Rules of Court, Ukraine will endeavour to focus on these issues.
1. The general geographic setting
[Slide: fig. 1-1 to Ukraine’s Counter-Memorial without the shaded relevant area]
5. Let me start with the general geographic setting within which the delimitation is to be
carried out, and the significance that the coastal geography has for arriving at an equitable
delimitation.
6. The map on the screen, which is tab1 in your folders, shows the Black Sea as a whole:
and obviously we have shifted our attention to the western part of the Black Sea this morning. The
Court will appreciate that, while there are a number of States which possess coasts that front the
Black Sea, the area within which the present delimita tion is to be effected is confined to the
north-west corner of the Black Sea where only Uk raine and Romania have coasts which abut the
area.
7. Now two important considerations flow from this basic geographic fact. - 21 -
8. First, a glance at the map on the screen shows very clearly the geographical predominance
of Ukraine’s coast in this area: this is in tab 2 of your folders. Ukraine’s coast faces and fronts on
three sides of the area [on the slide, highlight in turn each segment of Ukraine’s coast in green]: ⎯
on the west, from the terminal point of the land boundary with Romania to a point in the vicinity of
Odessa; on the north, along the entire stretch of coast from Odessa to Cape Tarkhankut; and on
the east, along the west-facing coast of Crimea down to Cape Sarych. In addition, of course, there
is Serpents’ Island belonging to Ukraine, which lies some 19miles off the east-facing coast of
Ukraine to the north of the terminal point on the land boundary and which forms also part of
Ukraine’s coastal geography.
9. Romania’s coast, in contrast, is relativel y short— even taking the entire coast from the
land boundary with Ukraine down to the land bounda ry with Bulgaria into account [on slide,
highlight Romania’s coast in red].
10. This is the geographic reality of the case. Ukraine has a long coast bordering three sides
of the area to be delimited and an island, while Romania has a short coast fronting just part of one
side of that area. As the Court’s pronouncement in the North Sea Continental Shelf cases that the
“land dominates the sea” remains as true today as it did some 40years ago, so also does its
statement of principle that:
“Equity does not necessarily imply equality. There can never be any question
of completely refashioning nature, and equity does not require that a State without
access to the sea should be allotted an area of continental shelf, any more than there
could be a question of rendering the situati on of a State with an extensive coastline
similar to that of a State with a restricted coastline.” ( North Sea Continental Shelf,
Federal Republic of Germany/Denmark ; North Sea Continental Shelf, Federal
Republic of Germany/Netherlands, Judgment, I.C.J. Reports 1969 , pp.49-50,
para. 91.)
11. The second point that I would like to note is that the coasts of the Parties which border
the north-west corner of the Black Sea all lie less than 200 nautical miles from each other, and thus
generate overlapping maritime entitlements projectin g from those coasts which meet and overlap.
It is this situation that gives rise to the need for continental shelf and exclusive economic zone
delimitation in this area.
12. That brings me to a major flaw in Romania’s case. Romania is well aware of the fact
that coastal geography is paramount in maritime delimitation cases ⎯ particularly those involving - 22 -
the delimitation of a single mar itime boundary, as we have here ⎯ and it is also aware that the
Court has consistently held that significant differences in co astal lengths constitute a relevant
circumstance to be taken into account in arriving at an equitable solution. So how then does
Romania confront this issue? Quite simply, by refashioning geography.
[Slide: fig. 3-3 to Ukraine’s Counter-Memorial]
13. The manner in which this is done, as evidenced in Romania’s written pleadings and again
in oral argument last week, is quite striking in its audacity. Romania simply eliminates from
consideration roughly half of Ukraine’s coast extending all the way from a point arbitrarily labelled
“point S” by Romania [arrow pointing to “point S” on fig. 3-3] over to Cape Tarkhankut [arrow on
slide and depict in red the suppressed Ukrainian coas t], while keeping, at the same time, its entire
coast in play. This can be seen on the screen and in tab 3.
14. Now this exercise in severely amputating Uk raine’s relevant coast is artificial in the
extreme and has no legal justification. I will return later, tomorrow, with a closer look at the
relevant coasts of the Parties and their role in the delimitation process. But for present purposes,
what is clear is that the entire south-facing coast of Ukraine ⎯ the part of the coast that Romania
seeks to suppress ⎯ generates 200-nautical-mile maritime entitlements under international law
throughout the area to be delimited and that those coasts should be given no less consideration than
the other coasts of the Parties bordering the relevant area.
15. Last week, my good friend Professor Crawfo rd introduced a novel proposition, which he
termed the “principle of comparative proximity”, and complained that Ukraine’s south-facing coast
is too far from the area being delimited to be c onsidered as a relevant coast (CR2008/18, p.71,
para. 27 (4)). Now let me display on the screen one of Professor Crawford’s illustrations showing
Romania’s claim line which places the issue in pe rspective and disproves, I would respectfully
suggest, my learned friend’s thesis. [Place tab IV-3 map on screen.]
16. I would like to focus on Romania’s coast and the part of that coast that lies south of the
Sacalin peninsula ⎯ the part of the coast that is now being highlighted on the map on the screen.
Despite the fact that this is by far the longest stretch of Romania’s coast that Romania considers to
be a relevant coast, our opponents have been reluctant to discuss it. The distinguished Co-Agent of
Romania ignored this part of Romania’s coast alt ogether in his geographical overview last week, - 23 -
and Professor Crawford barely mentioned it in his own interventions. For his part, Professor Lowe
bravely tried to resurrect its importance, but, with respect, the arguments for maintaining this part
of Romania’s coast as a relevant coast while suppressing half of Ukraine’s coast were
unpersuasive. As I shall show, there are good reasons for Romania to be sensitive about its
southern coast.
17. If we take a point about half-way down Romania’s “opposite coasts” claim line, and then
draw one line directly from that point to Romania’s coast south of the Sacalin peninsula, and then a
second line between Romania’s claim and the middl e of Ukraine’s south-facing coast, the Court
will observe that the distance of each coast from th is point on Romania’s claim line is exactly the
same. A similar line can be drawn to Ukraine’s straight baseline lying further east, as is now being
shown on the screen, as well as to a point north of what Romania artificially labels “point S”.
These are included in the graphic that you will find under tab 4 of your folders.
18. Now international law does not require su ch exactitude when it comes to identifying the
relevant coasts of a party to a delimitation dispute. As I said, the rest of Ukraine’s coast along the
northern stretch of the Black Sea in this corner also generates maritime entitlements extending to a
distance of 200 nautical miles. And yet Romania would discard Ukraine’s entire south-facing coast
as lying too far away while taking full account of its own coast south of the Sacalin peninsula based
on ProfessorCrawford’s “proximity” theory. Now that is a peculiar way of applying equitable
principles and of comparing “like with like”.
[Fig. 3-3 back on screen]
19. I would also point out that the part of Ukraine’s coast which Romania tries to suppress is
not relevant to any delimitation with a third State in the region because of the location of such
States far to the south and east. In contrast, the south-facing Ukrainian coast is specifically relevant
to the delimitation with Romania because it projects into the entire north-west corner of the
BlackSea, which is the focus of the present di spute. This distinguishes the present case from
examples such as Tunisia/Libya, Libya/Malta, and the Jan Mayen cases cited by counsel for
Romania last week in which certain coasts in t hose cases were not consid ered to be relevant
because they faced in a different direction, indeed towards third States in the area, not towards the - 24 -
area involving delimitation with the opposing party in each case. It was because of the presence of
third States in those other cases that coasts were limited.
20. The third aspect of the overall geographic context that deserves mention at this stage
concerns a matter that I have just alluded to, and that is the presence of third States in the region.
Romania contends that third State delimitation pr actice in the Black Sea should dictate the method
of delimitation that is employed as between Ukraine and Romania because of the enclosed nature
of the Black Sea. And indeed, Romania’s Co-Agent last week went so far as to tell the Court that it
is necessary, those were his words, necessary that there exist a consistency between the methods
used elsewhere in the Black Sea and those used in this case lest an inequitable and incompatible
result arise (CR 2008/18, pp.58-59, para.33). And with the greatest respect, that proposition is
demonstrably unsound, and it has never been adopted by the Court in previous cases where it has
dealt with maritime delimitation in enclosed or semi-enclosed seas.
[Replace map of Black Sea on screen]
21. It is evident, as you can see from the ma p on the screen that there are no third States
which lie in the immediate vicinity of the area to be delimited between Ukraine and Romania.
Both Bulgaria and Turkey, for example, lay far to the south of our area of concern and other States
lay far to the east. None of those States has app lied to intervene in the case and none of them, at
least to Ukraine’s knowledge, has sought to be provided with the written pleadings, at least prior to
the opening of these hearings.
22. Turkey concluded a delimitation agreemen t with the Soviet Union in 1978 to which
Ukraine has succeeded in part. And the course of that delimitation now appears on the screen.
[Add the line from fig.8-10 to Ukraine’s Counter -Memorial on the map.] Turkey and Bulgaria
also agreed their maritime boundary which you can see on the screen in 1997 and these are also at
tab 5 of your folders. [Add the line on fig. 8- 11 to Ukraine’s Counter-M emorial to the Black Sea
map.] And the Court will appreciate that these two delimitations fall to the south and east of the
relevant area in this case. Romania has not protested or reserved its position with respect to either
of these two agreements but obviously accepts them.
23. Now as MsMalintoppi will develop in more detail, third State agreements are the
product of bilateral negotiations and are res inter alios acta as far as the Parties to this case are - 25 -
concerned. Whatever methods of delimitation those third States considered appropriate were a
function of the particular circumstances with which they were confronted and had nothing to do
with the north-west corner of the Black Sea re levant to the Ukraine-Romania delimitation with
which the Court is presently concerned.
24. At most, the potential interests of third St ates only come into play at the very extremity
of the maritime boundary to be delimited betw een Ukraine and Romania. And Ukraine’s
delimitation line respects these potential third State rights. To the extent the Court considers that it
is necessary to take into account the interests of third States, Ukraine is confident that the Court
will be able to draw upon its past experience in similar situations. Otherwise, however, the
existence of third State delimitations in the Black Sea has nothing to do with the choice of the
appropriate method ⎯ or appropriate methods ⎯ of delimitation applicable, as between Ukraine
and Romania. As is always the case, delimitati on in a particular case depends on the geographic
and other circumstances characterizing the specific area to be delimited.
25. The final point deserving mention at this stage in connection with the geographic setting
is that, because of the particular configuration of the north-west corner of the Black Sea, it is a
relatively straightforward exercise to identify the “relevant area” in this case. [On slide, show
Ukraine’s relevant area with Turkey/USSR and Tu rkey Bulgaria delimitations] A glance at the
map now being displayed on the screen shows the area where the maritime projections of the
Parties’ coasts meet and overlap, without tr espassing on areas relevant to actual or potential
delimitations with third States. That area stops in the south-west where the potential rights of
Bulgaria come into play, and it also takes into account the fact that areas lying further east have
already been delimited between Turk ey and the former Soviet Union ⎯ now Ukraine ⎯ and have
nothing to do with Romania.
26. It is, therefore, within the green shad ed area you see on the map that the principles and
rules of international law governing maritime delimitation ⎯ the equidistance/special
circumstances rule ⎯ fall to be applied, and that the crite rion of proportionality can be applied as
an ex post facto test to the respective claims of the Parti es. This is the approach that Ukraine has
adopted in its written pleadings, and it is the approach which remains Ukraine’s position today,
notwithstanding Romania’s first round oral presentation last week. - 26 -
2. The starting-point for the delimitation
27. Madam President, Members of the Court, I now come to the second part of my remarks
in which I would like to recall certain essentia l points relating to the starting-point for the
delimitation ⎯ the starting-point of the Court’s task, if you will.
28. As Ukraine’s Agent has described, the 1997 Exchange of Letters, on which the Court’s
jurisdiction is based, provided that the Parties would conclude a separate treaty on the régime of the
State border between the two countries ⎯ a border that included the territorial sea. They also
agreed to settle the problem of delimitation of the continental shelf and exclusive economic zone
by negotiations or, failing an agreement within a pe riod of two years and, provided, in principle,
that the State Border Régime Treaty had entered into force, by either State applying to this Court to
decide the matter.
29. So, a two-step process was thus envisaged: first, the conclusion of a treaty on the State
border régime; and, second, negotiations to delimit the continental shelf and exclusive economic
zones of the Parties.
30. In 2003, the Parties did conclude a treaty on the State border and it entered into force in
2004. With respect to the maritime portion of that agreement, Article 1 of the 2003 Treaty
provides that the State border extends seaward to a point, identified by specific co-ordinates, where
the outer limit of Ukraine’s 12-mile territorial sea measured from Serpents’ Island intersects with
the outer limit of Romania’s own 12-mile territorial sea. You can see this on the screen. [Slide:
map showing the maritime section of 2003 boundary]
31. The location of the endpoint of the territori al sea portion of the State border fixed by the
2003 Treaty can also be found at tab6 of your fold ers. This endpoint is labelled “point F” by
Romania. As for the significance of this point for the present case, there is one important matter on
which the Parties are in agreement, and another, equally important, issue where their positions
radically diverge and where Romania’s arguments are fundamentally misplaced.
32. The point of agreement between the Parties is that both Parties ⎯ both Parties ⎯
acknowledge that the final point of the State border established by the 2003 Treaty constitutes the
starting-point for the delimitation by the Court of the continental shelf and exclusive economic - 27 -
zones seaward of that point. Romania stated this very clearly in its Memorial ⎯ and I would like
to place the quote on the screen and read it. Romania stated:
[Place quote on slide]
“The question of territorial sea delimitati on is not before the Court. That being
so, the principal importance of the 2003 Bord er Regime Treaty (other than in relation
to the question of the jurisdiction of the Court) is that the final point of the boundary
defined by the 2003 Treaty (Point F) constitutes the starting point of the delimitation
line which the Court is called upon to establish.” (MR, para. 7.19.)
33. The necessary implication of this statement ⎯ that point F is the starting-point of the
delimitation that the Court is called upon to establish ⎯ is that the Parties have not previously
delimited any maritime spaces beyond the endpoint fixed by the 2003 Treaty, beyond point F. In
other words, while the Parties were successful in agreeing their territorial sea boundary out to a
distance of 12nautical miles from each Party’s baselines, they were not ab le to agree on their
continental shelf and exclusive economic zone boundary beyond that point. That latter delimitation
is the subject-matter of the present case.
34. The fundamental point of disagreement between the Parties is that, notwithstanding
Romania’s acceptance of the fact that the final point fixed by the 2003 Treaty constitutes the
starting-point for the Court’s task in this case, notwithstanding that, Romania still asserts that there
is a pre-existing, all-purpose maritime boundary extending beyond the last point defined by the
2003 Treaty. This so-called pre-existing boundary is said to extend along a 12-mile arc south and
east of Serpents’ Island all the way up to a point, labelled “point X” by Romania, lying east of
Serpents’ Island. [Add to map a dashed line around Serpents’ Island to “point X”] Now, Romania
has been unable to identify any delimitation agreem ent which actually identifies this mysterious
“point X”, or its co-ordinates, but it nonetheless maintains that a boundary up to “point X”, and
“point X” itself, have previously been agreed.
35. That proposition is clearly misguided and, amongst other reasons, makes no sense when
considered in the light of the 2003 Treaty. Because, in 2003, the Parties essentially finalized the
process of delimiting their State border ⎯ it is labelled a “State border” treaty ⎯ that had begun in
1949 ⎯ which was another “State border” labelled treaty. In 2003, the Parties finalized the process
that had actually begun in 1949 and neither in 1949 nor at any time thereafter until the 2003 Treaty
was concluded were the precise co -ordinates of the endpoint of the State border ever agreed. That - 28 -
was achieved for the first, and for the only, time in the 2003 Treaty, in which the Parties were able
to delimit the State border up to the point where the outer limits of their respective 12-mile
territorial seas intersected. The first time y ou get the co-ordinates of that endpoint on the State
border is in the 2003 Treaty and nothing beyond.
36. There was no agreement seaward of that point, whether to “point X” or to any other
point; and it is inconceivable that, had a ma ritime boundary already existed seaward of the
2003Treaty endpoint, it would not have been re ferred to in the 1997Agreements, which did
envisage future negotiations of the maritime boundary beyond the State border, or in the
2003Treaty itself. Needless to say, there is no such reference and, as my colleague
SirMichaelWood will explain, Romania’s atte mpt to construct a non-existent, all-purpose
maritime boundary based on agreements entered into between Romania and the former Soviet
Union in the late 1940s is entirely misconceived.
37. In short, the Parties agree that the Court’s task is to delimit the continental shelf and
exclusive economic zones appertaining to the Parties beyond the point ⎯ Romania’s “point F” ⎯
having the co-ordinates specified in the 2003Treaty. This necessarily implies that there is no
agreed boundary beyond that point. The task of the Court, therefore, is to delimit a single
continental shelf and EEZ boundary beyond that point F.
3.Application of the equitable principles/ relevant circumstances rule to the facts
of the case
38. That brings me to the third part of my presentation, in which I would like to address the
main differences that have arisen between the Par ties with respect to the relevant principles and
rules of international law and the manner in whic h they are applied to the facts of the case, and
Professor Quéneudec will be dealing with these matters in greater detail subsequently.
39. Ukraine’s position has been clearly spelled out in its written pleadings. Based on the
Court’s jurisprudence, Ukraine considers that it is now well settled that the basic rule of maritime
delimitation finds its expression in what is known as the “equitable principles/relevant
circumstances” rule, which is equivalent to the “equidistance/special circumstances” rule.
40. As the Court has noted on several occasions, and as the tribunals in both the
Barbados/Trinidad and Tobago arbitration and the Guyana/Suriname Annex VII arbitration have - 29 -
also held, application of this rule involves essentially a two-step process. The first step is to
construct a provisional equidistance line, and the second step is then to identify the relevant
circumstances characterizing the area to be delim ited and to assess whether, and to what extent,
those circumstances call for the adjustment of the provisional equidistance line in order to achieve
an equitable result.
41. The case law also confirms that, in certain s ituations, a third step can be applied. This
involves testing the delimitation line that is arrived at as a product of the first two steps against the
criterion of proportionality. In this manner, the Court can verify that the line does not produce a
result that is overly disproportionate in terms of th e maritime areas that appertain to the Parties in
relation to the lengths of their respective coasts th at border on the area to be delimited. Now this
test –– the proportionality test –– is distinct from treating a significant difference in the lengths of
the coasts of the Parties as a relevant circum stance–– a factor which is assessed in the second
stage –– the relevant circumstances stage –– of the process.
42. Obviously, Ukraine recognizes that proportionality in and of itself is not a method of
delimitation, and that maritime delimitation is not an exercise in distributive justice. And
Ukraine’s line is not based on such a method. Moreover, in certain geographic situations ⎯ for
example, where there are third States situated in the immediate area subject to delimitation or
where the delimitation takes place in an open sea ⎯ it is not always practical to apply the
proportionality test as an ex post facto test because it is not possibl e to identify the relevant area
with sufficient precision. But, as I noted, becau se the present case is confined to a well-defined
area in the north-west corner of the Black S ea, where only Ukraine and Romania possess coasts
which abut that area, the proportionality test can be readily applied to the claim lines of the Parties
as a third step in the delimitation process in this case, in order to test the equitableness of the result
that those claim lines produce.
43. In its written pleadings, Romania purported to accept this basic approach to delimitation
for the purposes of the present case. However, Ro mania misapplies the law at each step of the
process, the result of which is a really quite seriously distorted approach to delimitation and a claim
line that bears no relation to the actual geographic f acts of the case or that satisfies the test of
proportionality. - 30 -
44. To give the Court a flavour of the different manner in which the Parties have reflected
the applicable law, let me start with the first step in the process ⎯ the plotting of the provisional
equidistance line.
45. In principle, this exercise should be st raightforward. The coastal geography of the
Parties is what it is ⎯ a product of both nature, in terms of the configuration of the coasts of the
Parties and, of course, of political geography, in terms of the attribution of sovereignty over land
areas and, in this case, the existence of an agr eed State border comprising both a land segment and
a territorial sea border out to the point F agreed in the 2003 Treaty.
46. Because the establishment of a provisiona l equidistance line should take the coastal
geography as it is ⎯ that is, it should be “delimitation neutral”, in a sense, without trying to
prejudge any of the relevant circumstances, or the potentially relevant circumstances ⎯ the Court’s
jurisprudence, as reflected in the Qatar v. Bahrain case and the Cameroon v. Nigeria case, makes it
clear that the provisional line is one which is equidistant from the baselines from which each State
measures the breadth of its respective territorial sea. That is also clearly what is provided for in
Article15 of the Law of the Sea Convention, which is the basis for the “equidistance/special
circumstances” rule.
47. Ukraine has adopted this methodology. [Slide: map showing the course of Ukraine’s
provisional equidistance line with control points indicated] On the Ukrainian side, Ukraine has
used the relevant base points located on its own baselines, including on the baseline of Serpents’
Island, from which the breadth of Ukraine’s territorial sea is measured.
48. And on the Romanian side, Ukraine has done the same thing –– you can see this in tab 7
and on the screen. It has plotted the equidistance line using the relevant base points on Romania’s
baselines, which control the measurement of the outer limit of Romania’s own territorial sea. Now,
one of those base points is located on a man-made feature, extending some 7.5 km out to sea ⎯ the
famous Sulinadyke ⎯ which Romania claims, for purposes of establishing the outer limit of its
territorial sea, as a permanent harbour work forming an integral part of the harbour system. The
Sulina dyke is located just south of the land bounda ry between the two countries. [On slide, arrow
pointing to the location of the Sulina dyke] Becau se the outer breadth of Romania’s territorial sea
is measured from Romania’s baselines, which include the end of this dyke amongst those baselines, - 31 -
Ukraine has used the seaward point on the dyke as a relevant b ase point–– just as it has used
Serpents’ Island, which has a baseline as a base point . But, this is obviously without prejudice to
the question whether, at the second stage of the exercise –– the “relevant circumstances” stage ⎯
an artificial structure of this kind should have any effect at all on the course of an equitable
delimitation line which, above all, should be based on the actual geographic facts characterizing the
area. But that is Ukraine’s method for constructing the provisional equidistance line.
49. Now, let me turn to Romania’s position and here, we run into a host of problems.
50. The first major flaw in Romania’s methodolog y is that the initial part of its claim line is
not based at all on the methodology endorsed by th e Court. Indeed, the first step in maritime
delimitation is discarded in favour of Romania’s assertion that there is a pre-existing boundary
extending half-way around Serpents’ Island to “point X”. As I have already explained, that thesis
is divorced from what the Parties agreed in their 2003 Treaty and has no basis in earlier agreements
concluded between Romania and the former Soviet Union.
51. The second part of Romania’s claim line fares no better and is also quite fundamentally
flawed. South and east of Serpents’ Island, Romani a purports to adopt a provisional equidistance
line. But that is misleading for the following reasons.
52. First, the provisional equidistance line that Romania posits is not a true equidistance line
in any sense of the word. Reduced to its essentials, Romania totally ignores the base points located
on the baseline of Serpents’ Island for purposes of constructing the equidistance line. But at the
same time, Romania has no hesitation using an artificial structure ⎯ the Sulina dyke ⎯ as a base
point for plotting the line. In other words, our distinguished opponents rely on a protruding
man-made structure in establishing the provisiona l equidistance line, but take no account of a
natural feature possessing an actual coast ⎯ Serpents’ Island ⎯ for the same purpose. The
difference in the Parties’ positions can be seen on the map on the screen ⎯ you have seen this
before ⎯ and it is at tab8 in your folders. [P lace slide on map showing Romania’s provisional
equidistance line as compared with Ukraine’s provisional equidistance line.]
53. Last Thursday, Professor Pellet acknowledged expressly ⎯ not once, twice ⎯ that the
provisional equidistance line should be a line –– a nd I am going to quote Professor Pellet, and the
Court will excuse my French –– “dont tous les point s sont équidistants des points les plus proches - 32 -
des lignes de base à partir desquels est mesurée la largeur de la mer territoriale de chacun des deux
Etats” (CR 2008/20, p.15, para.12; and see CR2008/20, p.17, para.18). So there is agreement
between the Parties on this important point of principle.
54. Nonetheless, Professor Pellet went on to argue that Serpents’ Island cannot be used as a
base point for the construction of the provision al equidistance line because the island has no
baseline ⎯ that was his thesis ⎯ Serpents’ Island has no baseline and it is a proposition he sought
to support by reference to Ukraine’s notification of its straight baselines to the United Nations in
1992.
55. That argument, with the greatest respect, is truly astonishing, and finds no support in
international law. I will have more to say on the matter in a later intervention, but the plain fact is
that, under international law, all islands have baselines regardless of their size: all islands have
baselines. Now, in some instances, those baselines will be part of a system of straight baselines
enacted in conformity with Article 7 of the 1982 Convention. And in other instances, the baseline
will be the low-water mark around the island, as is the case for Serpents’ Island. The fact that
every island, at a minimum, has a territorial sea necessarily implies that every island has a baseline
as well. As the authors of one well-respected study entitled The Law of the Sea, have written:
“With large islands, such as Great Britain, Greenland and Madagascar, there are
obviously no problems. But it also means that every islet or rock, no matter how small
in size, has a territorial sea, i.e., the islet or rock, or rather the low-water mark around
it, will serve as part of the baseline.” (A.V. Lowe, R.R. Churchill, The Law of the Sea,
Third Edition, Juris Publishing, Manchester University Press, p. 49.)
The quote is obviously correct.
56. That being the case, and given that the provisional equidistance line should be drawn
from the baselines of the Parties from which the breadth of their territorial seas is measured, it
follows that because Serpents’ Island has a baseline, that baseline, in turn, provides base points for
establishing the provisional equidistance line.
57. As can be seen from the map on the scr een, Romania’s provisional equidistance line
bears no relation to a line which is genuinely equidistant from the nearest base points on the
baselines of the Parties from which the outer limits of their territorial seas are measured.
58. Moreover, the huge effect that Romania’s use of the seaward tip of the Sulina dyke as a
base point has on the course of the line can be seen on another graphic
which is now being - 33 -
displayed on the screen and which is at tab9 of your folders. That shows the course of the
provisional equidistance line if both Serpents’ Island and the Sulina dyke are ignored as base
points. Romania only ignores Serpents’ Island but if you ignored both, quod non, this would be the
difference. [Add the equidistance line ignoring Sulina dyke and Serpents’ Island to the map.]
59. In short, Romania’s version of the provisi onal equidistance line is plainly skewed in its
favour. The notion that a protruding, man-made structure can be given a full effect for purposes of
plotting the provisional equidistance line, while a natural feature ⎯ an island ⎯ can simply be
ignored does not comport with a proper application of the law or with equitable principles. Yet
Romania’s claim line is based precisely on that premise and, as we shall see, a large part of that
claim is controlled by the dyke. Last Thursday, my good friend Professor Pellet complained that a
base point located on Serpents’ Island controlled 137 km of Ukraine’s provisional equidistance line
(CR 2008/20, p. 11, para. 2). What he conspicuously failed to mention is that the tip of the Sulina
dyke controls 160 km of Romania’s provisional equidistance line.
60. The second shortcoming in Romania’s pr ovisional equidistance line is that, east of
Serpents’ Island, Romania actually claims more than that line. Here, Romania has been confronted
with the fact that its self-generated “point X” does not lie on the provisional equidistance line even
as improperly calculated by Romania. As a result, Romania is forced to try and marry up its
“pointX” with its wrongly plotted provisional e quidistance line, and to argue that Romania is
entitled to additional maritime spaces over and above its provisional line as a kind of distributive
justice to compensate for areas that Romania says it “lost” when it was allegedly forced to agree a
State border with the Soviet Union in 1949.
61. We will be focussing on this highly artificial aspect of Romania’s claim in a later
presentation. I merely want to flag it now and will come back to it. But for present purposes, the
point I would respectfully like to recall is the fact that Romania has misapplied the first step in the
delimitation process ⎯ the establishment of the provisional equidistance line.
62. If I now move to the second stage of the process ⎯ the identification and the weighting
of the relevant circumstances which may call for an adjustment being made to the provisional
line ⎯ we will see that Romania’s position here, too, runs into a host of problems. - 34 -
63. Now it can scarcely be disputed that the most important factor in maritime delimitation is
the geography of the area to be delimited ⎯ particularly the configuration and the lengths of the
parties’ relevant coasts. Without entering into details at this stage ⎯ I will come back to the
relevant coasts tomorrow ⎯ I would simply recall the point that I discussed at the outset of my
presentation which is the fact that in terms of coastal geography, Ukraine has a predominant
position.
64. Whether the coasts of the Parties are measu red in accordance with their general direction
or by taking into account their sinuosities, Ukraine’ s coast fronting the relevant area is some four
times longer than Romania’s coast. In addition, Serpents’ Island also forms part of Ukraine’s
coastal geography and must be taken into account in any equitable delimitation of the continental
shelf and EEZ.
65. There is clearly ample jurisprudence which supports the principle that significant
differences in the length of the Parties’ relevant coasts constitute a relevant circumstance justifying
the shifting of the provisional equidistance line in favour of the State with the longer coast in order
to achieve an equitable delimitation.
66. There is also State practice which reflects the same proposition. The France/Spain
agreement being a key example. The present ca se fits comfortably within these precedents.
Ukraine’s coast borders three sides of the relevant area, and is much longer than the relevant coast
of Romania facing the same area. In these circumstances, there are sound legal grounds, Ukraine
submits, for adjusting the provisional equidistance line to take into account these facts.
67. As will be explained by my colleague, Professor Quéneudec, Ukraine’s delimitation line
respects this crucial geographic fact. Ukraine has started, as the Agent showed, by calculating on a
provisional basis, a strict equidistance line. And then Ukraine has then adjusted that line in order to
reflect the effect that marked differences in the lengths of the Parties’ relevant coasts has as a
relevant circumstance. The course of that line, including the weight given to this substantial
disparity in coastal lengths, is shown on the map a nd in tab 10 of your folders. [Slide: Ukraine’s
provisional equidistance line and the shifting of that line to arrive at Ukraine’s claim line] Despite
Romania’s confusion on this point ⎯ a confusion that I have to say was carried over into the oral - 35 -
pleadings last week ⎯ this is not using proportionality as a method of delimitation. Rather, an
adjustment to the provisional line is necessary to reflect the relevant geographic circumstances.
68. In contrast, Romania’s claim line is gr ounded on the false premise that there is a
pre-existing boundary extending south and east of Serpents’ Island and on a wrongly plotted
provisional equidistance line. And it thereafter fails to take any account of the large disparity in the
lengths of the coasts of the Parties bordering the area to be delimited as a relevant circumstance.
As a result, Romania’s method produces a “cut-off” effect on both Ukraine’s south-facing and its
east-facing coasts. Given the faulty premises on whic h Romania’s claim is constructed, it is not
surprising that, when it comes to the final step in the delimitation process ⎯ applying the
proportionality test to the claims of the Parties ⎯ Romania’s line fails that test.
4. Application of the proportionality test to the Parties’ claims
69. That is the last issue, Madam President, perhaps before the coffee break, that I would like
to comment briefly on in my overview of the case. As I noted earlier, proportionality can be
readily applied in the present case to test the equ itableness of the Parties’ claims. Indeed, if the
Parties have correctly applied the first two steps of the process ⎯ the establishment of the
provisional equidistance line and then the adjustment of that line in order to take into account the
relevant geographic circumstances ⎯ the result should in principle be a line that satisfies the test of
proportionality.
70. Ukraine has demonstrated in its written pl eadings that its delimitation line fully satisfies
the proportionality test, and we will be showing th is again later at the end of our presentation.
Clearly what is important is that there be no gross disproportion in the result, not that there be a
strict mathematical correlation between coastal lengths and maritime areas. That is what Ukraine’s
line achieves.
71. Romania, on the other hand, has exhibite d a somewhat inconsistent attitude towards
proportionality ⎯ perhaps understandably, in the light of the geographic characteristics of the area
to be delimited.
72. In its Memorial, Romania fully embraced the application of the proportionality test in the
present case, although it confused the role that a marked difference in coastal lengths has as a - 36 -
relevant circumstance with the role of proportionality as an ex post facto test of the equitableness of
the result. Those are two quite distinct matters.
73. In its Reply, however, Romania exhibited considerably less enthusiasm for
proportionality. And it may have belatedly reali zed that the only way it can argue that its claim
line satisfies the proportionality test is by reashioning geography. This, as I have explained,
Romania has done in two ways, first by disregarding half of Ukraine’s releva nt coast line while, at
the same time, taking into account its entire coast down to Bulgaria, and second by adding to the
equation ⎯ the proportionality equation ⎯ a large area lying between Ukraine and Turkey that has
nothing to do with the delimitation between Ukraine and Romania.
74. As I indicated, we will address the element of proportionality at the end of our first round
presentation and we will show how Ukraine’s claim satisfies the proportionality test while
Romania’s does not.
75. Madam President, that concludes my overview of Ukraine’s case. I would be grateful
perhaps, after the coffee break if you could call on Sir Michael Wood to continue Ukraine’s
presentation and I thank the Court for its attention. Thank you.
The PRESIDENT: Thank you, Mr. Bundy. The Court will now shortly rise.
The Court adjourned from 11.25 a.m. to 11.45 a.m.
The PRESIDENT: Please be seated. Sir Michael, you have the floor.
Sir Michael WOOD:
III.T HE DIPLOMATIC BACKGROUND TO THE DISPUTE
A. Introduction
1. Madam President, Members of the Court, it is an honour for me to appear before the Court
on behalf of Ukraine, and I am very grateful to the Ukrainian authorities for giving me this
opportunity. At the same time, it is a great sadness that Sir Arthur Watts is not with us today. He
was a key member of the Ukrainian legal team, and he contributed fully to Ukraine’s written
pleadings. - 37 -
2. Madam President, this morning I shall take the Court though the principal international
instruments at issue in this case. Then, tomorrow, I shall return to these agreements, to show that
Romania has not begun to discharge the heavy burden it bears if it is to establish its thesis: its
thesis that there is a pre-existing agreemen t, dating from 1949, on an all-purpose maritime
boundary going around Serpents’ Island, to what it calls “point X”.
3. In this connection, I should reca ll what you said in your recent Judgment in Nicaragua v.
Honduras: “The establishment of a permanent maritim e 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.)
4. This morning I will describe the diplomatic background to the dispute, in so far as it may
be of legal significance. In particular, I shall draw the Court’s attention to the key documents.
26
ProfessorCrawford already took you through these documents last week . But what he did not
bring out, and what we say is of primordial impor tance, is that, throughout the period from the late
1940s to 2003, what the Parties were doing was to delimit and demarcate their common State
border, that is, the border between areas under thei r respective sovereignty. The State border runs
between the two countries’ land territory, internal waters and territorial seas, but not of course
between maritime zones seaward of the territorial sea. This strand of negotiations was eventually
completed with the conclusion of the 2003Border Treaty, in which, as Mr. Bundy has already
explained, the Parties finally agreed the co-ord inates of the last point of their State border—
following Romania, we will call this pointF. Th e documents in question refer throughout to the
“State border”, and there is no hint that the Parties were concerned in any way to delimit maritime
areas beyond the State border.
5. There was, of course, a quite separate st rand of negotiations, also stretching over a long
period, concerning delimitation of the continenta l shelf and exclusive economic zones. The only
agreements to emerge from these negotiations were those of 1997.
26
CR 2008/19, pp. 21-37 (Crawford). - 38 -
6. If this important distinction, between the negotiations on the State border, and the
negotiations on the continental shelf and EEZs, is borne in mind, the “procession of agreements”,
as Professor Crawford called them, is really quite easy to follow.
7. I do not propose to enter into the more distant historical background, which Romania dealt
with at some length in its written pleadings. Ukraine’s sovereignty over Serpents’ Island is
undisputed. So, too, is the endpoint of the State border agreed in the 2003 Treaty. No one, now,
questions the validity of the agreements of the late 1940s. The delimitation before the Court takes
as its basis, as it must, the territorial position that ex ists today, which is not disputed by either side,
and as its starting-point the final point agreed in 2003, point F.
B. The key dates
8. Madam President, three key dates to bear in mind are 1949, 1997, and 2003.
9. In 1949, the Soviet Union and Romania agreed on their State border, from the tripoint
where the Soviet Union, Hungary and Romania meet , to the furthest point of the border between
their territorial seas, actual and prospective, on the outer limit of the 12-mile territorial sea around
Serpents’ Island ⎯ the endpoint of the State border. They did not identify that endpoint by
co-ordinates, presumably because Romania had not yet extended its territorial sea to 12 miles. But
they knew very well approximately where it was. Indeed by our calculation, the endpoint shown
on map134 of 1949— to which I shall return— lies some 245m away from pointF agreed in
27
2003. It is indeed, as Professor Crawford said last Friday , “some distance to the north-west”, but
not a very great distance!
10. Then, in 1997, Ukraine and Romania agreed on negotiations to delimit their continental
shelf and exclusive economic zones, and they provid ed for reference of that matter to this Court
under certain circumstances.
11. And, finally, in their 2003 Treaty, Ukraine and Romania reconfirmed the territorial sea
delimitation that had been agreed in 1949 and alr eady confirmed in 1961. And they agreed for the
first time the precise co-ordinates of the final poi nt, point F, where the State border between their
27
CR 2008/21, p. 41, para. 15 (Crawford). - 39 -
respective territorial seas terminates. The 2003 Tr eaty concluded the negotiations on the State
border that had begun in 1948.
12. I propose to deal tomorrow with Romania’s assertion that the 1949 Agreements also
determined questions relating to the continental sh elf and EEZs, at a time when the doctrine of the
continental shelf had yet to be accepted as part of international law, and when the concept of the
EEZ was simply unknown. I shall focus today in particular on the Agreements of 1997 and 2003.
In our submission, these are the key documents relevant to this case. The 1997 Exchange of
Letters establishes the jurisdiction of the C ourt. The 2003 Treaty establishes the precise
co-ordinates of the starting-point for the delimit ation that the Court has been requested to
undertake.
13. The earlier agreements, those before 1997, are not, in our submission, especially material
to the disposition of the case. I shall nevertheless have to take the Court through them since they
have been much relied upon by Romania.
14. The written pleadings make reference to a whole series of international agreements and
instruments concluded between 1947 and 2003, a period of some 55 years. It was a period of rapid
development in international law. It was the period which saw the development of the modern law
of the sea, with the three United Nations conferences 28, the adoption of the Law of the Sea
Conventions and other treaties, including many ma ritime delimitation agreements, and the making
of national claims and laws, including by the Par ties before you today. It was also a period which
saw great political change, not least in the former Soviet Union and Eastern Europe.
15. The various instruments that I shall describ e need to be seen against this changing legal
and political background. For the convenience of the Court, we have included a list of these
instruments at tab11 of your folders. This is largely chronological, it gives the full title of the
instrument, its date, where it can be found in th e written pleadings, as well as a suggested informal
short title.
28
Conferences of 1958, 1960 and 1973-1982. - 40 -
C. Some general observations on the instruments
16. I shall now offer three general observati ons on the agreements with which we are
concerned.
17. First, the principal distinction between the various instruments is the one I have already
mentioned, between those that deal with the State border, and those that concern delimitation of the
continental shelf and EEZs.
18. Most of the agreements deal with the location and demarcation of the State border
between Ukraine (before 1991, the Soviet Union) a nd Romania, and with the régime applicable to
the border. The agreements of 1997, but only those agreements, also refe r to the continental shelf
and the EEZs. Certain agreements also deal with wider political matters: the Peace Treaty of 1947
and the1997 Treaty on Relations.
19. A second general comment. Except for the 1947 Peace Treaty, all the instruments
involve just two States: the Soviet Union (from 1991, Ukraine) and Romania. They are concluded
in two authentic texts, Russian (or Ukrainian) and Romanian. The English translations supplied by
the Parties, and the French translations (made by the Registry), are not of course authentic texts.
Unfortunately, you sometimes have before you differ ent English translations. This is untidy, but
the differences generally do not seem to be mate rial. An obvious example of a non-material
difference is the use, in English, of the terms “p rotocol” and “procès-verbal”. However, when we
come to the key sentences, for example, in the 1949 procès-verbaux, some care may be needed
when approaching the various translations.
20. A third comment is that the instruments involved are of two kinds. There are treaties in
standard form, international agreements of the kind that are familiar to foreign ministries and often
drafted by them, sometimes even with the involvement of legal departments. The 1997 agreement
and the successive treaties on the Border Régime (of 1949, 1961, and 2003) are examples.
21. And then there is the series of instruments drawn up and signed by technical experts
within the Joint Soviet-Romanian Commission for the Demarcation of the State Border, these are
usually called procès-verbaux. They are also formal documents. But they are formal documents of
a rather different kind. They record very detailed agreements reached at the technical level. They
are concerned to establish, and describe as precisely as possible, border points, border marks, and - 41 -
border lines. They may be “absolutely meticulous” and a “model of precision”, as
29
Professor Crawford suggested , but I would suggest that that is only on the technical level. They
do not seem to me to have been drafted with an ey e to legal niceties or consistency of language.
Their purpose is the technical one of describing precisely facts on the ground. It is not their
purpose to record political agreements.
22. That is not to suggest that the technical instruments are not bindi ng. But I do suggest
that their nature and purpose need to be borne in mind when it comes to interpreting them. We
should not expect to find the same degree of le gal precision in the language of such technical
agreements as we do in more formal treaties.
D. Outline of the negotiations
23. Madam President, Members of the Cour t, I shall now outline the negotiations and
instruments referred to by the Parties. It is see mingly complex, in the sen se that there is a long
series of agreed documents, stretching over some 55 years. Some appear, at first sight, to be rather
obscure, at least to a tidy-minded lawyer. But at the same time, what happened ⎯ relevant to this
case ⎯ is actually quite straightforward.
24. First, the Parties (or rather the Soviet Union and Romania) agreed in 1949, as part of
their agreement on the State border, on the delimita tion between their respective areas of territorial
sea (including, in the case of Romania, prospectiv e territorial sea). This agreement has been
confirmed on various occasions, notably in 1961 and most recently in the 2003 Treaty, when the
endpoint was finally specified by co-ordinates. In addition, steps have been taken from time to
time to ensure the proper demarcation, through boundary marks ⎯ border posts, buoys and
beacons ⎯ of the agreed line of delimitation. A nu mber of the documents referred to in the
pleadings relate to this essentially technical matter, and hardly need concern us.
25. Second, in 1997, the Parties agreed to resume negotiations to delimit their respective
areas of shelf and EEZs. They further agreed that , if the negotiations failed, the matter would be
submitted to this Court.
29
CR 2008/19, p. 23, paras. 7-8 (Crawford). - 42 -
26. I shall first look briefly at the principal instruments from the Soviet era, the 1949 State
border delimitation and demarcation as well as the Soviet-Romanian border agreements after 1949.
I shall then turn to the all-important Ukraine-Ro mania agreements of 1997 and 2003. There is a
full description of all the instruments in our Counter-Memorial.
(i) Soviet period instruments on the State border
27. The State border between the Soviet Union and Romania was fixed in the Treaty of
Peace between the Allied and Associated Powers and Romania of 10 February 1947, as clarified by
the Protocol concerning Adjustment of the Traversal of the State Border Line which was done at
Moscow on 4 February 1948. The Peace Treaty provided that the frontiers of Romania “shall be
those which existed on January 1, 1941, with th e exception of the Romanian-Hungarian frontier”
(which was to be that of 1 January 1938).
28. A copy of the 1948 Protocol is at tab 12 in the folders. You will see that the preambular
paragraph reads: “According to Article1 of the Treaty of Peace with Romania..., [the two
Governments] have settled as follows :” Paragraph 1 then begins: “The State border between the
USSR and Romania... shall pass as follo ws.” And at the end of paragraph1 (b), we read that
“The island of Zmiinyi/Şerpilor/ [that is, Serpents’ Island] lo cated in the Black Sea shall become a
part of the USSR.” Paragraph3 is important because it provides that a mixed Soviet-Romanian
Border Commission should be established “for the demarcation of the border according to Item1
of this Protocol”, that is, for the demarcation of the State border between the USSR and Romania.
29. Pursuant to the 1948 Protocol, the Mixed Border Commission duly proceeded to
demarcate the State border and prepared the documents that were signe d on 27September 1949.
This was clearly an enormous technical task. The resulting documentation is extensive. The
procès-verbal describing the line of the State borde r demarcated in 1948-1949 is contained in three
volumes. This is referred to in the pleadings as the general procès-verbal of 1949. An English
translation is at tab 13. This is of the opening pages of Volume 1 of the general procès-verbal. As
you will see, as both the name of the Commission and the title of this general procès-verbal make
clear and as is recorded in the opening paragraph, the task of the Commission, and the purpose of
the procès-verbal, was to demarcate the State border. The opening paragraph reads in part: - 43 -
“the Mixed Soviet-Romanian Commission on the Demarcation of the State Border
between the Union of [Soviet] Socialis t Republics and the Romanian People’s
Republic during the period since 11 Se ptember 1948 to 20 September 1949 made
demarcation of the state border from the junction of the state borders of the Union of
Soviet Socialist Republics, the Romanian People’s Republic and the Hungarian
Republic (border mark ‘Tur’) to the Black Sea (border mark No. 1439)”.
In the list that immediately follows, in the next paragraph, you will see point 10 refers to border
mark No. 1439 as the final border mark. And if you turn to the third page, at paragraph 8, we again
read: “The serial numbers are conferred to all the other basic border marks . . . in ascending order
to the final point of the demarcated border line, located in the Black Sea starting from the No. 1 to
No. 1439 . . .”30
30. However, the most relevant passage from the general procès-verbal, the passage to which
Professor Crawford made lengthy reference, comes towards the end of Volume III. You will find
the relevant part at tab 14 in the folders. Only the last few pages need concern us. They describe
the last two border marks of the State border. I shall come back to them in a little more detail
tomorrow.
31. But you will see at the end of the document at tab14, there is a heading which reads:
“The following documents are attached to this Protocol.” Underneath the heading we see listed,
first: “1. Maps of the state border between th e USSR and RPR [that is, the Romanian People’s
Republic] . . .” The annexed map relevant to our case is, of course, map 134.
[Slide: map 134.]
That is now being shown on the screen and is also at tab15. You will now see on the screen an
enlargement of the relevant part of the map. [Enlargement on screen] It is a map showing the
location of border point 1439. [Point to it] It also shows a line going some 22 degrees around the
outer limit of the 12-mile territorial sea around Serpents’ Island, and terminating there. [Point to it]
I will return to map 134 tomorrow.
[Slide off screen]
32. If I could ask you to go back to the last few pages, in tab 14, of the general procès-verbal
we next see, under the heading “The following documents are attached to this Protocol” ⎯ at
point 3 ⎯ “Protocol for border marks”. This refers to the procès-verbaux of the individual border
30
RU, Ann. 1. - 44 -
marks. There are six volumes containing these individual procès-verbaux. We are chiefly
concerned with the one relating to border mark 1439. I shall also return to this tomorrow.
33. Later in 1949, the Soviet Union and Romania concluded a Treaty on the Régime of the
Soviet-Romanian State Boundary. Article 1 of this Treaty provided that the line of the State border
established pursuant to the 1947 Peace Treaty and the Protocol of 1948 “shall run . . . as defined in
the demarcation documents” of 27September 1949, a reference to the general and individual
procès-verbaux which I have just mentioned.
34. The next instrument chronologically is an Act of 1954 relating to mark 1439. This was a
purely technical document, signed by Boundary Co mmissioners, which certified that they had
“rebuilt the lost boundary mark”. It need not detain us further.
35. Then, in February 1961, the Soviet Union and Romania concluded a new Treaty on the
31
Régime of the Soviet-Romanian State Boundary, replacing that of 1949 . Article 1 of this Treaty
essentially repeated the terms of Article1 of th e 1949 Treaty, once again referring back to the
“demarcation documents signed on 27 September 1949”.
36. Next, in August 1963, there was an ex tensive technical updating of the general and
individual procès-verbaux 32. But no change was made that is material to the case before the Court.
33
The same exercise was carried out again in 1974 . Again there was no material change.
37. That concludes my brief review of the documents from the Soviet period. It is clear from
their terms that they all deal with the State border, that is, so far as concerns maritime areas, with
internal waters and the territorial sea, not the continental shelf or exclusive economic zones.
(ii) Soviet-Romanian negotiations on the delimitation of the continental shelf and EEZs
38. A quite separate strand of negotiations on the delimitation of the continental shelf and
EEZs did, however, start during the Soviet period. Ten rounds of negotiations took place between
1967 and 1987, without any agreement being reached . Romania has its own records. It has
supplied the Court with extracts. We do not belie ve that any material assistance can be gained
from these extracts.
3CMU, Ann. 33.
32
MR, Ann. 9; MR, Ann. 10.
3MR, Ann. 21. - 45 -
39. The extracts supplied by Romania include a statement, apparently made by the Romanian
delegation at the final round of the talks in Oct ober 1987, which is cited in translation in the
Memorial 3. The statement concludes with the words: “What was agreed then [in 1949] is the
maximum effect that can be given to this island [Serpents’ Island].”
40. In our submission, no significance attaches to this statement. Only in the most
exceptional circumstances could a unilateral statemen t made during negotiations have legal effect.
In any event, even on its terms as recorded in the Romanian records, which Ukraine has no way of
verifying, the actual words supposedly used by th e Romanian delegation do not bear the meaning
placed upon them. They do not say that there was agreement in 1949 that the maximum effect that
could be given to Serpents’ Island was a 12-mile territorial sea. The statement indicates no more
than that Romania’s negotiating position, in 1987, was that the island’s entitlement to maritime
space should be limited to the 12-mile territorial se a agreed in 1949. That was nothing new. That
Romanian position explains, for example, its prot racted, and unsuccessful, efforts, at the Third
United Nations Conference on the Law of the Sea, to modify the scope of the draft of Article 121,
paragraph 3, so that the exception for “rocks” woul d be expanded to include Serpents’ Island. My
colleague, Ms Malintoppi, will refer to these events later.
(iii)The 1997 agreements between Ukraine and Romania
41. I now turn to the important agreements concluded between Ukraine and Romania after
1991. Ukraine regained its independence, and became the successor State to the Soviet Union as
regards the treaties that I have just described. Thereafter, negotiations took place on a range of
matters, including both the régime of the State bor der between the two States, and the delimitation
of the shelf and EEZs in the Black Sea ⎯ continuing the two strands of negotiations that had
commenced in the Soviet period.
42. Agreement was reached on the two bilateral treaties of 2 June 1997: the Treaty on
35
Relations of Good Neighb ourliness and Co-operation , and the Exchange of Letters (which can
also be referred to as the Additional Agreement) 36. The Exchange of Letters is of course the basis
3MR, para.5.15 and MR, Ann. 331.
35
CMU, Ann. 2.
3CMU, Ann. 1. - 46 -
for the Court’s jurisdiction in th is case. These two are the only bilateral agreements applicable
between the Parties that touch on the continental shelf and EEZs. As I have already pointed out, all
the other agreements and instruments relate exclusively to the State border.
43. The Treaty on Relations is an important political treaty dealing with a wide range of
issues concerning Ukrainian-Romanian relations . For present purposes, the key provision is
Article 2 ⎯ and you will find it at tab16 in your folders. In paragraph1, the Parties reaffirmed
“the existing border” between them ⎯ they reaffirmed that the existing boarder between them was
inviolable. They thus confirmed the existing border, no more, no less.
44. Paragraph 2 then goes on to deal with the two separate matters to which I have
alluded ⎯ the State border, and delimitation of the shelf and EEZs. It reads as follows:
“2. The Contracting Parties shall conclude a separate Treaty on the regime of
the boundary between the two states and shall settle the problem of the delimitation of
their continental shelf and of economic excl usive zones in the Black Sea on the basis
of the principles and procedures agreed upon by exchange of letters between the
ministers of foreign affairs [that is a reference to the Exchange of Letters or the
Additional Agreement] . . .”
45. This Article acknowledged that there was still a problem over continental shelf and EEZ
delimitation, these matters were still open. It c ontains nothing whatsoever to suggest, as Romania
now seeks to argue, that there was already an agreement on a partial all-purpose maritime
boundary.
46. You will find the Exchange of Letters of the same date at tab17 in the folders.
Paragraph 1 committed the Parties to conclude the new Treaty on their State Border Régime,
“on the basis of the principle of succession of states with regard to borders, according
to which, declaration of independence of Uk raine shall not affect the existing border
between Ukraine and Romania as determined and described in the 1961 Treaty . . . and
relevant demarcation documents effective as of 19 July 1990 . . .”.
47. Thus the existing agreement on the line of the State border, in the Treaty of 1961, and
going back to 1949, was again reaffirmed, and again reaffirmed without change.
48. Paragraphs 2 and 3 of the Exchange of Le tters concern details of the border régime, and
are not material.
49. The Exchange of Letters then deals in a separate paragraph, paragraph4, with the
delimitation of the shelf and EEZs. The Parties accepted that the land and territorial sea State - 47 -
border had been settled, and that it was time to move on to the delimitation of their continental
shelf and EEZs. The Parties based themselves on the clear distinction ⎯ entirely in line with the
modern international law of the sea ⎯ between the State border, dividing areas under their
sovereignty, including the territorial sea, and ot her areas of sovereign rights and jurisdiction, in
particular the continental shelf and EEZs. Paragraph 4 committed the two States to “negotiate an
Agreement on the delimitation of the continental shelf and the exclusive economic zones in the
Black Sea, on the basis of certain principles and procedures”.
50. There then follow a number of principles wh ich were to be applied in the negotiations.
As Professor Quéneudec will explain, in terms tho se “principles” were to apply to the negotiations
between the Parties, not to any eventual proceedings before this Court. It is significant that neither
the “principles” nor any other provision of the 1997 agreements includes any mention of any earlier
continental shelf or EEZ delimitation agreement, which Romania now seeks to argue had already
been concluded. Indeed, Romania has produced nothing to indicate that at any point during the
negotiations leading to the 1997 agreements did Ro mania raise the argument that it now makes,
namely that the agreements of 1949 and follow ing established an all-purpose maritime boundary
between the two States following the outer limit of the 12-mile territorial sea around Serpents’
37
Island to what they like to call “point X” .
51. Romania has produced no evidence, because it did not raise any such argument. On the
contrary, as the Agent of Ukraine said this morning, in the past, Romania was clearly “of the view
that there was no agreement on the delimitation of the continental shelf or exclusive economic
zones between the former USSR and Romani a”. This can be seen, Madam President, inter alia, in
the Romanian Note Verbale that you will find at tab 18 of your folders: this is the Note Verbale of
28July 1995 to which Romania itself drew your attention last week. As you will see ⎯ and you
will find this at the beginning of the fourth paragraph on the first page ⎯ the Foreign Ministry of
Romania said, in terms, “there is no Agreemen t between Romania and Ukraine on the delimitation
of maritime spaces in the Black Sea”. That is by no means an isolated statement. That was
37
MR, para 11.5. - 48 -
Romania’s position in the 1990s. It surely lacks credibility when it now seeks to claim the opposite
before this Court.
(iv) The 2003 State Border Treaty
52. Madam President, in accordance with the 1997 Treaty and Exchange of Letters, Ukraine
and Romania concluded the Border Régime Treaty on 17 June 2003 38. This entered into force in
2004 ⎯ you will find an extract from the Treaty of 2003 at tab 19. For present purposes, I merely
note that Article1 again confirmed the existing Stat e border. The effect of this provision is now
being shown on the screen [graphic on screen]. The existing State border is described as
continuing:
“from border mark No. 1439 (spar buoy) along the external border of the territorial sea
of Ukraine around Zmiinyi island [that is, Serpents’ Island] to the point with
co-ordinates of 45° 05' 21" N, 30° 02' 27" E, which is the junction point with the state
border of Romania that passes along the extern al border of its territorial sea. The
territorial seas of the Contracting Parties measured from baselines [I note in passing,
that on the Ukrainian side, that means th e baseline on Serpents’ Island] shall be
permanently 12 miles wide at the point of their junction.”
53. As I have said, in our submission, this is a key provision for the present case. It
established, for the first time, the precise co-ordin ates of the point at which the outer limit of
Ukraine’s 12-mile territorial sea around Serpen ts’ Island intersects with the outer limit of
Romania’s 12-mile territorial sea.
54. The final sentence of Article1 then states that “Conclusion of new border-related
documents shall not be a revision of the exis ting border between Ukraine and Romania.” The
description of the point of intersection thus marks no change to, but only a precision of, the existing
State border –– that is, that border was already, under previous agreements, a territorial sea border
going only as far as the point of intersection of the outer limits of the two States’ territorial seas.
55. Madam President, there is no hint in Article 1 of this 2003 Treaty that there was already
an agreed boundary delimiting the two States’ continental shelf and EEZs beyond point F.
[Remove graphic from screen]
38
CMU, Ann. 3. - 49 -
56. Romania has tried to make something of a “declaration” that it made upon signature of
39
the 2003 Treaty and repeated, in slightly different terms, upon entry into force of the Treaty . On
both occasions, Ukraine responded vigorously 40. In our submission, no legal significance attaches
to these exchanges. The Romanian “declaration” was vague and was not, in any event, an agreed
term of the Treaty. It did not bind Ukraine. It could, at most, be regarded as a simple unilateral
interpretative declaration, to wh ich Ukraine responded in so far as this might have been thought
necessary or desirable. The Parties agree that the 2003Treaty fixes the final point of the State
border at sea, point F. And they agree that point F constitutes the starting-point for the delimitation
exercise now before the Court. Romania’s declaration changed nothing.
E. Conclusion
57. Madam President, that concludes my introduc tion to the principal agreements relevant to
the case.
58. One thing that emerges clearly is that, throughout the period of 50years from 1947 to
1997, all the border agreements and other documents agreed between the Parties were concerned
exclusively with the “State border”. They c oncerned the delimitation of the border between the
land and maritime areas under the sovereignty of the two States, that is, their respective land
territory, internal waters, and territorial seas. There were no agreements touching on the
continental shelf or EEZs.
59. That changed in 1997, with the Border Régime Treaty and the Exchange of Letters.
These agreements explicitly envisaged negotiations “to settle the problem of the delimitation of the
continental shelf and exclusive economic zones”.
60. Throughout all this period, the Parti es made no reference to existing agreements
concerning the continental shelf and the EEZs. The 2003 Border Treaty finally fixed the precise
co-ordinates of the endpoint of the State border, at a point virtually identical to that foreshadowed,
55years earlier, on map134. There is not the slightest hint, in any of the agreed documents of
1997 or 2003, or in the negotiations, of a pre-existing agreement on the subject of delimitation of
39
CMU, Anns. 37 and 39.
4CMU, Anns. 38 and 40. - 50 -
the shelf or EEZs. On the contrary, both Parties were clear that there was no such agreement. The
picture that emerges from the two strands of negotiation ⎯ on the State border, and on the shelf
and EZZs ⎯ is, in our submission, wholly consistent throughout the 55-year period.
61. Madam President, Members of the Court, that concludes my presentation. I thank you
for your attention. I would now request that you invite Professor Quéneudec to address you on the
applicable law.
The PRESIDENT: Thank you, Sir Michael. We now call Professor Quéneudec.
M. QUENEUDEC :
IV. LE DROIT APPLICABLE
Madame le président, Messieurs les juges, c’est toujours un honneur de venir devant la Cour
et je tiens à remercier le Gouvernement ukraini en pour la confiance qu’il a bien voulu me
témoigner en me priant de participer à la présentation de ses thèses dans le différend qui l’oppose à
la Roumanie. Je dois dire aussi ma tristesse et mon chagrin de ne plus voir à nos côtés l’aimable
compagnon qu’était Sir Arthur Watts.
Introduction
1. Madame le président, il me revient de plaide r devant vous la question du droit applicable.
C’est une tâche délicate, car il peut paraître à la fois présomptueux et inutile de prétendre exposer à
la Cour ce qu’est le droit applicable dans une affaire de délimitation maritime.
2. Toutefois, dans la présente affaire, la qu estion du droit applicable se présente sous un jour
particulier, qui justifie que l’on prenne le rique de fournir à la Cour quelques explications et
éclaircissements à ce sujet.
3. Le caractère particulier de la question du droit applicable tient ici à ce que, depuis le début
de la présente instance, la Partie adverse considère que les principes et règles applicables par la
Cour pour résoudre le problème de délimitation maritime qui lui est soumis sont avant tout, et par
priorité, ceux que les deux Parties avaient énumér és dans l’échange de lettres accompagnant le
traité de 1997. Selon la Roumanie, cet accord, qu’elle appelle «accord additionnel», comporterait
l’énoncé d’une sorte de lex specialis, en application de laquelle la Cour devrait se prononcer. - 51 -
4. Dans la requête, il était ainsi affirmé: «L’accord additionnel constitue donc une lex
specialis entre les deux Etats, et la délimitation demandée à la Cour doit être effectuée
41
conformément aux cinq principes énoncés à l’article 4 de cet accord.»
5. Ce point de vue a été réaffirmé par la suite , notamment dans la réplique, lorsque la Partie
roumaine a fait une comparaison pour le moins aud acieuse entre l’énumération contenue dans cette
disposition et les termes du compromis dans l’affaire du Plateau continental Tunisie/Libye , où la
Cour, nous dit-on, avait «expressément accepté que les Etats parties peuvent, dans les affaires de
42
délimitation, stipuler une lex specialis contraignante» («it expressly accepted that States parties in
delimitation cases may stipulate a binding lex specialis»).
6. Cette question a déjà fait l’objet de plusieurs observations dans les pièces écrites
présentées par l’Ukraine 43. Mais il est cependant nécessaire d’y revenir quelques instants à ce
stade de la procédure, en raison de la présentati on que la Partie roumaine en a faite durant le
premier tour de ses plaidoiries orales.
7. Dans le présent exposé, je m’attacherai donc en premier lieu à rappeler la position de
l’Ukraine quant à la place et au rôle que les principes énoncés dans l’accord de 1997 peuvent tenir
dans l’instance en cours ; car un évident désaccord persiste à ce sujet entre les deux Etats. Aussi,
une mise au point s’impose-t-elle. J’espère seulement, Madame le président, que cette mise au
point aura notamment pour effet bénéfique de dissiper l’impression «déroutante» -- pour reprendre
ses mots-- que mon ami le professeurPellet dit avoir retirée de l’argumentation présentée par
l’Ukraine à ce sujet dans ses pièces écrites 44.
8. La seconde partie de mon exposé sera en suite consacrée à la présentation des règles de
droit international qui sont effectivement applicables au tracé de la ligne unique de délimitation que
la Cour a été invitée à établir en l’espèce. En effet, ici aussi, derrière une apparente concordance de
vues quant à l’énoncé des règles applicables, il subsiste en réalité de sérieuses divergences dans la
manière dont chacune des deux Par ties conçoit la mise en Œuvre des principes et règles de la
41Requête introductive d'instance, p. 7, par. 9.
42
Réplique de la Roumanie (RR), par. 2.8 ; traduction du Greffe.
43Contre-mémoire de l’Ukraine (CMU), par. 6.10 à 6.22 ; duplique de l’Ukraine (DU), par. 2.22 à 2.30.
44CR 2008/18, p. 45, par. 32 (Pellet). - 52 -
délimitation maritime. Et, il ne semble donc pas inutile d’apporter quelques éclaircissements quant
à la position de l’Ukraine à ce sujet.
A. Mise au point concernant l’accord de 1997
9. L’accord par échange de lettres du 2juin1 997 fut signé et entra en vigueur en même
temps que le traité sur les relations de bon vois inage et la coopération entre l’Ukraine et la
Roumanie, conformément d’ailleurs à l’article2 dudit traité. C’est cet accord par échange de
lettres qui a établi la compétence de la Cour et qui a servi de base à sa saisine dans la présente
affaire.
10. On se bornera ici à rappeler deux aspects essentiels de cet accord au regard du problème
du droit applicable. L’un de ces aspects est relatif à la structure et au contenu du paragraphe 4 de
l’accord de1997. L’autre aspect sur lequel je voudrais attirer l’attention porte plus
particulièrement sur l’alinéa h) de ce paragraphe. Et on verra, à par tir de là, que la portée réelle de
ce paragraphe n’a rien à voir avec la portée que la Roumanie prétend lui conférer.
a) Premier aspect essentiel de l’accord de 1997
11. Le paragraphe 4 de cet accord (paragraphe que la Roumanie a préféré appeler «article 4»)
énonçait plusieurs principes, qui avaient été adoptés par les deux Etats en vue de servir de base à la
négociation d’un accord de délimitation. Il s’agissa it de principes directeurs dans la conduite de
ces négociations. C’est ce qui ressort on ne pe ut plus clairement des termes mêmes dudit
paragraphe, qui avait pour objet de fixer le cadre des négociations à venir.
12. Rappelons tout d’abord que ce paragraphe comportait un «chapeau» introductif, qui était
ainsi rédigé :
«Le Gouvernement de l’Ukraine et le Gouvernement de la Roumanie
négocieront un accord relatif à la délimita tion du plateau continental et des zones
économiques exclusives des deux Etats en me r Noire, sur la ba se des principes et
procédures suivants.»
13. Les alinéas a), b), c), d) et e) de ce paragraphe 4 énuméraient ces principes. On notera
incidemment que le principe énoncé à l’alinéa d) était d’une nature sensiblement différente des
quatre autres, puisqu’il ne se rapportait pas à la délimitation maritime proprement dite. Il
comportait en fait l’engagement de chaque Etat de ne pas contester la souveraineté de l’autre sur - 53 -
toute portion territoriale adjacente à la zone à délimiter, c’est-à-dire un engagement qui, en
lui-même, était étranger à l’opération de délimitation maritime elle-même.
L1’4l.inéa f) prévoyait ensuite que, sur la base de ces principes, les parties devaient définir,
au début des négociations, la zone à délimiter et s’abstenir d’y exploiter les ressources minérales
tant qu’une solution n’aurait pas été trouvée pour la délimitation du plateau continental, sauf à
prévoir une exploitation en commun de certaines parties de la zone.
L1’5l.inéa g) précisait en outre que les négociations de vaient s’ouvrir dans les trois mois
suivant l’entrée en vigueur du traité de 1997.
16. Et enfin, l’alinéa h) fixait un délai de deuxans dans lequel les négociations devaient
aboutir, faute de quoi la Cour serait saisie (je vais revenir dans un instant sur cet alinéa h)).
17. Mais, toute la structure et le contenu du texte de ce paragraphe 4 étaient conçus comme
établissant non seulement les conditions dans lesq uelles devaient s’ouvrir et être menées les
négociations sur la délimitation, mais aussi la conduite à tenir par les parties pendant le
déroulement de ces négociations.
18. C’est pourquoi il nous paraît difficile auj ourd’hui de vouloir détacher et isoler de
l’ensemble du paragraphe les alinéas qui comporta ient l’énoncé de principes devant servir de
guides dans la négociation, et il me semble donc difficile de venir prétendre que ces principes
s’imposent à la Cour en vertu de l’accord de 1997.
19. A cette première raison, tirée des termes mêmes de l’échange de lettres, s’ajoute une
autre considération d’ordre plus général. Lorsqu’il s’agit de procéder à une délimitation maritime,
la voie de la négociation et la voie du règlement judiciaire sont des voies totalement différentes.
Les paramètres susceptibles d’être pris en compte par des négociateurs et ceux qui peuvent être
retenus par un juge international ne sont pas les mêmes.
20. Alors que, dans une négociation, des c onsidérations d’ordre politique, économique ou
autre peuvent être prises en compte pour arrêter un tracé particulier de la ligne de délimitation, le
juge, quant à lui, ne peut que se fonder sur le droit. Il n’y a donc pas substantiellement de
continuité entre ces deux voies, même si, conformément au célèbre dictum de la Cour permanente - 54 -
dans l’affaire des Zones Franches qui a été cité l’autre jour de l’autre côté de la barre, le règlement
45
judiciaire des litiges est un «succédané» au règlement amiable .
21. C’est d’ailleurs la raison pour laquelle le juge international a toujours hésité à se fonder
en ce domaine sur la pratique des accords bilatéraux de délimitation, c’est-à-dire sur la «State
practice». En effet, comme il est difficile, voire impossible, de connaître les raisons qui, dans une
négociation, ont réellement motivé l’établissement de la ligne de délimitation maritime réalisée par
voie d’accord. et comme il est difficile aussi d’y discerner la trace d’une opinio juris , le juge
international s’est jusqu’ici bien gardé d’érig er les accords bilatéraux de délimitation en une
pratique génératrice de règles coutumières.
22. J’en viens maintenant au deuxième aspect essentiel de l’accord de 1997.
b) Deuxième aspect essentiel de l’accord de 1997
23. Ce deuxième aspect, Madame le président, a trait à l’alinéa h) du paragraphe4 de
l’échange de lettres de1997. Cet alinéa h) prévoyait que, faute de parvenir à la conclusion d’un
accord de délimitation dans un certain délai, l’un des deux Etats pourrait soumettre le problème de
délimitation à la Cour par voie de requête unilatérale, après l’entrée en vigueur du traité séparé sur
la frontière dont la conclusion était également pré vue par le traité de bon voisinage de 1997. Mais
cet alinéa h) ne précisait pas que les formules contenues dans les alinéas a) à e) du paragraphe
constituaient l’énoncé de règles particulières que les deux parties entendaient voir la Cour
appliquer pour le règlement du litige.
24. A l’audience du 2 septembre, le professeur Al ain Pellet nous a dit en substance ceci : si,
en 1997, l’Ukraine et la Roumanie avaient voulu lim iter l’applicabilité des principes à la phase des
négociations, elles n’auraient p as manqué d’introduire dans l’acc ord une disposition spécifique à
cet effet46. Fort bien. Mais ne vaut-il pas mieux dire , au contraire, que si les Parties avaient voulu
que la Cour, une fois saisie, statue sur la base desdits principes, elles l’auraient précisé sans
ambiguïté dans le texte du compromis lui-même ?
45
CR 2008/18, p. 47, par. 35 (Pellet).
46CR 2008/18, p. 46, par. 34 (Pellet). - 55 -
25. Dès lors, il semble bien que le consente ment de l’Ukraine et de la Roumanie de
soumettre leur différend à la Cour n’était accomp agné d’aucune détermination des règles que la
Cour devrait appliquer, à la différence d’autres affaires concernant la délimitation maritime portées
devant la Cour par compromis. Ce qui signifie que les deux Etats étaient convenus de s’en remettre
éventuellement à la Cour pour qu’elle tranche le ur différend conformément à l’article38 de son
Statut, c’est-à-dire en faisant application des règles du droit international relatives aux délimitations
maritimes entre Etats voisins, quelle que soit l’origine ⎯ conventionnelle ou coutumière, voire
oserais-je dire jurisprudentielle ⎯ de ces règles. Les conséquences qui peuvent en être tirées sont
importantes quant à la portée du paragraphe 4 de l’accord de 1997. C’est le troisième aspect de ma
mise au point.
c) Portée réelle du paragraphe 4 de l’accord
26. La Roumanie ne peut pas venir prétendr e aujourd’hui que le pa ragraphe4 de l’accord
de 1997 comportait un énoncé du droit qui serait appli cable par la Cour lorsqu’elle serait saisie du
différend. D’autant plus que le paragraphe4 de cet échange de lettres a désormais produit la
totalité de ces effets.
27. Que prévoyait exactement ce paragraphe 4? Il prévoyait, d’une part, que des
négociations seraient menées, sur la base de quelques principes directeurs, en vue de conclure un
accord de délimitation. Or il est établi et rec onnu que ces négociations ont échoué; et l’on voit
mal, dès lors, par quel miracle les principes qui devaient guider ces négociations auraient pu
survivre à l’échec de celles-ci. Le paragraphe 4 envisageait précisément cette éventualité, puisqu’il
prévoyait, d’autre part, qu’en cas d’échec des négocia tions le problème de délimitation serait porté
devant la Cour. Or, que je sache, la Cour a bien été saisie du problème, comme l’atteste le
déroulement de l’instance en l’affaire.
28. L’objet même de cette disposition a donc été entièrement réalisé. Tant et si bien qu’on
peut sans doute affirmer que le paragraphe 4 de l’accord de 1997 est désormais dépourvu de toute
pertinence dans les rapports entre l’Ukraine et la Ro umanie en tant que Parties à la présente affaire
devant la Cour. - 56 -
29. Cela dit, et afin que la position de l’Uk raine soit clairement perçue, il convient d’ajouter
une précision importante.
30. Il n’est pas douteux que la plupart des formules énoncées aux alinéas a), b), c) et e) du
paragraphe 4 de l’accord de 1997 correspondent, p our l’essentiel, à des principes ou des règles de
droit international applicables à la délimitation maritime que la Cour doit établir.
31. Toutefois, il convient de faire ici une dis tinction importante. Une chose est de dire que
ces formules, ou certaines d’entre elles, sont susceptibles d’être appliquées, totalement ou
partiellement, en tant qu’elles coïncident plus ou moins avec les règles du droit international que la
Cour doit en tout état de cause appliquer. Au tre chose est de considérer que les énoncés du
paragraphe4 de l’accord de1997 sont directement applicables en tant que tels dans la présente
instance devant la Cour et en suivant l’ordre dans lequel ils ont été formulés. Ce sont là
deux démarches fondamentalement différentes.
32. Ce que l’Ukraine a entendu contester et ce qu’elle persiste à refuser, c’est donc
l’application de ces énoncés au titre du paragraphe 4 de l’accord de 1997, puisque, répétons-le, les
principes directeurs qui y étaient formulés ne valaie nt que pour la conduite des négociations. Il est
cependant évident qu’on ne saurait refuser leur application éventue lle, en totalité ou en partie, en
tant qu’ils peuvent apparaître comme un refl et ou une expression du droit international
contemporain de la délimitation maritime.
33. Il convient précisément de se tourner à présent vers les règles de droit international qui
sont effectivement applicables en l’espèce, ce qui m’amène à aborder l’examen de la deuxième
partie de mon exposé.
B. Quelques éclaircissements concernant les règles de droit international
effectivement applicables en l’espèce
34. Apparemment, la situation est ici relativemen t simple. En effet, la Cour est appelée à
tracer une ligne unique de délimitation servant de frontière maritime entre les zones économiques
exclusives et les zones de plateau continental relevant respectivement de chacun des deux Etats.
Or, ces deuxEtats sont tous deux parties à la convention des NationsUnies sur le droit de la mer
de 1982, qui est en vigueur entre eux. Le droit a pplicable est dès lors constitué par les dispositions
de la convention relatives à la délimitation de la zone économique et du plateau continental entre - 57 -
Etats dont les côtes sont adjacentes ou se font face, c’est-à-dire les articles74 et83, et plus
particulièrement le premier paragraphe de chacun d’eux.
35. Le contenu identique de ces deux dispositions est bien connu. Qu’il s’agisse de la zone
économique exclusive ou du plateau continental, la délimitation doit à chaque fois être «effectuée
par voie d’accord conformément au droit international tel qu’il est visé à l’article 38 du Statut de la
Cour internationale de Justice, afin d’aboutir à [un résultat] équitable».
36. Si la règle ainsi énoncée prescrit la voie de l’accord négocié entre les Etats concernés, la
disposition conventionnelle en cause pose aussi une norme fondamentale de portée générale. Cette
norme fondamentale est celle de la solution équitable.
37. La Cour avait noté à ce sujet dans son a rrêt du 3 juin 1985 : «La convention fixe le but à
atteindre, mais elle est muette sur la méthode à suivre pour y parvenir. Elle se borne à énoncer une
norme et laisse aux Etats ou au juge le soin de lui donner un contenu précis.» ( Plateau continental
(Jamahiriya arabe libyenne/Malte), arrêt, C.I.J. Recueil 1985, p. 30, par. 28.)
38. Plus d’un quart de siècle s’est écoulé depuis l’adoption de cette norme fondamentale par
la troisièmeconférence des NationsUnies sur le droit de la mer. Depuis lors, le droit de la
délimitation maritime est sorti de la sphère d’incertitude et d’imprévisibilité qui l’entourait. Il s’est
affirmé et il s’est affermi au fur et à mesure du déve loppement de la jurisprudence de la Cour en la
matière. A tel point qu’il est possible de dire que ce domaine du droit international est aujourd’hui
parvenu à un certain degré de stabilité et de prévisibilité. Il prescrit de suivre un processus
comportant normalement deux étapes successives.
39. Il conviendra sans doute de rappeler ra pidement en quoi consiste ce processus avant
d’envisager chacune des deux étapes qu’il comporte.
Madame le président, sans chercher à introdui re une quelconque forme de suspens dans la
présentation de mon exposé, puis-je suggérer à la Cour de renvoyer à demain la suite de cet
exposé ?
The PRESIDENT: We have heard that proposal and that shall be done. Thank you for your
presentation thus far, Professor Quéneudec.
M. QUENEUDEC: Thank you. - 58 -
The PRESIDENT: That brings to an end the presentation for this morning by Ukraine in the
case concerning Maritime Delimitation in the Black Sea . The Court will resume at 10a.m.
tomorrow for the continuation beginning with the remaining part of Professor Quéneudec’s address
to us. The Court now rises.
The Court rose at 12.55 p.m.
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Public sitting held on Tuesday 9 September 2008, at 10 a.m., at the Peace Palace, President Higgins presiding, in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine)