INTERNATIONALCOURT OF JUSTICE
CASE CONCERNING MARITIME DELIMITATIONIN THE
BLACK SEA
(ROMANIA v. UKRAINE)
REJOINDER
SUBMITTED BYUKRAINE
VOLUME 1
6 JULY2007 i
TABLE OF CONTENTS
CHAPTER 1. INTRODUCTION ..................................................1...
.................
1 CHAPTER 2 .JURlSDICTION ANDAPPLICABLELAW .........................5.................
Section1. Junsd~ction......................................................
.............
Section . ApplicableLaw ..................................................
..............
A. The 1949-1 974 Agreements and the 1997 Exchangeof
Letters AreNot Agreementsof the Kind Referred toin
Articles7414)and 83(4)of UNCLOS .......................1........
B. The PrinciplesSet Out in the1997 Exchangeof Letters
Are Not. As There Set Out. Rules to be Applied by the
Court....................................................
...................
CHAPTER3 . THE STARTING POINT FOR THE DELIMITATION. AND
THE ABSENCE OF ANY AGREED PARTIAL
.....................................................
..................
DELIMITATION 17
Section1. The Extent of the AgreedMaritimeBoundary Line Alongthe
12 n.m. Arc AroundSerpents'Island ...........................17.
A. Introduction.............................................17......
.................
I
B. TheProcesVerbauxof 1949. 1961.1963 and 1974 .................
C. Maps and Sketches Contemporaneous with the 1949
Prods Verbal ......................................................
...
D . The Contemporary (949) Record ...........................8........
~ E. Non-ContemporaneousMaps ..........................................
The StatusoftheWaters on Each Side ofthe Agreed Line ........8.
1 Section .
A. Introduction...........................................48........
.................
B. Statusof the WatersUnderthe 1949 Proces Verbalor
OtherAgreedTexts .....................................................
C. Status ofthe WatersUnderthe International Law ofthe
Sea ....................................................
.................... D . The Alleged"All-Purpose"MaritimeBoundary ...............6...
Section3 . Conclusion ....................................................63..
...............
CHAPTER 4 . THECOASTALGEOGRAPHY .....................................6............
Section 1. Introduction....................................................5...
............
Section2 . The Relevant Coastsof Ukraine .................................7..........
A . Romania'sAttempt to SuppressHalfof Ukraine'sCoast .......7.
B . The Court's Jurisprudence Supports Ukraine's Position
on the Identificationofthe RelevantCoasts ...................0....
(i) The Tunisia-Li Cbyse.............................71.................
(ii) TheGuIfofMaineCase .............................7........
(iii) The Denmark-Norway (Jun Mayen) Case .............72......
The Cameroon-Nigeria Case ........................74.
(iv)
C . Serpents' Island as Part of the Relevant Coastal
Geography ..................................................5.....
........
Section 3. Romania's Coast...............................................79..........
A . Applying Romania's Projection of Coastal Segments
Theory to Its OwnCoast ...................................80......................
B . Romania's Artificial Distinction between "Opposite
Coasts"and "Adjacent Coasts" .............................8..........
C . Romania'sUse of SulinaDyke andthe Sacalin Peninsula
as Basepoints In Contrast to Its Disregard of Serpents'
Island........................................................
................
Section4 .. The RelevantArea ............................ ........8.4
A . The Northern Area Lying offUkraine's South-Facing
Coast......................................................84
.................
8 . The Eastern Triangle Which Concerns a Third State
(Turkey)...................................................86...
...............
C . The Small Sliverof Area in theSout h......................8....... CHAPTER 5. THE APPLICATION OF THE GEOGRAPHICAL FACTORS
IN THE CONSTRUCTION OF THE PROVISIONAL
EQUIDISTANCE LINE ............................................9............
Section 1. Introduction..................................................9..
............
Section 2. Selecting the Basepoints for Constructing the Provisional
Equidistance Line.............................................9........
...
A. The Relevant Basepointson Ukraine'sCoast ................90......
..........................
1 B. The Relevant Basepointson Romania'sCoast 92
Section 3. Romania's Biased Approach to Selecting the Relevant
Basepoints ................................................93......................
A. Romania'sInappropriateDisregard of Serpents'Island........3.
B. Romania's Flawed Contention thatSerpents'Island Is a
Relevant Circumstance...... .............................5.........
Section4. Conclusion ................................................96..
...................
CHAPTER 6. THE IDENTIFICATION OF THE RELEVANT
CIRCUMSTANCES ........ ......................................97................
Section 1. Introduction..................................................7...
............
Section2. The Enclosed Nature of the Black Sea and Third State
DelimitationsAre NotRelevant Circumstances ..................8.
Section . TheCoastal Geographyas a Relevant Circumstance ............10.7.
A . ApplicableLegalPrinciples ..............................107............
B. The Geographical Predominance of Ukraine in the
Relevant Area...........................................111..........................
The Relevance of Serpents'Island forthe Delimitati......1.14
~ C.
A . General Considerations..................................120......................
B. Licences Granted forthe Explorationof Oiland Gas .......1.21
C. Surveillance of IllegalFishing..........................127.................CHAPTER7 . THEPARTIES'DELIMITATIONLINES .........................133.......
Section 1. Introduction.....................................................
..................
Section 2. The FlawedNatureof Romania's Claim ........................34.....
Section 3. Ukraine'sDelimitationLine ..................................137...........
CHAPTER 8. TESTING THE EQUITABLE CHARACTER OF THE
DELIMITATION .................................................141..
.................
Section 1. Applicationofthe Proportionality Test.......................141..............
Section 2. he Principle of Non-Encroachment and So-Called
"Security"Interest..........................................24............
CHAPTER 9. SUMMARY OF UKRAINE'S REASONING .......................149...........
SUBMISSIONS
LIST OF ANNEXES LIST OF FIGURES
Figure3- 1 The AgreedBoundaryLinearoundSerpents'Island
A. ExtractofMap134
B. Extractof the Chart Submittedto the UNby Romaniain 1997
C. 2003 Treaty ontheStateBorder
Figur 4-1
Ukraine'sRelevantCoast
Figure 4-2 Ilustration of the UkrainiCoastEliminated by Romania
Figure4-3
Illustratiof the Area Excluded by Ukraine's CoastalProjectionsAccording
to Romania(basedon Romania's FigureRR5)
Figure 4-4 ProjectionofUkraine'sCoastalFronts (drawn as 200 n.m. arcs)
Figure 4-5 Illustrationof the RelevantandInelevaCntastsin theTunisia- LibyaCase
Figure4-6 IIEustratiofthe RelevantCoastsin theGulfof Maine Case
Figure4-7 Illustratiofthe RelevantCoasts in the Denmark -Noway (Jan Mayen) Case
Figure 4-8 TopographicalMap of SerpentstIsland
Figure4-9 Romania'sCoastal Projections
Figure4-10 The RelevantCoasts of the Partiesand the Relevant Area
Figure4-1 1 The DifferencesbetweenthePartiesregarding the RelevantAreaFigure 5-1 The Provisional Equidistance Line
Figure 5-2 Ukraine'sStraightBaselines notified to thUnited Nationsin 1992
Figure 6-1 Location of Interceptions of Turkish and BulgarianFishing Vessels by the
UkrainianCoastGuard
Figure 6-2 The Parties'Oil and Gasand FisheriesSurveillanceActivities
Figure 7-1 The Effect of Romania's Selective Use of Basepoints on the Provisional
Equidistance Line
Figure7-2 ExtractfromRomania'sFigure RR29
Figure7-3 Ukraine'sDelimitation Line
Figure8- l The Proportionality Test Appliedto Ukraine'sDelimitation Line
Figure8-2 The Proportionality Test, Taking into Account Romania's Treatment of
Ukraine'sCoast
The Proportionality Test, Taking into Account theCombined Relevant Areas
Figure 8-3
Proposed by theParties vii
LIST OFPHOTOGRAPHS
PhotographA AerialView of Serpents'IslandfromtheNortheast
Photograph B Aerial Viewof Serpents'Island from theWest -1-
CHAPTER1
INTRODUCTION
1.1. This Rejoinder is filedby Ukraine in accordance with the Order of the Court dated
8 June 2007, fixing6 July 2007 as the time-limitfothe submission of Ukraine'sRejoinder.
1.2. The initial statementofUkraine'scase was made inUkraine'sCounter-Memorial filed
on E9 May 2006, in which Ukraine responded to the case presented by Romania in its
Memo~al of 19 August 2005. Romania filed a Reply on 22 December 2006, and this
Rejoinderresponds to Romania'sReply.
1.3 In presenting this Reply Ukraine has taken full account the terms of Article 49,
paragraph 3, of theRulesof Court which reads:
"The Reply andRejoinder, wheneverauthorized by the Court,shall not merely repeat
the parties' contentions,but shallbe directed to bringing out theissues that still divide
them. "
1.4. In thisRejoinder Ukraine will accordinglyconcentrate on those issues that still divide
the Parties in the lightthe Reply submittedby Romania. In focussing in this wayon certain
issues only, and in therefore not repeating everything already said in Ukraine's Counter-
Memorial, Ukraine is notto be taken as inany way resilingfromthe positions whichit there
adopted, For the avoidance of doubt, Ukraine hereby confirms its previous expositionof its
position, exceptto the extent, if any, titmay be expanded ormodified by theterms of this
Rejoinder.
In short, Ukraine has found nothing in Romania's Reply which calls for Ukraine to
1.5.
withdraw or modify any of the positions which it adopted in its Counter-Memorial.
Accordingly, this Rejoinder will concentrate on demonstrating further the erroneousness of
Romania's position as developed in its Reply either cafreovo or by way of elaboration of
matters already set out in its Memorial. Ukraine will not respond to the Appendix toRomania'sRepfy where Romania addresses what it terms the "Diplomatic History Relative to
the Dispute". The historical matters raised therein are not relevant ta this case and are not
accepted by Ukraine, which has already commented on these matters as necessary in
Chapter 5, Section2, of its Counter-Memorial,
l.6. Ukraine'sRejoinder comprises9 Chapters, includingthis introductoryChapter.
1.7. Chapter 2 discusses the extentof the Court'sjurisdiction in this case, emphasising that
the texts which determine the jurisdictionof the Courtlimit itsjurisdiction to determining the
continental shelf and EEZ boundaries of the two States, and do not include the determination
of any maritime boundaries involving the territorial sea. Chapter 2 also addresses the law to
be applied by the Court in deciding upon the continental shelf and EEZ boundary between
Ukraine and Romania inthe Black Sea, demonstrating that, contrary to Romania'sposition,
the applicable law is the law to be applied in accordance with Article 38 of the Statute of the
Court and not, as Romania contends, various principles expressly aped by the Parties only
for the purposeoftheir (ultimately unsuccessful)negotiations.
1.8. Chapter 3 considers the starting point for the Court's delimitation task, which the
Parties agree lies at the point at which the outer limits of Ukraine's and Romania'sterritorial
seas intersect, as agreed in the2003 Treaty between Ukraine and Romania on the Regime of
the Ukrainian-Romania State Border,Collaboration and Mutual Assistance in Border Matters
("the 2003 Ukraine-Romania Treaty"or "the 2003 Treaty").' Chapter 3 shows that, contrary
to Romania'sposition, there is no agreed maritime boundary running further east than that
agreed point, and thus that there isno agreed partialdelimitation of the Parties' continental
shelf and EEZboundary beyond that agreed point. The Chapter goes on to consider thestatus
of the relevant waters, and shows that up to the agreed point the waters are territorial sea on
either side of the agreedline, and that beyond the agreed point and outside the limits of the
Parties' territorial seas they are high seas or opesea,The Chapter furtherdemonstrates that
Romania's thesis that some kind of "all-purpose" maritime boundary already exists beyond
that agreed startingpoint is untenable.
1 Ukraine'Counter-Memorial("UCM"),Vol. 2, Annex 3.1.9. Chapter 4 examines the coastalgeography relevantto the delimitation, and responds to
Romania'shighlyselective treatmentof the coastsof theParties which abut therelevantarea,
in particularRomania" attempt to leave out of account half of Ukraine's coastand Romania's
disregard of Serpents'Island. The Chapter shows that Ukraine's position regarding the
identificationof therelevant coasts isfully consistentwith the Court'sjurisprudence, and that
Romania's treatmentof its own coasts isinconsistent with its treatmentof Ukraine'scoasts.
Finally,the Chaptershows thatUkraine'sidentification of therelevant areais appropriate.
1.10. Chapter5 followsthat examinationby consideringhow the geographicalfactors areto
be appliedinthe constructionof the provisionalequidistanceline, and deals inparticularwith
the identification and use of the appropriate basepoints on both Ukraine'sand Romania's
coasts, and with Romania'sbiased approach to the selection of relevantbasepoints including
its disregardandmisuse of Serpents'Island.
1.13. Chapter 6 identifies the relevant circumstances which are required to be taken into
account fortheadjustment of theprovisionalequidistanceline in the interestsof arriving at a
line whichrepresents an equitableresult, includingconsideration of the geography of the area
and the Parties'oil and gas activities,and their coastguard activities.TheChapter also shows
that, contraryto Romania'scontentions, the enclosed natureof theBlackSea andthird State
delimitationsin the Black Seaarenot relevant circumstances.
1.l2. Chapter 7 sets out Ukraine'sdelimitationline and responds to the erroneous nature of
Romania'sclaim line which fails to reflect a properly constructed provisional equidistance
line and the relevant circumstancescharacterizingthe area. Chapter 8 then shows that the
equitableness of Ukraine" lineis borne out by considerations ofproportional y.
1-13. Chapter 9 concludes the presentationof Ukraine's case by briefly summarising
Ukraine'scase,pursuant to the Court'sPracticeDirection No. 11.Ukraine's Submissions then
follow.1.14. This Rejoinder is accompanied by one volume of documentary annexes which is
annexedhereto asVolume2. CHAPTER 2
JURISDICTION AND APPLICABLE LAW
Section 1. Jurisdiction
2.1. The Parties disagree about the scope of the Court'sjurisdiction in this case. The
disagreement is the direct result of (i) Romania'sadherenceto its unjustified claim that there
already exists an agreed all-purpose maritime boundary extending around the south of
Serpents'Island to a point approximatelydue east of that Island,and (ii) Romania'srefusal to
have regard to the actual terms in which the Parties agreed that their dispute should be
referred to the Court.
2.2. Ukraine has shown, and will again show in Chapter 3, that there is no all-purpose
maritime boundary around Serpents'Island: the suggestion that such a boundary exists is not
substantiated by any legal instruments and is simply wrong. This argument of Romania is
further undermined by the fact that the 2003 Treaty established the starting point of the
delimitation between the Parties' respective continental shelves and ExclusiveEconomic
Zones. In this first partof this Chapter,however, Ukraine willdeal only with thequestion of
jurisdiction. It is Ukraine's viewthat the Court only hasjurisdiction on the basis of what was
agreed in the 1997Ukraine-Romania Treaty and in paragraph 4(h) of the 1997Exchange of
Letters.' Those two texts are clear on the question ofjurisdiction. They show that the Court's
jurisdiction is limited todetermining the continental shelf andEEZ boundaries of Ukraine and
Romania. Article2, paragraph 2, of the 1997Ukraine-Romania Treaty refers tothe "problem
of the delimitation of their continental shelf and of exclusive economic zones in the Black
Sea"; and paragraph 4(h) of the 1997Exchange of Letters provides for recourse to the Court
in respect of the "delimitation of continental shelf and exclusive economic zones". No
mention is made of boundaries involving the territorial sea of either State, and such
boundaries are therefore excluded fromthe Court'sjurisdiction.
I
The Exchange of Letters dated 2 June 1997 iUCM, Annex 1, Vol. 2. The 1997 Treaty between
Vol. 2.e and Romania on the Relationsof Good Neighbourliness andCooperation is at UCM, Annex 2,2.3. It is Romania's thesis that Ukraine's maritimeboundaryforall purposes has already
been agreedand follows the territorialsea boundary to the south of Serpents'Island as far as a
point approximately due east of Serpents' Island (which Romania refers to as Point X), and
that to the south of that allegedlyagreed line the waters and their seabed and subsoil form part
of Romania'scontinental shelfand EEZ. On this (Romanian)view it follows that the maritime
boundary comprises three sectors:
(i) the boundary between the 12nrnterritorial seas of the two States as far as the
point at which the outer limits of their territorial seas intersect (which is the
point specifiedin Article 1of the Treaty of 17 June 2003on the Regime of the
Ukrainian-Romanian State Border, Co-operation and Mutual Assistance in
Border ~atters)?
(ii) the boundary between Romania's continentalshelf and EEZ on the one hand
and Ukraine's territorialsea around Serpents' Island as faras Romania's Point
X, and
the boundary between Romania'sand Ukraine's continentalshelves and EEZs
(iii)
beyond PointX.
2.4. Moreover, Romania accepts (as does 'Ukraine)that the issue of the boundary line
dividing the Parties' respective territorial seas up to the point (which Romania refers to as
Point F) where their outer limits intersect as agreed in the 2003 Treaty has not been referred
to the court; and that the Court's task in this case begins withthe boundary starting at that
point of inter~ection.~It follows that in Romania's viewthe Court'stask is to determine the
maritime boundary in sectors (ii) and (iii) identified above. Sector (ii), however, is (on
Romania's view)a boundary between the continental shelf and EEZ of one State (Romania)
and the territorial sea of the other (Ukraine): it is not a boundary between the two States'
2 UCM,Annex3, Vol.2.
3 Romania'sReply ("RR" para.4.7.
4 Romania's Memoria( l"RM"), paras. 7.19, 9.3; and RR, para. 8.40, whereRomania'sproposed
delimitationlinebeginsatPointF.continental shelves and EEZs. Even on Romania's ownview of the maritime situation it is,
therefore, not partofthe dispute which theParties have agreedto refer to the Court.
2.5. Romania, in the treatment of thejurisdictional issue in its ~e~l~,'does not address the
consequences which have to flow from the actuallanguage agreedby the Parties in expressing
their consent to refer their dispute to the Court: Romania simply ignores the agreed language.
Instead, Romania develops a completely misconceived argument designed to show that
"international courts do not consider themselves inhibited from establishing maritime
boundaries separating,on the one hand, the continental shelf (orthe exclusive economiczone)
of one party and, on the other hand, other maritime areas (including the tenitorial sea) of the
other party".6
2.6. This, however, misses the crucial point. The question for consideration is not the
Court'sgeneral competence to establish maritime boundaries between different categoriesof
waters, but rather the scope of what the Parties expressly consented to submit to the Court's
jurisdiction in the present case. That consent is fundamental tothe exercise by the Court of
jurisdiction in any givencase. It is a consentwhich is to be strictlyconstrued.
2.7. In the Counter-Memorial Ukraine showed7 that its position was comparable to that
adopted by the 1977Anglo-French Court of ~rbitration.~ As Ukraine noted, in that case the
Court held that it did not have the power under the terms of the Arbitration Agreement to
draw a line between the Channel Islands archipelago and theFrench coasts of Normandy and
Brittany because the line in that area would have been a continental shelf boundary for one
party and a territorial sea boundary for the other. Romania argues that Ukraine misinterprets
the Court of Arbitration's deci~ion,~but in doing so Romania itself misunderstands the
relevance of that decision for the present case. The Court of Arbitration referred to the task
entrusted to it byArticle 2(1) of the ArbitrationAgreement, which was to decide "what is the
course of the boundary (or boundaries) between the portions of the continental shelf
5 At RR, paras.1.4-1.15.
6 Ibid., para.1.12.
7 UCM,para.2.12.
8 Case concerning the Delimifafion of the ConfinenfalShelf between the United Kingdom of Great
Britain and NorthernIreland, andheFrenchRepublic, Decisionof 30 June 1977, U.N.R.I.A.A., ol.
XVIII.
9 RR, paras.1.6-1.9. appertainingto the United Kingdomand the Channel Islands and to the French Republic" -a
task whoselimitation to the continental shelf boundary was reflected alsoin the
l
As the Court then said, "It is, therefore, clear that the competence conferred on the Court by
Article 2(1) of the Agreement relates specifically to the delimitation in the arbitration area of
the boundary of the continental shelf'." The Court then noted the narrow and rock-strewn
character ofthe sea passagesbetween the Channel Islands and the French coasts of Normandy
and Brittany,and concluded that:
"the 'continental shelf boundary'which the Parties invite the Court to delimit in the
areas between the Channel Islands and the coasts of Normandy and Brittany must
traverse over almost its whole length waters either claimed by France as part of its
territorial sea or by the United Kingdom as part of its actual or potential territorial sea
andof its existing fishery one."'^
The Courtnoted that this meant that:
"in order to delimit any form of seabed and subsoil boundary between the Channel
Islands archipelago and the coasts of Normandy and Brittany, the Court would have to
decide a number of questions in dispute between the Parties regarding the delimitation
of the territorial seaof oneor other country."13
The Court accordingly askedthe parties what they considered to be the Court'sfunctions and
I
powers:
I
"with respect to the delimitation of the boundary in areas of seabed and subsoil which
certainly form part of the territorial sea of one or other Party or in regard to which
there is a difference between the Parties regarding their status as territorial sea or
continental she~f."'~
In the light of the parties'responses the Court, after noting that its competence derived from
the consentofboth parties, observedthat:
i
"it does not suffice to establish the Court'scompetence that one Party may consider an
area to be continental shelf when the other may not unreasonably maintain that any
i
I 10 Atpara.13of theDecision.
I I Ibid.
12
13 Ibid .ara.14.
14 Ibid .ara.16.
1 Ibid. delimitation of a boundary in that area will inevitably involve a delimitation of its
territorial sea"I5
TheCourtwent on to findthat:
"Inthese circumstances,the Court does not find itself empowered under the termsof
Article 2(1) of the Arbitration Agreement to delimit the seabed and subsoil bounda Y
between the ChannelIslands archipelago andthe coastsof Normandy and ~rittan~."'
and that:
"Inthe light of theforegoing,and havingregard to the geographical circumstances,the
preciseformulationof its competence in Article 211) of the Arbitration Agreement and
the repties of the Parties to the Cdust's questions regarding the problem of its
competence in the Channel lslands region, the Court considers that it is without
competence to delimit any seabed and subsoil boundary in the narrow waters situated
between the Channel Islands and coasts of Normandy and Brittany. In the Channel
Islands region, therefore,the Court'sdecisionmust be confinedto deciding the course
of the boundary of the continental shelf in the areas to the north and the west of the
Channel Islandsin so far as this does not involve the delimitation of the territorial sea
of either art^."'^
2.8. In thus holding that it lacked the competence to delimit continental shelf areas in
locationswhere to do so would involve itin delimiting territorialsea areas not unreasonably
claimed by either party the Court was clearly concerned not only (as Romania incorrectly
suggests1')with a boundary between areas bothof which were the territorial sea of the parties,
but also withaboundary betweenareas consistingof the continental shelf of oneparty and the
territorialsea of the other. . ,
2.9. The Angio-FrenchArbitration thus demonstrates that the Court of Arbitration, faced
with a cornpromis expresslylimited to a continental shelf delimitation, held itself to have no
competenceto delimit a maritime boundary involving either partfs territorial sea. The Court
IS Ibid., par19,
16 Ibid., par20.
l7 Ibid.,para.21.
18 RR, para.1.6.Itis, forexample,apparentfromthequotationfrom theCourt'sDecision given in para.
1.8 of Romania'sReply that the Court had inmind the consequence that "the 'continentalsher
bounday whichtheParties invitetheCourt todelimitin theweas between theChannel Islandsand the
coastsof Normandyand Brittanymust traverseoveralmost itswhole length waterseither claimedby
France as part ofitsterritoriasea, or by rhe UniledKingdom aspart of itsactual or potential
ierrilorial sea anditexistingfisheryzone"(Decision,para.14:emphasisadded).I.e.,theCourt was
clearlreferringtoa boundarybetweenwaterswhichin my given locationwere claimedas territorial
seabyeither Franceorthe UnitedKingdom,butnotnecessarilybyboth.simply applied, to the letter, the terms ofthe agreed comprumis: it would apparentIy have
been willing to go further if the two parties had consented, but they did not consent and
therefore the terms of the cornpromishad to be applied as they stood. That is precisely the
position in the present case. Consent is limited to the delimitation of the Parties'continental
shelves and EEZs, with nothing said about boundaries which involve their territorial seas.l9
Their consent to the Court's jurisdiction therefore excludes the determination of a maritime
boundary inthesector (ii)identifiedin paragraph 2.3 above.
2.10. That conclusiondoesnot, however,mean that the Court'sjurisdiction to determine the
Parties' continental,shelf and EEZboundaries begins at the point where Romania'ssector (ii)
ends, namelyRomania'sPoint X approximately due east of Serpents' Island, The Parties
agree2' that the Court's task is to determine those boundaries from the startingpoint of the
agreed point of intersection of the outer limiof their respective territorialse- i.e.t,e point
agreed in the 2003 Treaty. From that agreed point onwards the Court has jurisdiction, under
the express terms of the 1997Treaty and the 1997 Exchangeof Letters, to delimit the PaPlfies'
continental shelves and EEZs: i.e.,the boundary must be such that on each side of the
boundaryline thereneeds to be a continental shelf and an EEZ over which Ukraine, on its
side of the boundary, and Romania, on its side of the boundary,has its own sovereignrights:
the boundary to be delimited by the Court is thus, by virtue of the treaty language in which
their consent to theCourt's jurisdiction isexpressed, a boundary running betweenthe Parties'
respective continentalshelves and EEZs.
2.11. Romania'sthesis that the territorialsea limit around the south of Serpents'Island has
already been agreed tobe the maritime boundary not only has Eundamental substantive errors
which will be explained in the next Chapter, but is also inconsistent with the terms of the
Parties' agreement to refer their dispute to the Court: the Romanian thesis results in a
boundaryrunning between, on theone hand, Romania'scontinental shelf and EEZand,on the
other hand, Ukraine's territorial sea, and not, as required by the Parties' agreement to the
Court'sjurisdiction, between two sets of continental shelves and EEZs. Nor can Romania
argue that since (in Romania'sview) the 12mile limit around the south of Serpents'Island is
an"all-purpose" maritime boundary it delimits not only the Island'sterritorial sea but also its
19 Seepara.2.2above,
2Q Seepara,2.4 above.EEZ and its continental shelf such an argument would be inconsistent with Articles 55 and
76 of UNCLOS, both of which define those maritime zones as being zones "beyond" the
territorial sea-in legal terms a continental shelf is a zone lying to the seaward.of the outer
limit of the territorialsea, and theshelS outer boundary cannottherefore followthe same line
as the boundaryof the territorial sea.
2.12. Ukraine willshow in Chapter 3 that Romania'sunderlying thesis that there is already
an agreed maritimeboundary extending as far east as Romania'sPoint X approximately due
east of Serpents' Island, and that that boundary is throughout its length an all-purpose
maritime boundary, cannot be substantiated." For themoment it is sufficient to note that it
will there be shownthat the correctposition is that the maritime boundary agreed in the 1949
Proces Verbalextended at most to the intersection of the outer limit of Romania'sprospective
12 n.m. territorialsea with the 12n.m. territorial sea arc around Serpents'Island (effectively
the same pointof intersection as was agreed in the 2003Treaty), and that thereis therefore no
already-agreedfurther maritime boundary (all-purpose or otherwise) beyond thatpoint around
the south of Serpents'Island. The Parties' agreementto confer on the Court jurisdiction to
determine the boundaries between their continental shelves and EEZs confers on the Court
jurisdiction to determine those boundariesstarting from the agreed point of intersection of the
outer limitof their territorialseas.Their agreement to conferjurisdiction on the Court also has
the consequence thatthe boundaries tobe delimited by the Court must be such that, starting
from the agreedterminal point of their temtorial sea boundary, each Party has some zones of
continental shelf andEEZ immediatelyto the east and south of that agreed terminalpoint.
2.13. Since the Parties accept that their territorial sea boundary extends as faras the point
agreed in the 2003 Treaty, and that the delimitation of their respective continental shelf and
EEZ boundarieswas to begin at that point - as Ukraine stated in the negotiationsleading up to
the 2003 ~greement" and as Romania .agreesz3 - it is inconceivable that the Parties would
have agreed in that sense if there had already been an agreement on a maritime boundary
going right round the south of Serpents'Island to Romania'sPoint X lying to the east of the
Island.
21
22 See,respectively,below, Sections 1(paras. 3.2-3.65)and 2 (paras. 3.66-3.103)ofChapter3.
23 SeeUCM, para.2.14.
Seeabove,h. 4.2.14. Moreover, Romania, in its Application initiating the present proceedings and in the
final Submission stated in its Memorial, requested the Court "to draw [...la single maritime
boundary between the continental shelf and the exclusive economiczones of the two States in
the Black Since Romania accepts that the Court's task begins at the point of
intersection of the outer limits of the Parties'respective territorial seas as agreed in the 2003
rea at^, h e allegation that there already exists some all-purpose maritime boundary
extending as far as Romania's alleged PointX is inconsistent with the terms of Romania's
Application to the Court.
2.15. It is Romania'sartificial and baseless attempt to constructan allegedly already-agreed
and all-purpose maritime boundary as far as Romania's PointX which distorts the otherwise
simple and straightforward situation -namelythat:
in 2003 the territorial sea boundary was agreed to extend as far as the point
defined in the 2003 Agreement,
negotiations then began with the aim of agreeing upon continental shelf and
EEZboundaries beyond that agreedtemtorial sea terminal point, and
with the failure of those negotiations to reach agreementthe Parties agreed to
refer that outstanding issue to the Court.
Section 2. Applicable Law
2.16. It seems that the Parties take different positions on only two main points. The first is
whether the Soviet-Romanian Procks Verbauxof 1949, 1961, 1963and 1974 ("the 1949-1974
agreements") and the 1997 Exchange of Letters are agreements of the kind referred to in
Articles 74(4) and 83(4) of UNCLOS. The second is whether the principles set out in the
1997Exchange of Letters are, as there set out, rules tobe appliedbythe Court.
24 It is striking that Romania used different language in the Submission stated in its Reply where it
requested the Court "to draw a singletime boundary dividing the maritime areas of Romania and
Ukraine in the Black Sea".
25 See above, para. 2.4. A. The 1949-1974 Agreements and the 1997 Exchange of Letters Are Not
Agreements of the Kind Referred to in Articles 74(4) and 83(4) of
UNCLOS
2.17. Ukraine agrees that the 1949-1974 agreements and the 1997 Exchange of Letters
constitute agreements which are now binding on Romania and Ukraine. On that there seems
to be no dispute.
2.18. But Romania contends that those agreements are not only binding but are also
agreements of the kind referred to in Articles 74(4) and 83(4) of UNCLOS. Ukraine has
explained inits Counter-Memorial thatthose provisions of UNCLOS refer only to agreements
"delimiting the continental shelfIEEZ on the basis of international law" and that the 1949-
1974 agreements and the 1997 Exchange of Letters were not agreements of that kind and
therefore did not fall within Articles74(4) and ~3(4).~~
2.19. Ukraine set out the reasons which supported its interpretation of those Articles, in
effect that the structure of Articles 74 and 83 meant that the agreements referred to in
paragraph 4 of each of those Articles were agreements of the kind referred to in their first
paragraphs, i.e.agreements which effect "the delimitation of the continental shelf1EEZ
between States with opposite or adjacent coasts". Romania has not challenged Ukraine's
interpretationof those provisions of UNCLOS, and thereforepresumably agreeswith it.
2.20. Ukraine further showed that the 1949-1974 agreements and the 1997 Exchange of
Letters were not delimitation agreements of that kind.As Ukraine demonstrated, nothing in
the text of the agreements, or in their surrounding circumstances, made any mention of
continental shelEEZ delimitation or had any indirect effects related to such delimitation2'
Romania has been unable to give any reasons why, despite their silence on the matter, those
agreements should neveitheless be treated as delimitationagreements.
26 UCM, paras.5.98-5.103,5.114,5.117,6.24.
27 Ibid.paras.5.101-5.102,6.26. 2.21. As stated in Ukraine'scounter-~emorial,~~ the fact that Ukraine denies that the 1949-
1974agreements and the 1997 Exchangeof Letters delimited the continental shelf or EEZ of
the Soviet Union (and now Ukraine) and Romania does not mean that Ukraine denies their
binding character. But that binding character only goes as far as the terms of the various
agreements provide, and does not make them into continental shelf and EEZ delimitation
agreementswhen nothing in their terms suggests thatthat is their meaningand effect.
B. The Principles Set Out in the 1997Exchange of Letters Are Not, As There
Set Out, Rules to be Applied by the Court
2.22. At issue here is the status of the five "principles" set out in paragraph 4 of the 1997
Exchange of Letters (the "procedures" also set out in that paragraph are not in issue in the
present context). Those principles are introducedwith a chapeau to paragraph 4 which reads
as follows:
"The Government of Ukraine and the Government of Romania shall conduct
negotiations on the Agreement on Delimitation of the Continental Shelf and the
Exclusive Economic Zones of both States in the Black Seaon the basis of following
principles and procedures: "
2.23. It is clear on the face of this text thatthe five principles which were then set out were
agreedas "the basis" onwhich the Parties "shallconduct negotiations".
2.24. The Parties did not agree that those principles should apply also as part of the
compromis for the reference of their dispute to the Court in the event that the negotiations
were not successful. Ukraine agrees that the Parties could have done so had they wished: as
1 Romania has pointed out there are precedents for States identifying certain specific rules
which they wish the Court to apply. But the plain fact - and the plain language of the
!
governingtext - is that theParties did not do so on this occasion.
2.25. Their agreement to refer their dispute to the Court was not accompanied by any
l qualifications as to the rules to be applied by the Court. Rather, the Parties were content to
l
28 At para.5.103.allow the Court to decide the dispute in accordance with the rules of international law which
the Court would applyin thenormal way in accordance withArticle 38 of the Statute.
2.26. In its Reply Romania never directly addresses the point thatparagraph 4 of the 1997
Exchange of Letters expressly limits the application of the five principles tthe conduct of
negotiations. Instead Romania seeks to bridge the gap between negotiations between the
Parties and litigation before the Court by in effect arguing that such litigation is merely a
continuation of negotiations, that the Court acts on behalf of the negotiating Parties, and that
accordingly theprincipIeswhich the Partiesagreed would applyto the negotiations also apply
in the continuation of those negotiations by the Court acting{so it is said) on behalf of the
Parties.
2.27. This argumentmakes up in ingenuitywhatit manifestly lacks in merit. It cannot stand
scrutiny. Litigationbefore the Court is notjust a continuation ofpreceding negotiations,but a
specific means of dispute resolution. The Court, in deciding disputes referred to it, does not
act in this way "on behalf of the Parties". The Court is an autonomous judicial institution,
acting in the exercise of its own authority. Litigation isnot a negotiating process, but a
method of dispute settlement by which the Court is required to decide disputes by the
application of law.
2.28. Romaniaseeksto supportits positionby referring towhat a Chamber oftheCourt said
in ~zklfof ~aine~'. Romania portraysthis case as showing that "it isforthe Court to complete
whatthe Parties have not been able to achievethrough directnegotiations" (Romania'swords,
not the Chamber's). But thepassage fromthe Judgment quoted by Romania does not say or
even suggest thatlitigationis a continuationof negotiations, or that the Court acts on behalf
of the Parties, or thatthe Court must in reaching its Judgment apply the same rules as the
Partiesagreed to applyin their negotiations.On the contrary,the Chamber said:
"Recourse to delimitation by arbitral orjudicial means is in the finat analysissimply
an alternativeto direct and friendlysettlement betweenthe parties."30
29 RR,para,2.7.
30 Delimlfattonofrhe Marilime Bounliaryin the GuyoMaine Area, Judgmerzl,LCJ.Reports 1984, at
p.266,pxa. 22. Judicial delimitationishere correctly seen as an "alternative" to a negotiated settlement,not a
continuation of thevery negotiations which have already failed to result in anagreement.
2.29. It is important to emphasise that Ukraine does not object as a matter of broad
substanceto the five"principles" set out in paragraph 4 of the 1997Exchange of ~etters:~'it
is their applicationas sz~ch(i.e. on the basis of their inclusion in the 1997 Exchange of
Letters,and in the exact terms and order in whichthey are there set out] with which Ukraine
cannot agree. Those "principles" may well - andindeed in some respects dearly do -reflect
and are inspired by established rules of international law (including the Court's own
jurisprudence) which the Court will quite properly apply. But in those cases it is the
established rules ofinternational law as theystand when the Court deliversjudgment which
theCourt wil apply, not their partial reflectiointhe decade-old negotiating "principfes";and
in applying those estabIishedrules of international law the Courtwill, of course, in particular
applythem:
within the framework of other associated aspects of international law rather
than simplyas stated in and aspart of the bilateral 1997Exchange of Notes;
without such qualifications as might be read into them on the basis of the
l
i negotiating history of paragraph 4;and
l
without any implications as to relative importance or priority which might be
drawn from the order inwhichthey appear in paragraph 4.
I
l
2.30. It follows that Romania's assertion that"the principles of delimitation recognised by
the Parties in the 1997 Additional Agreement are to be applied by the ~ourt"~~ cannot be
l sustained.Romania'sattempts to baseargumentson the precise language of the "principles"
as set out inthe 1997Exchangeof Letters,andon the particular order in which they arethere
l set out,are entirely unjustified.
l
31 See UCM,para. 6.20.
32 RR, para2.10.
l
l CHAPTER3
THESTARTING POINTFOR THE DELIMITATION,ANDTHEABSENCE OF
ANY AGREED PARTIALDELIMITATION
3.1. The matters dealtwith in this Chapter arethose raisedprincipallyby Chapter 4 of
Romania's Reply, which in turn sought to respond to matters dealt with principally in
Chapter5 of Ukraine's Counter-Memorial.The Parties'pleadings have disclosed differences
betweentheirpositions in respectof two majorissues:
(1) How far along the 12 mm, arc around Serpents' Island does the agreed
maritimeboundary line run?
(2) What is the status of the watersoneachsideof the agreedmaritime boundary
line?
ThisChapterwill addressthese issues in turn.
Section 1. The Extentof the Agreed MaritimeBoundary Line Along the 12 n.m,Arc
Around Serpents'Island
A. Introduction
3.2. As to this firissue, there is no agreed maritime boundary ming fUrthereastthan
the point agreed in the 2003 Ukraine-Romania Treaty.' That point is located where the
12n.m,territorial sea arcaround Serpents'Islandintersects wittheouter limit ofRomania's
12n.m. territorial sea.Thatpointwas identifiedin Articll of the2003 Treaty as havingthe
coordinates45'05'21 "N, 30°02'27"E.That agreed point is depictedon Figure 3-IC, facing
page 36 of thisRejoinder.
1 UCM,Annex3, Vol.2.3.3. To the west (i.e landward) of that agreed point the agreed territorial sea boundary
follows the Serpents' Islandarc back toPoint1439 and thence back,via Point 1438, to the
mainland:this agreed territorialsea boundaryisalso depicted on that samesketch map.
3-4. To the east (i.e.seawards)of that agreedpoint there is no agreed continental shelf or
EEZ boundary, and it is the task of the Court in these proceedings to lay down that
continental shelf arid EEZboundary starting from that point. Both Parties agree on this:as
Romaniaputs it, "the principal importance of the 2003 BorderRegime Treaty [...listhatthe
finalpoint of the boundarydefined by the 2003Treaty(Point F)constitutes the starting point
of thedelimitation linewhich the Court is calledupon to e~tablish".~
3.5. Ukraine's positioncanbe summarisedasfollows:
The Prods Verbal of 1949,andthe subsequent Prods Verbaux of 1961,1963
(a)
and 1974 ("the 1949-1974 Proch Verbaux" or"the relevantProcks Verbaux"),
and certainother instruments, described a boundary extending out to sea no
furtherthan thepresent outerlimitof the Parties'12n.m.territorial seas;
@) whatever may have been the position by virtue of the 1949-1974 Procks
Verbaux and the other instruments,in 2003 Ukraine aridRomania agreedfor
the first timethat the outer limitsof their respec12 n.m. territorialseasmet
at the particularpoint identified in the 2093 Treaty, namely 45"05'21"N,
3Oo02'27"E; they thereby fixed their agreed maritime boundary as far out to
sea asthat point;
(c) having agreed their common territorialsea boundary, the Parties continued
their effortsto negotiate anagreementon the delimitation of their continental
shelf and EEZboundaries beyondthat agreed territorial sea limit on the basis
of the negotiatingprinciples setout in the 1997Exchangeof ~etters;~
2 RM, para.7.19;seealsoabove,para. 2.4.
3 UCM,Annex l, Vol2. since negotiations did not result in agreement being reached, that delimitation
(d)
issue has been referredto the Courtin these proceedings and is the basis of the
Court'sjurisdiction;
in these proceedings Ukraine puts forward a delimitation line which is based
(e)
on prevailing rules of international law,and which takes as its starting point
the territorial seameeting point agreed inthe 2003 Treaty.
3.6. On that last point Romania'sposition appears tobe that while Romania agrees that the
startingpoint for the Court's delimitation isthe territorial sea meeting point agreed in 2003,~
Romania contends that the first part of the resulting delimitation - i.e., to Romania's alleged
Point X, lying approximately due east of Serpents' Island - has already been agreed in the
ProcksVerbal of 1949 and subsequent instruments.
3.7. While Ukraine and Romania agree that the instruments of 1949 and subsequently
provided a boundary line going some distance along the 12 n.m. territorial sea arc around
Serpents'Island, they disagree how far along that arc any agreed boundary runs. For the
reasons set out in the Counter-Memorial and in this Rejoinder, Ukraine is of the view that
there is no agreement taking the agreed boundary as far as Romania's alleged Point X:
indeed,there is no agreedboundary going further alongthe Serpents'Islandarc than the point
of intersection of that arc with the outer limit of Romania's 12 n.m. territorial sea. That point
of intersection,agreed in the 2003 Treaty between Ukraine and Romania and constituting the
agreed terminal point of the two States'common territorial sea boundary, is the natural and
obvious starting point for the delimitation of their continental shelf and EEZ boundaries in
the watersbeyond that agreed point.
3.8. However, since Romania argues that the agreedboundary alreadyextends as far along
the arc as Romania's alleged Point X approximately due east of Serpents' Island, Ukraine
will, within the framework set out in paragraphs 3.2-3.5 above, demonstrate that Romania's
argumentis incorrect.
4
RM, para.7.19. B. The Proclts Verbaux of 1949,1961,1963 and 1974
3.9. The Proclts Verbaux of 1949, 1961, 1963 and 1974 are binding international
agreements but are not continental shelf or EEZ delimitation agreements. The Parties
agree that the relevant Proces Verbaux are binding international agreements, and that they
continue to be binding on Ukraine as successor to the Soviet Union. It follows that the
interpretation of those Procks Verbaux is governed by the applicable rules of international
law concerningthe interpretation oftreaties. Although the Vienna Convention on the Law of
Treaties 1969 does not formally apply to international agreements pre-dating its entry into
force, the provisions of Articles 31 and 32 of that Convention are also rules of customary
international law, and as such areapplicable to the relevantProces Verbaux.
3.10. Although binding, the relevant Procks Verbaux are only binding according to their
actual terms. AsUkraine has shownand will show again inthis Rejoinder, those terms do not
delimit the Parties' continental shelvesor EEZs. It is solely because the terms of the relevant
Proces Verbaux, including in particular that of 1949, are not "delimitation agreements" that
Ukraine, while accepting that they are binding international agreements, nevertheless does
not agree that those Procks Verbaux are international agreements of the kind referred to in
Articles 74(4) and 83(4) of (/NCLOS: those Articles apply only to agreements on the
delimitation of the continental shelf or EEZ.' Romania has not dissented from Ukraine's
interpretation of those UNCLOS Articles as applying only to delimitation agreements, and
thereforemustbe assumed to acceptits correctness.
3.11. Instead Romania asserts that the relevant Proces Verbaux do delimit a maritime
boundary extending as far as Romania's alleged PointX; Ukraine denies that this is so,6and
will demonstrateagain below thatRomania's argumentsto the contrary are incorrect.
3.12. None of the relevant Proccs Verbaux nor any other agreements say that the
agreed boundary extends as far as Romania's alleged Point X. This is evident from a
reading of thetexts of the relevantinstruments.
5 Above,paras.2.17-2.21;anUCM, paras.5.98-5.103, 5.114,5.117,6.24.
6 UCM, para.5.101. 3.13. Moreover, Romania admits that "lilt is truethat the final point of the boundary
following the arc of circle around Serpents' Islandis not specified in any of the Proces-
VerbauxC..
3.14. The task of the Joint Soviet-Romanian Commission which concluded the 1949
~ Procks Verbal did not include coverage of the maritime sector of the boundary. While
Ukrainehasno direct knowledgeof the Joint Commission'sterms of reference,itappears that
the Joint Commission was only entrusted with the task of demarcatinthe State boundary as
faras BoundaryPoint 1439 (that beinthe pointat which a line drawn from Point 1438in the
Danubedeltaintersected withthe 12n.m. territorialsea arc around Serpents'Island).
3.15. Thisis apparent fromthe Protocol recordingthe work of theMixed Soviet-Romanian
DemarcationCommission, contained in 3 volumes ofgeneral description of thedemarcated
boundary; these volumes were accompanied by 6 volumes of Proces Verbaux relating to the
individualborder marks.The Protocol on Description of Traversal of the State Border Line
between the Union of Soviet Socialist Republics and the Romanian People's Republic, the
demarcationofwhich took place in1948-1949, was prepared by the Mixed Soviet-Romanian
DemarcationCommission,Theopeningparagraph of Volume I of the Protocol states that:
"[...lthe Mixed Soviet-Romanian Commission on the Demarcation of the State
Borderbetween the Union of [Soviet] Socialist Republicsand the Romanian People's
Republic during the period since 11 September 1948 to 20 September 1949 made
demarcation of the stateborder from thejunction of the state borders of the Union of
Soviet Socialist Republics,the Romanian People'sRepublic and Hungarian Republic
(border mark "Tur") tothe Black Sea (border markNr. 1439)."~
Paragraph 8 of thatVolume of the Protocol records that the serianumbers on all theborder
marks from the point "Tur" 'wereconferred "in ascending order to the finalpoint ofthe
demarcated border line, locatedin the BlackSea starting fromthe Nr. l to Nr. 1439 [...ltt9
(Emphasi Sadded).
7 RR,para.4.43.
B Annex I, Vol2tothiRejoinder. Emphasisadded.
9 IbidEmphasisadded.3.16. Volume 111of the Protocol contains a description of the final sectors of the
demarcated State border, and states in its heading that it "includes the description of the
traversal of the Stateborder line from Border Mark No. 1052 to Border Mark No. 1439".1°
This is borne out by the title of Map 134 which accompanied the Protocol and which stated
that it depictedthe courseof theborderfrom "No. 1438 to No. 1439". '
3.17. There is thus some uncertainty at the outset whether there can be said to have been
any agreed boundary beyond Point 1439itself. This can only reinforce the doubts causedby
the fact that in 1949 there was no international acknowledgement of the concepts of the
continental shelf or EEZ." What is nevertheless abundantlyclearis that nothing whatsoever
in the 1949 documents gives any ground for suggesting that a maritime boundary was then
agreed extendingas far as Romania'salleged Point X.
3.18. As Ukraine has explained,I3the limit to which the Joint Commission depicted a
boundary at sea was thepoint atwhichthe outer limit of the Soviet Union's 12n.m. territorial
sea intersected with the outer limit of the prospective Romanian 12 n.m. territorialsea: a
boundary as far out to sea as that territorial sea intersection point was consistent with the
Joint Commission'sessentially territorialremit.
3.19. Moreover,insofar as the Joint Commission'sremitwas to delimit the whole boundary,
the absence of any delimitation of aboundary linegoing round the south of Serpents'Island
as far as Romania'salleged Point X demonstrates thatthat Point X was neveragreed in 1949
to be part of or the terminal point of the "whole"maritimeboundary.It is cleat that the Joint
Commission regarded Point 1439as "thefind point ofthe demarcated border line"."
3.20. The Joint Commission's preparatory work to the conclusion of the 1949 Prods
Verbal contains no suggestion of a maritime boundary going as far as Romania's
alleged Point X, or even beyond the Parties' existing or imminent territorialseas. The
Joint Commission held various meetingsto discuss its work.One such meeting was held on 5
L0
I I Annex 2, Vol2.Emphasisadded.
12 UCM,Figure5.6 (followingp.84 of theUCM),UCM,para.5.48,andbelow, para.3.27.
13 SeeUCM,paras. 5.69-5.74,especiallypasa.5.72.
14 UCM, para.5.47; ansee below,paras.3.42-3.46.
Seeabove,para.3.15. Emphasisadded. December 1948. Its proceedingswere recorded in ProcbsVerbal No. 10.'~Item 5 on the
meeting's agenda was "Drawing of the State boundary in the BLACK SEA". So far as
present1y relevant the Prods Verbal records:
"In respectto point fiveon the agenda, at the proposal of the Soviet delegation, the
following decisionwasreached:
-From this point (that divides in two halves the water expanse) t1e6boundary line
passes in a straight line on the azimuthof102",5 untilit meets theexteriormargio nf
themarine boundary stripsurroundinS gM17ETNAI [SERPENTS 'sand, with a 12
mile radius,andfurther on the exterior margin of the marine boundary strip of 12
miles.
-'Sheturning point of the boundary line in the Black Sea north of the SULINAPort
shall be marked with two pairs of direction poles and a buoy, and the point of
intersection of the State boundary line (azimuth 102",5) with the exterior margin of
the maritime borderband of theUnion of the Soviet Socialist Republics, describedby
the 12 mile radium around SMEINAI[SERPENTS'] island shall be marked by a
beacon.
l 3.21. This record shows thatthe 12 mile arc around Serpents' Island was simply to be the
line whose intersection withthe line running on an "azimuth of 102",5" fiom the stipulated
starting point established the locatiorl of Point 1439. Having established the location of that
Point,thetext shows that the boundary is tocontinue "further on the exteriormargin of the
marine boundary stripof 12miles". This text accordingly establishesonly that the boundary
runs alongtheSerpents'Islandarcbeyond Point 1439: but the text containsno indicationhow
l
much further the boundary was tocontinue, and itsterms (a) clearly say nothingto theeffect
thattheboundarycontinues toRomania's allegedPoint X, and (b) are entirely consistentwith
thelimitationof theboundary to the prospective territorisea intersectionpoint eventuallyto
1 be depictedon Map l34 attachedto the 1949 Proc6sVerbal.
15 RR,Annex2, Vol. 2.
l6 The stipulated startingpointhisIlnewas a pointdescribedin theparagraphomittedFromthe
passagquoted inthetextlyingbetweentheisletof Limbonhe SovietcoastandSulinaDykeonthe
Romanian coast.
I7 The correct translationshouldbe "ara,soccursinthe penultimalinof thisuoted passagthe
sameRussianword isusedineachcase.3.22. The actual terms of the relevant Procks Verbaux say only that the boundary goes
some (unspecified) distance along the Serpentsf Island arc. At the conclusion of its work
the Joint Commission recorded the results of its work in the 1949 general Procks verbal,"
which is the principal text in this ont text ,n^d (so far as here relevant) in individual Procks
Verbaux relatingto boundary Points 1438and1439.ThoseProcksVerbauxgaveeffect to the
decision made on 5 December 1948 and referred to in paragraph 3.20 above.'' The 1949
generalProds Verbal defines the location of the last agreedboundary point,Point 1439, as
being on the Serpents'Island arcand then continues:
''Thestate boundary fromstate boundary markNo. 1439 (pole) passes along external
lineof a 12-mileboundarystrip,leavingZrniinyiIsland on the sideof the USSR".~'
No other relevaa ntreed text takesmatters any furtherthan that. It is clearthat that text says
no more than that the boundary "passes along externalline of' the Serpents'Island 12 mile
arc. It manifestly does not say how far along that arc it passes, or that it continues to
Romania's alleged Point X.
3.23. Romania's attempt22 to read into the definitionofpoint 1439 itselfin the 1949 general
Procks Verbal an agreement that the boundary extends as far as a point approximately due
east of Serpents'Island clearly flies in the face of the language actuallyused. The relevant
passage on which Romania relies is that which, as set out in Romania's~e~l~:~reads as
follows(emphasisin original):
18 UCM,Annex 28,Vol. 3.
19 Subsequent texts essentiallyreferbatothat 1949text.
20 Thereference in theDecember1948 text toan azimuth"of102',5" became in the 1949ProcksVerbal
itself an azimuth of 102"30'p,resumablyonthe basis thatthe11,5"atthe end of the Decembertext
21 represented, in decimaltermhlf adegree.
The equivalent paragraphin the Protocol dealing specifically with P1439 reads:"[...and from
boundarymark No 1439 (spabuoy) the state boundarfylIowsthe outer limitof t12-mile maritime
borderlandIeaving [Zmiinyi] islaon theUSSR side"(UCM,Annex 30, Vol. 3).
22 RR,para. 4.48.
23 The equivalenttextas translateby Ukraineisat UCM,Annex28,Vol. 3, and reads as fo1lews:"The
State boundarymarkNo. 1439 (pole)isplaced on waterin a turnipoint ofstatboundary line which
passes in the Black Seaatthe intersection of a direct line,goescfrom stateboundarymarkNo.
1438 (Buoy) in azimuth 10Z030'0" ,ith the external edge of 12-mile maritime boundastriof the
USSR around of ZrniinyiIsland." "The border sign no. 1439 (beacon), is fixed in water, in the point where the State
border line going through the Hack Sea changes its direction, at theintersection of
the straight line going from the border sign no. 1438 (buoy} on the azimuth of
102"30,'0, with the exterior margin ofthe Soviet marine boundary zone, ofI2 miles,
surroundingSerpents' Island".
(The terms of the associated Protocol dealing specifically with the location of Point 1439'~
are not materiallydifferent .)
3.24. Romaniaarbwesthat this showsthat it was agreed that the boundary should go as far
as would "surround"Serpents'Island, i.e. t, Romania'salleged Point X approximately due
eastof the Island.For four reasons this argumentis manifestly incorrect.
(a) This paragraphof the 1949 Proces Verbal is not purporting to define the
course of the boundary along the Serpents'Island arc, but only the point at
which Point 1439 islocated. This it does by establishing a point of intersection
between two lines. One of those lines is the azimuth of 102"30'0";the other
line isthe Serpents' Island arc. As the text states, Point1439 lies atthe point
where the maritime border changes itsdirection, which is "at the intersection
of the straight line going from the border sign no. 1438 (buoy) on the azimuth
of 102"30',0 with the exterior margin of the Soviet marineboundary zone ...
surrounding Serpents'Island": i.e. ",t the intersection or' the azimuthand the
arc. What is described as "surroundingSerpents'Island" is not the boundary,
but the arc itself which constitutes one of the two lines whose intersection
defines the location of Point 1439. As a description of the arc, it is correcta
refer to the exterior margin of the 12 n.m. zone surrounding Serpents'Island:
but that isnot the description of l'hebounduty.
24 UCM,Annex 30, Vol.3. The paragraphinthe Protocol which iequivalenttothe quotedparagraph
from thegeneralProc6s Verbal reads: "Thisboundary markhas been emplacedonthe water inthe
turning poiof the boundaryline lyinin the BlackSeaat intersectionothe straight line extending
fromboundarymarkNo 1438 (Buoy)andfollowingazimuth 102"30'.0 wittheouter limiofthe 12-
milemaritimeborderland of theUnioof SSR around[Zrniinyi]island".See alsoabove,f20. (b) Romania'spurportedreading of the paragraph in question ignores not only the
actual text of that paragraph but also its place in the scheme of things
described in the 1949 Procks Verbal. Asjust noted, the paragraph inquestion
fixes the locationof Point 1439 by reference to the point of intersectioof two
lines. The continuation of the boundarybeyond that point of intersection and
along the Serpents'Island arc is covered by a separate, laterparagraph which
simply says that afterPoint 1439 the boundary"passes along external line of a
12-mile boundary strip,leaving Zrniinyi Island on the side of the USSR"(see
paragraph 3.22 above).That continuation of the boundary beyond Point 1439
says no more than that it "passes along external line of' the Serpents' Island
arc, without any indication of how far along that arc it passes: itcertainly
affords no basis forsaying that it establishes a boundary which follows the arc
as far as Romania'sallegedPoint X approximately due eastof Serpents'Island.
(c) Romania's that the text, byvirtueof the use of the words "around"
or"surrounding Serpents' Island",leads tothe conclusion that the end point of
the agreed maritimeboundary isat Romania'salleged Point X approximately
due east of the Island is doubly wrong.First, as alreadynoted, it is the line of
thearc which is described as going around Serpents'Island,not the line ofthe
bounday; second,Romania'spretended boundary line fromPoint 1439 to the
alleged Point X does not in any event go "around" or "surround" Serpents'
Island, butonly goes lessthan halfway round the Island.
(cl) For the reasons already Romania's reliance on the lravaux
prdparutoires forthe 1949 general Prods issimilarlymisplaced. The
relevantpart of theP~oces Verbal of 5 December 19482Qooe sotsupportthe
continuation of the agreed line asfar as Romania'sallegedPoint X, and in any
eventin so far asits exact terns differfrom the Ianguageeventually agreedin
thedefinitive 1949general Proces Verbal it is that latter text whichprevails.
25 RR, para.4.49.
26 Above,sub-paras.(a)-(c)
27 RR, para.4.59.
28 Seeabove, para.3.20. 3.25. None of the maps accompanying the relevant Procb Verbaux, or their associated
schematic maps or sketches, shows that the agreed boundary extends as far as
Romania's alleged Point X. This is apparent Eroma simple perusalof the maps, associated
schematic mapsand sketches in question.
3.26. Moreover, Romania admits that "Lilt is true that the final point of the boundary
following the arc of circlearound Serpents' Island [...is not shown on any of the sketch
map~t1.29
3.27. Of the geographc depictions which are contemporaneouswith and an integralpart of
the 1949 Prods Verbal, Ukraine has drawn attention to the obvious and overriding
importanceof Map 134.~ Althoughnotat the scale referred to in the 1949ProcksVerbal, and
although the Map statesin itsheadingthat it only depictsthe border from Point 1438to Point
1439, i.e.i, doesnot purport to depict theborder beyond Point 1439 andalong the Serpents'
Island arc,itneverthelessappears tobe, snd has been acknowledgedby Romania tobe,3'the
map intended to be referred to inthe Proces Verbal as themap covering this maritime sector
of the border. However, whereas the mainland depiction continues right to the edge of the
map, Map 134depictsa maritimeboundarythe final point of which stops shortof theedge of
themap, with no indication (either by words,or a depiction ofthe line right to the edgeof the
map, or by an arrowpointing in the desired direction, or in anyother way) that the maritime
border might have been intended to continue any further along the Serpents'Islandarc. It is
clear,as a demonstrablematter of fact,that Map 134 depicts aborder which ends only a short
distance along theSerpents'Island arc.
3-28. Romaniasuggests that if significancehad been attached to the final point depicted on
Map 134 thepartieswould not havehesitated to describewithprecisionthat one last
The same applies,of course,to the failureof the parties to describe with precisi-noreven to
29 RR, para4.43.
30 UCM, paws.5.48-5.50,5.132-5.135,aFigures5-2, 5-and5-15.
31 RM, para.4.6.
i 32 WZ,para.4.52.mention in general terms - a finalpoint such as Romania'salleged Point X. Instead, what the
parties did expressly agree in the 1949 documents was that Point 1439 itself was "the final
point" of theborder.33
329. Moreover, the failure of theparties to specifywith exactitude the location of the final
point depictedon Map 134is entirelyconsistent with the view that the pastieswere seeking to
establish aboundary only as far out to sea as the pointatwhichthe outer limit of the Soviet
Union's E2 mm. territorial sea intersected with the outer limit of Romania's anticipated
imminent but not yet enacted extension of its territorial sea to 22n.rn.:pendingthe enactment
of the necessary Romanian law it would not have been possible to gve geographical
coordinates forthe point of intersection, althoughits approximate location couldbe - and was
- indicatedin Map 134.
3.30. It is important to note that Map 134 was provided by Romania as part of its
~emorial.~~This reflects an aspect of these proceedingswhich is of considerable concern to
Ukraine. Before 1991 the relevant dealings, and particularly the dealings reflected in the
Procks Verbaux of I949 and subsequently, were between Romania and the Soviet Union. It
follows that of the Parties to the present proceedings before the Court it is only Romania
which has access to the relevant dotsumentation.Ukraine, and the Court, is dependent upon
Romania having drawn attention to items inthe documentary record which may be relevant
to the presentproceedings. As with Map 134 itself, Ukraine is dependent upon what Romania
discloses: if, as in that context, Romania states that the Map is the Map intended to be
referred to inthe 1949 Proc6s Verbd, Ukraine (and the Court) is in no position to challenge
that statement (otherwise than by an examination of what the document sayson its face, orby
reference to surrounding circumstances).
3.31. It is against thatbackground that Ukraine noted with concern that Romania, since
completing its Memorial, has "discovered" further As Romania describes its
"discovery"it consists of:
33 Seeabove,para.3.15.
34 RM, para4.6,and All inRomania'sMap Atlas.
35 RR,para.4.65. "acopyof volume I of the 1949Catalogue of Maps(containing 5 schematicmaps and
134 maps depicting various segments of the RomaniantSoviet boundary, as well as
representationsof the border marks used to demarcate the boundary). Some further
individualcopies of particular folihave alsobeen located."
3.32. By letterof 14 March 2007 Ukrainerequestedthe Registrar to seek fromRomania
further information about this "discovery", and the Registrarwrote accordingly to Romania
on 17March2007.In its response,Romania, in its letterof 3 April2007, stated asfollows:
"Romania has reproduced in its Reply the only plates and maps in the Volume l of
theCatalogue or among the individual copies of particular folios that ithas located
thatare relevant for the dispute before the Court. The other plates or maps that
Romaniaholds do not depict the maritime border and can be of no assistance for the
task ofthe Court."
3.33. Ukraine is grateful for this assurance.However,Ukraine feels constrainedto observe
that since "134maps" have been discoveredin the Catalogue, itseems probablethat Map 134
is the last of that Catalogue: yet Maps 133 and 134 were already available when Romania
filed its Memorial.It is odd that the remainder of the maps only came to notice during the
preparation ofRomania'sReply.
3.34. Romania attaches to its Reply two of the "schematic sketches" which it has
"discovered", which itrefers to as Plates I and V. Given the terms of Romania'sletter of
3 April2007, Ukraineassumes thatnofurther maps, sketchesor schematic mapsforming part
of Romania's"discovery" are relevantto the presentproceedings.
3.35. Plates I anV are relied on by Romaniaas showingSerpents'Island, and both are said
to "depict theboundary around it".jHowever, they do notdo so, irrespectiveof whether that
boundary is said to go all the way around Serpents' Island (as Romania's extensive
interpretation of that word would imply)37or even part way round it as far as Romania's
alleged Point X: both, like Map 134,only depict a Iinegoing a short way along the Serpents'
Island arc, although admittedly going a little furtherthan the line shown on the definitive
Map 134.
36 RR,para.4.65.
37 See abovepara.3.24(c).3.36. But even so, forthereasonsto be mentionedPlates I andV areaf littlevalue so faras
concerns depictionsof themaritimeborder, and in particular of its alleged distance around
theSerpents'Island arc.
(a) Map 134appears tobe, and is by Romania'sadmission, themapreferredtoin
the l949 ProcksVerbalandcanthereforebe taken tobe a representation of
what was intendedby thereferencein thatProces Verbalto the borderwhich
"passesalong externalline of' the Serpents'Island12 n.m. arc; by contrast
Plates I andV have no such directconnection with the relevanttext of the
1949Psoc&s Verbal.
(b) Indeed,whileMap134 is named as a "Map" ("Karts") attheheadof thepage,
PlatesI and V haveno pretensionsto being "Mapstb 'ut are only said tobe
schematic maps ("Schema").
(c) PlatesIandV areatverymuchsmallerscales eventhanMap 134:theirscales
are respectively1:1,500,000, and 1500,000, compared with the 1:150,000
scale awhichMap 134 wasprepared.
(d) Thisvery muchreducedscale of PlatesI and V isin keepingwith theirstatus
as "Schema",andmakes neitherschematic map an appropriatebasis for a
boundarydelimitation.
(e) Neither map was prepared for the purpose of showing a boundary
delimitation:thepurposeof PlateI is to show whichof the two Stateswas
responsibleforthedemarcationworkin each of theeight sectorsinto which
theboundarywas divided,whilethepurposeof Plate V is toprovide a keyto
the areascoveredby Maps95-133,borderpoints 1230-1439.Neitherof these
purposes - areasof responsibility,and map location - relatedirectlyto the
allegedterminalpointof theagreedborder. Moreover, neitherPlatesupports the use whichRomania seeksto make of it.
(f)
(i) On Plate I Romaniaasserts that "[tlhe area of the Danube Delta andthe
maritime boundaryis Sector VIII. It is coloured red, indicating that the
demarcation works, as well as the preparation of maps covering that
sector, was a Soviet responsibility".38However, the copy of Plate I
which appears atFigure RR18 and the "replica" deposited by Romania
with the Court does not bear this out: the red colouration of Section
V111stops at the coast and does not extend out to sea at all; it does not
therefore show which State was responsible for demarcation works in
the border areaextending out to sea.
(ii) As for Plate V, it is obviously unreliable and cannot be taken at face
value. Romania assertslg that it "provides a key to the location of
specific maps from Nos. 95-134", while going on to note that "the
border sector covered by Map 134 is not specifically indicated". But
the Plate doesnot even purport to dealwith Map 134:its heading states
that it covers Maps Nos. 95-133, and indeed its depiction of map
locations ends with Map 133. Notwithstanding its limitation to Map
133, the Plate does in fact depict Point 1439 even though not the Map
(i.e., Map 134)covering that Point.
(g) Finally, despite Romania's assertion4' that the two Plates "clearly depict the
boundary on the 12nm arc around Serpents'Island, with areas appertainingto
Romania on the other side of the line", such alleged clarity is manifestly
lacking. The Serpents' Islandarc is indeed identifiable on both Plates, but
neither Plate includes any indication that waters to the south of the arc
appertain to Romania.
38 RR,para.4.66.
39 Ibid .ara.4.67.
40 Ibidp.ara.4.68. -32 -
3.37. In short, the two Plates recently "discovered" by Romania are of scant value in
determininghow far "along" the Serpents'Island arc the boundary agreed in 1949 extended.
The primary map in this context is that which, as Romania accepts, is the map - Map 134 -
referred to in the relevant part of the 1949 Proces Verbal, andnot these "schema" depictions
which are unsuited for, and not intended for, use as boundary delimitations. Map 134is the
only officially agreed map contemporaneous with the 1949 Procb Verbal which can be
invokedin order to show whatwas meant by the text'streatment of the maritime sector of the
border.
3.38. Ukraine's treatment of Map 134 is well-founded. The line along the Serpents'
Island arc depicted on Map 134 stops at a point whose coordinates are approximately
45"05'24"N,30002'17"~~'.That is a fact, and it is undeniable. It is thefact that the line stops
where it does which is conclusive for the extent of the parties' agreement in the 1949 Procb
Verbal.
3.39. Romania seeks to discount the significance of the fact that on Map 134 the boundary
line as depicted stops some way short of the edge of the map.42Romania, however, does not,
and cannot, deny that as a matter of fact the line does stop short of the edge of the map,
whereas therelevant mainland coast continues to the edge of the map. Yet Romania says that
"Map 134bears no indication that it was intended to depict the final point of the boundary
But Map 134 did not need to bear any such express indication, given the clear fact
that it does stop where it does. Rather it is Romania which needs to show some indication
that despite the fact that the Map'sline stops where it does, it was nevertheless intended to
continuemuch further. Such an indication would have been easy, either by express words to
that effect,or by some symbol in that sense (e.g.,an arrow attached to the end of the line as
depictedshowing that it continued).Yet nothing of that kind is evident on the Map. But, says
Romania, "in any case, such a conclusion [i.e .h,t the end-point of the Map's line was the
final point of the agreed boundary] would be. inconsistent with the clear terms of the
instrument to which it was annexed".44That instrument was, of course, the 1949 general
I 41
As calculated by Romania-see para3.45,below. These coordinates can only be approximate since it
42 is impossible to calculateexact coordinates on thebasis of a map at a scaleof
43 RR,paras. 4.53-4.59.
44 Ibidp.ara.4.55.
Ibid para.4.55.Proces Verbal: but, as Ukraine has shown - and as in any event even a glance at its terms
demonstrates - there are no "clear terms" in that instrument which say anything about the
final point of the boundary being Romania's allegedPoint X or any other point beyond the
end-point of theline depicted on Map 134.
3.40. As for thesuggestion that since Map 134 does not depict all the mainland features in
any detail even thoughthere was ample room to show more and that therefore no weight is to
be attached to the gap between the end of the boundary line as depicted and the edge of the
~a~,~i~ t is important to take full account of the purpose being served by Map 134. It was
intended specifically toshow the boundary which had been agreed in the Procks Verbal to
which it was attached.It was a boundary map, and it showedthat boundary as agreed, along
with such other detail as was relevant. It is inconceivable that, by some kind of oversight, a
boundary map should not at least show the agreed boundary accurately and up to its end
point, or with some kind of indication thatits end point lay beyond the end point of the line
depicted on themap -but there is no suchindication.
3.41. Romaniaseeksto show that othermaps annexed to the 1949 Proces Verbal only show
the geographical features relevant to the boundary sector in question even though there was
space available forthe depiction of other features, and refers in this connexion to Map 133
(reproduced as FigureRR15 at page 82 of the ~e~l~)." As Romania goes on to say, "It is
clearly visible that, in spite of the available space47,only parts of the territories of the two
States are depicted". But this is entirelybeside the point. Ukraine does not say that more of
the mainland opposite Point 1439 should have been depicted on Map 134:Ukraine'spoint is
different, namely thatgiven that on Map 134the Romanianmainland coast and territorial sea
were depicted right up to the southern edge of the Map, the fact that the depiction of the
boundary at sea stops short of the edge of the Map shows that the boundary was indeed
intended to stop at the end point of that depiction. In this respect the comparison with Map.
133relied on byRomania is revealing.Although it is a map purporting to covertheboundary
from Points 1436 to 1438, it does in fact go beyond Point 1438 in the direction of the next
45 RR,para.4.57.
46 Ibidpara.4.59.
47 Thetextsays "place",but"space"wasclearlyintended.Point, Point 1439 (which is not itself shown) -and the line, going towards that off-map Point
1439,goes right to the edge ofthe map, thus clearly indicating that therewas more to come.
Had it been the intention that Map 134 should depict a line continuing right round Serpents'
Island to Romania's alleged PointX then, precisely on the basis of the precedent established
by the immediately preceding map,one would have expected the line on Map 134 to go right
to the edge of the Map and so indicate that the boundary continued further. But that was not
the intention, and the depictionof the boundary lineon the Map accordinglystopped where it
did.
3.42. Ukraine, even though itis not in possession of all the negotiating material availableto
Romania, sought to provide an explanation for the choice of that particular terminal point.
Ukraine noted that the distance of the terminal pointalong the Serpents'Island arc was such
as to subtend an angle which Ukraine, in its Counter-Memorial, referred to as
"approximately" or "about" 22";' and suggested that that point was at approximately the
point at which the external limit of Romania's soon-to-be-announced 12n.m. temtorial sea
boundary would intersect with the Serpents'Island arc. Itis noteworthy that Romania, which
must be assumed to know the facts about its own legislation and which alone of the Parties
before the Court has access to the negotiating records, does not contradict Ukraine's
explanation for the terminal pointof the boundary line as depicted on Map 134. The most it
says49is that "even if this assessment were true" (thereby implying that Romania does not
accept it as true, but without giving any other explanation about its legislative process in
1949-1951 in relation to what was to become Decree No. 176 of 195150),and that the
assessment "is not supported with arguments in Ukraine's Counter-Memorial". This
conclusion, however, ignores both the fact that it is Romania and not Ukraine which has
access to the relevant facts, and the fact that Ukraine was nevertheless putting forward a
circumstantial explanation which fitted the known facts: these were that the end point of the
boundary depicted on Map 134in fact (as to whichsee further below, paragraphs 3.45-3.46)
approximatelycoincided with thepoint of intersectionof the outer limits of Soviet-Romanian
temtorial seas, that Romania moved to a 12 n.m. territorial sea shortly after the 1949 Prods
48
49 Seee.g. UCM,paras. 5.75,5.77(i).
50 RR,para.4.60.
RM, Annex 80, Vol. 3. Verbal wasconcluded, and that States typically extend their temtorial seas only after careful
thought so that it is fair to assume that the possibility of extending Romania'sterritorial sea
was already under consideration in September 1949. It was open to Romania to provide
evidence that ithad not begun to think of any extensionof its temtorial seabefore September
1949,but Romania has not done so.
.
3.43. Romania subjects Ukraine's suggestion to a superficially meticulous geometric
analysis.5'Ukraine'sassertion that the arc subtended an angle of approximately or about 22"
is met with the counter-assertion that "the arc between Point 1439 and the final point shown
on Map 134in fact measures i.e., 23" with no qualification. Romania'spurportedly
more exact calculation is in fact approximative. While it is difficult to be really precise with
calculations of this kind when using depictions on a map at a scale of 1 :150,000, even so a
somewhat stricter calculation (which was expressly not Ukraine's intention in its Counter-
Memorial) showsthat the angle subtended is not exactly23" as Romania asserts,but appears
to be between22.6" and 22.7".
3.44. Then Romania notes that Ukraine measured Romania's alleged prospective 12 n.m.
territorial sealimit from the present terminal point of the man-made Sulina Dyke rather than
from the terminal point as it was in 1949. Romania nowhere gives a clear and precise
statementof the lengths of SulinaDyke at relevanttimes.Moreover, this Romanian argument
simply highlights the difficulty of calculating precise distances off-shore when the "shore" is
represented by a man-made feature which at all relevant times has been still in process of
53
construction.
3.45. What Romania cannot deny - and even on its own figures admits - is that the final
point depictedonMap 134 is as a matter of simplefact within a very few metres of the point
agreed in the 2003 Treaty as the point of intersection of outer limits of Ukraine's and
Romania's territorial seas.Romania calculates the coordinates of the final point depicted on
51
S2 RR,paras. 4.61-4.64.
53 Ibid.,para. 4.63.
Constructionactually began in 1859,but in a differentdirection from that now takenby the Dyke. The
reorientation of the Dyke into itspresent shape began inand was extended gradually thereafter
until itreached its present lengthwhere its terminal pointis some dozen miles fromthe natural shore
line. It is impossible to be more precise because the continuous work of deepening the navigable
channel results in the Dyke'slength continually changing, extending up to several hundred metres a
year intothe Black Sea.Map 134, as shown in the white box near the bottom of Figure RR1754, as being at
45"05'24"N,30°02'17"E. The equivalent point agreed in the 2003 Treaty has (as the same
Figure shows) the coordinates 45O05'21 "N, 30°02'27"E. Consequently the final point on
Map 134,on Romania's own calculations, lies only 10" longitude and 3" latitude away from
the final point agreed on the territorialsea border agreed in the 2003 Treaty, i.e. a,difference
of respectively only about 93 metres (north) and 219 metres (east) - an insignificant
discrepancy when the large scaleof Map 134 and improvements over the last half-century in
hydrographic technology are taken into account. The virtual identity between those two
points cannot be dismissed as no more than "a coincidence", from which no conclusion can
be drawnas to what was agreedin 1949.~'
3.46. Whatever the precise calculations, and whatever the precise reasons for the adoption
of the terminal point of the line depicted on Map 134,a comparison ofthree depictions of the
boundary line along the Serpents' Islandarc is very revealing. These three depictions are: (i)
the distance along the arc depicted on Map 134, (ii) the equivalent distance depicted on the
chart submitted by Romania in 1997 when notifying the United Nations of its straight
baselines, apd (iii) the equivalent distance resulting from the 2003 Ukraine-Romania Treaty
establishing the location of the agreed outer limitof their common territorial sea boundary.
These three depictions, which are reproduced together at Figure 3-1, opposite, show a
remarkable similarity. The two latter depictions are expressly related to the outer limit of
Romania'stemtorial sea, and it is clear that, with due allowance being made for uncertainties
existing at the time and advancesin hydrography and cartography over the last half century,56
Map 134 was intended to preview that same external limit. Romania seeks to dismiss these
evident similarities as merely "coincidental and [having] no significance for the present
dispute".57Yet the similarities are so evident even at a cursory glance that they cannot be so
glibly dismissed. Moreover, as shown in the preceding paragraph, according to Romania's
own calculations the final point on the line depicted on Map 134 and the final point of the
54
RR, p. 86.
56 Ibid.,para. 4.64.
In the Frontier Dispute, Judgment,I.C.J.Reports ,. 554, at p. 582, para. 55, the Chamber of the
Court noted that the technicalreliability of maps "has considerably increased, owing particularly to the
progress achieved by aerial and satellite photography since the 1950s". Even more so is this true of
57 developments in the 20 yearssince the Court'sJudgmentincase.
RR,para. 4.6; see alsoRR,paras. 4.64 and4.147.l ill a Imaritime boundary agreed in 2003 are only separated by an extremely short distance. The
virtual identityof those points speaks for itself, and shows the 2003 agreement to have been
essentially confirmatory of the depiction of the final point of the agreed line shown in
Map 134.
3.47. The sketch maps accompanying the 1949 IndividualProces Verbaux for Border
Signs 1438 and 1439 do not establish a maritime boundary extending as far as
Romania's allegedPoint X, and are in any event unreliable. It is apparent on the face of
the two sketch maps that they do not show any agreed line extending along the Serpents'
Island arc as faras Romania's alleged Point X, and this is, as just noted, admitted by
Romania. As for the unreliability of the sketch maps, even Romania admits that "[tlhey were
not intended to be minutely accurate depictions of the geography of the area they depict
[... l wrine'spoint, however, was not that they werenot "minutely" accurate but rather
that they were substantiallyinaccurate, so much so that no detailed conclusions or
implications could be drawn from them as to the course of the boundary along the Serpents'
Island arc.59In any event, depictions on individual sketch maps must yield to the final
comprehensive boundary line as definitively shown on the maps - including the
geographically reliable Map 13- which define the boundary as agreed in the general 1949
Proces Verbal.
3.48. That the boundary depicted on the two sketch maps is depicted in the same way
throughout thelength of that depictiondoes not undermine Ukraine's argument thafacts
created by the applicable laws showthat in 1949,and until Romania's changeof its territorial
sea in I91 the boundary out to 6 n.m. was a boundarybetween the two States'territorial seas
while the line beyond6 n.m. could only in law have beena boundary between the Soviet
Union'sterritorial sea and the high seas.epiction of a line on a sketch map (which is in
any event inaccurate) cannot by itself have made an area of high seas into an area of
Romanian territorial sea when Romanian law itself did not regard that area as part of its
territorial sea. Romania has been unable to s-indeed, has not even attempted to sho-
on what legalbasis a depiction of a line on a sketch map can produce such a result, which is
inconsistentwith Romanian law andinternational law.
58
59 RR,para4.40.
SeeUCM,paras.5.54-5.56. D. The Contemporary (1949)Record
3.49. NO part of the contemporary record, whether in agreed texts or in accompanying
cartographic material, shows an agreed boundary extending as far as Romania's alleged
Point X. This is apparent from what has been said above at paragraphs. 3.20-3.21 (the
preparatory work), 3.22-3.24 (the 1949Proces Verbal) and 3.25-3.37 (Map 134, and Plates I
and V).
3.50. Romania has produced no contemporary evidence that the agreed maritime
boundary extended as far as Romania'salleged Point X. As noted above,60it is Romania
which has access to and possessionof all the available material relating to the 1949 Proces
Verbal. It is therefore particularly significant that Romaniahas been unable to point to any
contemporaneous evidence that Romania and the Soviet Union agreed on a maritime border
extending along the Serpents' Island arc to Romania's allegedPoint X, approximately due
east of the Island.Indeed, Romania admits that the 1949ProcbsVerbal depictedthe maritime
boundary as running "around the 12nm arc surrounding Serpents' Islandto a point undefined,
in the text, by geographical coordinates.Nor did the subsequent boundary agreements
concluded between Romania and the Soviet Union identify this point by geographical
coordinate^ The^'same is true of the 1949 individual Proces Verbaux for Border Signs
1438 and 1439, in respect of which Romania admits, "It is true that the final point of the
boundary following the arc of circle around Serpents'Island is not specified in any of the
Procbs Verbauxand is not shownon any of the sketchmaps".62
3.51. The best that Romania can do is to say that Ukraine's interpretation "has no
foundation in the text itself'.63Coming from the Party which asserts agreement upon a
maritime boundary extending right round the south of Serpents' Island as far as Romania's
alleged Point X, none of which has anybasis in anyagreed text or contemporaneous map or
other document, that argument does not merit serious consideration. But more tothe point, it
60 At para3.30, 3.42.
61 RM,paras.11.51-11.52.Emphasis added.
62 RR,para.4.43.
63 Ibid., pa4.41.has to be repeatedthat the differing status of the waters on the two sides of the line has as its
basis, andis the direct consequence of, the different legalprovisions made by each State up to
1951 as to the breadth of its territorial sea: a sketch map depiction cannot alter that
undeniable legal fact.
E. Non-Contemporaneous Maps
3.52. Non-contemporaneous mapswhich are quite separate from any relevant textual
agreement andwhich do not themselves record an agreement between the parties are of
little or no evidentiary value as to what was agreed in 1949. Romania seeks to make good
the lack of contemporary evidence by relying on cartographic depictions made many years
after the conclusion of the 1949 Proces Verbal yet showing a maritime line going along the
Serpents'Islandarc to a terminal point approximatelydue east of the Island, i.e.to Romania's
alleged Point X. The deficiencies in the 23 maps put in evidence by Romania have been
noted by Ukraine in its counter-~emorial~~ and will not be repeated here. But three
important thingsabout those maps are very striking:
(i) there is no textual basis in any USSR-Romania or Ukraine-Romania
agreement forthe depiction of such a terminal point;
(ii) nothing on the face of the maps links them with the 1949 or later Procks
Verbaux or agreements: in particular, in the words of a Chamber of the Court
in Case concerning the Frontier Dispute (Burkina Faso v.Republic ofMali),
none of them comes within the category of "maps annexed to an official text
of which they forman integral part"65;and
(iii) the earliest of the post-1949 maps put in evidence by Romania was published
in 1957,~~8 years after the 1949 Proces Verbal; the second and third earliest
were published in the two following years, and thereafter one jumps to 1970
64
UCM,paras. 5.127-5.167, andAddendum at paras. 5.168-5.215.
65 FrontierDispute, Judgment,I.C.J.Reports 1986,p554, at p. 582,para. 54.
66 MAPRh4A-16,is a 1957editionof a map apparently firstpublished in 1951:but that 1951edition has
notbeen put in evidence by Romaniaand its markingscannot be assumed to beand infact were no-
the sameas inthe 1957 edition.See also below, para. 3.56. and later maps. As a general matter, the longer the time which has elapsed
between the publication of maps and the event in relation to which they are
invoked, the less probative value do they have in relation to that e~ent;~'and
more specifically, none of these maps can be regarded as contemporary
evidence of what the Parties intended and what they meant when concluding
the 1949Procks Verbal. Whatthey intended andmeant is clear fi-omwhat they
agreed (which includes Map 134)in 1949,namely a boundary which extends
only a relatively short distancealong the Serpents'Islandarc from Point 1439.
3.53. None of the 23 maps put in evidence by Romania constitutes in itself an
agreement between the Parties that the Serpents1 Island arc constitutes a maritime
border running along the arc as far as Romania's PointX. "Of themselves, and by virtue
solely of their existence, [maps] cannot constitute a territorial title, that is, a document
endowed by international law with intrinsic legal force for the purpose of establishing
territorial rights."68There is no reason to limit that statement ofprinciple to territorialtitle to
land territory, and it is apt also to cover title to maritime areas, particularly those involving
the territorial sea over which the coastal Statehas sovereignty.While it is possible for a map
to constitute in itself an agreement between two States as to something depicted on the map,
for example by the map being signed or at least initialled on behalf of both States as part of
I some negotiations to confirm the accuracy of the depiction in question, there is no suggestion
that anything of that sort happened with regardto the maps nowunder discussion. Nothing on
the face of the maps, nor anything in the record surrounding their preparation, isto that
effect.
3.54. The erroneousness of Romania's position is demonstrated by the fact that the 1997
Exchange of Letters in which Ukraine and Romania agreed to negotiate their continental
shelf and EEZ boundaries said nothing to the effect that a substantial part of that boundary
i (namely as far out as to the point which Romania now identifies as its alleged Point X) had
I
already been agreed. In the fourth paragraphof the Exchange of Lettersthe two States agreed
to "conduct negotiations on the Agreement on Delimitation of theContinental Shelf and the
Exclusive Economic Zones of both States in the Black Sea" without any qualification either
67
Beagle ChannelArbitration, (Argentina v. Chile), 18 February1977, U.N.R.I.A.A.,Vol. 21,p.57, at
< 68 para.142(3).
FrontierDispute,Judgment,I.C.J.Reports1986,p. 554, atp. 582,para.54.to the general effect that part of that boundary had already been agreed, or to the more
specific effect that the delimitation was to start at the point now described by Romania as
Point X. Nor was any such qualification included inthe list of principles on the basis of
which the negotiations were to take place. The only sustainable interpretation of the 1997
Exchange of Letters was that theParties envisaged the delimitation of their continental shelf
and EEZboundaries in toto- starting, as both Parties agree is the Court'stask,69at the outer
limit of their common territorialseaboundary as agreedin the 2003 re at^.^'
3.55. The erroneousness of Romania's argument thatthere has been an agreement since
1949 that there was a maritime boundary as far as Romania's alleged Point X is further
demonstrated by Romania's inability to identify consistently, with precision, when and on
what basis that alleged Point X was fixed. As already notedY7'the Joint Soviet-Romanian
Demarcation Commission did not agree to any Point X in its December 1948 or September
1949ProcesVerbaux. In order tosupport its artificialargument on this matter, Romania first
(in its Memorial)described the locationof Point X asbeing simply the point atwhich "all the
charts" showthe final point of the boundary as being "situateddue east of Serpents'~sland"."
In other words, Romania'sinitialbasis for the existenceof its Point X depended then entirely
on its location as depicted on various maps having nothing to do with the 1949 Procks
Verbal, without any supporting hydrographic reasoning. And in any event Romania
exaggeratedthe significance of the maps on which it reliedin its Memorial. Romania argued
that "all" the maps showed the final point of the boundary as located at Romania's alleged
Point X: while that was true of the maps selectivelypresented to the Court inRomania'sMap
Atlas, Ukraine, in its counter-~emorial,~~drew attention to 5 other maps from relevant and
authoritativesources which showedno such markingof any alleged Point X.
3.56. Further Romania argued that its alleged Point X is shown in the same location on
"charts draftedstarting in 195 1,immediately after the conclusion of the 1949Procks Verbal.
Consequently,these charts present [...the sense of the agreement concluded in 1949 [...ln."
69 Seeabove,paras.2.4, 3.4.
70 Seeabove,para.3.2.
71 Above,paras.3.20-3.22.
72 RM, para.11.53.
73 UCM,para.5.156.
74 RM,para.11.55. As already noted," no map dated earlier than 1957 was provided by Romania in the Map
Atlas accompanying its Memorial. A map published in 1957, some eight years after the
conclusion of the 1949Proc&sVerbal, is not contemporary evidence such as to show, on that
basis, what had been intended some eight years earlier. While that 1957 map was apparently
a later edition of a map first published in 1951,the original 1951edition was not providedby
Romania: since the whole purpose of later editions of a map is to amend markings on the
earlier editions, it cannotbe assumed that the original 1951 edition of the 1957 map had the
samemarking of an allegedPoint X as the 1957edition had. And infact the 1951 editiondid
not have any markings indicating a boundary around the south of Serpents' Islands and
ending at Romania'salleged.PointX. That 1951edition is now provided by ~kraine,~~and it
is apparent that it is wholly devoid of any such boundary markings as those on which
Romaniarelies. As a map published only2 years after the 1949Procks Verbal it carriesmore
weightas regards the Parties'intentions in 1949than the edition published 6 years later.
3.57. Romania's explanationfor its allegedPoint X changed in Romania's Reply. Insteadof
l just being where a numberof maps depicted it as being, Romania -a little belatedly, perhaps
- now says that it "representsthe intersection ofthe 12n.m. arc around Serpents'Islandwith a
line drawn fiom the last point on the RomaniadSoviet land-river boundary on a bearing
perpendicular to the segment closing the Musura Bay and uniting its two salient entrance
points (the south-easternmost Soviet islet, and the outer end of the Sulina ~~ke)"." The
followingpoints in particularare revealing aboutthis explanation:
(i) it has been given only in Romania'sReply rather than in its Memorial;
(ii) the line out to sea which, when it intersects with the Serpents' Island arc, is
said to produce the alleged Point X, is drawn as a perpendicular to a coastal
line whichis manifestly - as a simpleglance at the Figure RR21 shows -not a
reflectionofthe general directionof the coast;
75
76 Above,para.3.52(iii).
Annex 3, Vol. 2. Anenlargementof thebottomleft-handcornerof thechartis at Annex4, indicating
77 the chart numbe(500)andyearof edition(1951).
RR, para.4.97, andFigureRR2I (at p. 02). the coastal line used by Romania takes as its southern defining point the
(iii)
seaward end of the man-made Sulina Dyke, which serves to tilt the southern
portion of the coastal line away from the general direction of the coast and
accordinglymakes the perpendicular outto sea run on a more northerlycourse
than wouldotherwisebe the case; and
(iv) in using the man-made Sulina Dyke as one of the defining points for the
construction of its basic coastalline, Romania would appear to have used the
outer terminal point of Sulina Dyke as it wasdepicted on a chart of 1955, and
not as it existed in 1949.Since as Romania admitsthe "Dyke underwentmajor
extension works from the 1950suntil the 1980s"~~ the dyke did not extend as
far outto sea in 1949as itdid in 1955,with consequent effectsfor the drawing
of the closing line on which Romania relies, and thus (on Romania's
calculations)for the locationof Romania'sallegedPoint X.
3.58. The plain fact is that Romania contends that its alleged Point X was established in
1949, yet only now, nearly 60 years later, puts forward a totally artificial rationale for the
location of this alleged point. This attempted rationale has no merit, and is pure invention.
There is absolutely no evidence that that rationale for the alleged Point X, or indeed the very
existenceof any such allegedPoint, waseither Party'sintentionat the relevant time in 1949.
3.59. The weight of maps as evidence of the course of a boundary is affected by
whether the boundary is established by an agreement, or whether it is established by
other available evidence. The present case turns on the meaning of the Romania-USSR
treaty established by the 1949 Procks Verbal. That treaty text, together with the associated
contemporaneous official Map 134, is the prevailing text for purposes of determining the
boundary agreed in it.The role of later mapsas evidence of what that treaty text wasintended
by both Parties to mean is very slight, particularly when the treaty contained its own maps
depicting what theParties intended andwhat they agreed.
78
RM, para.11.17. 3.60. In addition to noting Ukraine's referenceto Case concerning the Frontier Dispute
(Burkina Faso v. Republic of ~ali),~' Romania has also drawn attention to three cases in
which maps played a notable part,80namely Minquiers and ~crehos," Temple of Preah
~ihear,~~and Beagle Those cases are not on all fours with the present case,
turning as it does on the interpretation of a treaty text accompanied by contemporaneous
maps showing what the Parties had agreed. In Templeof Preah Vihear the question was
whether a later map which the Parties had adopted should prevail over thewords used in the
relevant treaty to describe the boundary; in the other two cases there was no treaty map
accompanying the treaty text and showing what the text meant. Thus in none of those three
cases was the Court concerned with later maps which were at variance with a map agreed as
l part of the relevant treaty, and thus none of those threecases is authority forthe view that one
or more later maps prevail over an agreed treaty text the meaning of which, in terms of the
boundary established by the treaty, is depicted on a contemporaneous and agreed official
map. To hold that later unilateralmaps, not themselvesagreed by the Parties, prevail over the
I clear depiction of an agreed boundary on a contemporaneous and agreedofficial map would
I
I be withoutjustification or (so far as Ukraine is aware)precedent.
l
3.61. Romania is correct in notingg4that in the Frontier Dispute case "maps which are
annexed to an official text of which they form an integral part" are only one category of the
maps which "fall into the category of physical expressions of the will of the State or States
concerned"85which in turn is the reason for which some maps may acquire legal force as
constitutive of territorial title. But maps annexed to official texts of which they form an
integral part are the most obvious ofthe maps in that category, particularly when the official
text in question takes the form of a boundary treaty. And in the present case, the boundary
treaty with its map - i.e., the 1949Procks Verbal and Map 134 - constituted the relevant title
as from 1949, and did so in accordance with (respectively) their terms and depictions. That
I 73 See UCM,para.5.129.
80 RR, paras.4.100-4.105.
81 Minquiers and Ecrehos,JudgmentofNovember l Th,1953,I.C.J.Reports 1953,p.47.
82
I Case Concerningthe Temple ofPreah Vihenr(Cambodiav. Thailand),Merits, Judgment of15 June
1962,I.C.J. Reports 1962,p.6.
I 84 21 m, p. 57.
t 85 RR,para.4.99.
I FrontierDispute, Judgment,I.C.J.Reports 1986,p. 554,atp. 582, para.54.title,extendingfrom Point 1439 and thence along the Serpents'lsland arc for the relatively
short distance depicted on Map 134, had been established by agreement in 1949 and well
beforethe time when later unilaterally-producedmaps came into being. Those later unilateral
mapscould have no legaleffect on that establishedtitle.
3.62. In Minquiers and Ecrehos the Court wasrequested to determine whether sovereignty
over certain islets and rocks vested in the United Kingdom or France. While various old
treaties were cited in argument, there was no treaty which purported to fix the maritime
boundary on one side or other of the islets and rocks in question or otherwise to deal
expresslywith the question of sovereignty over them, nor indeed did the Court rely on maps
to determine the question of territorial sovereignty which was before it. Consequently no
question arose of the effect of later maps on the agreed text and maps in which the parties
recorded the location and extent of the boundary which they intended to establish. The maps
invokedwere simply part of the general body of evidence, of'tenconflicting, relied onby the
parties.
3.63. (a) In Temple of Preah Vihear the Court was concerned with a treaty of 1904,
Article 1 of which (in the Court'swords) established "the general characterof
the frontier [... a...a watershed line", but which left "the exact courseof this
frontier [...to be limited by a Franco-Siamese Mixed ~ommission",~~which
only met two or three years later andwhich producedmaps of the frontier.The
relevant map depicted the frontier, but not on a line representing the
watershed. The issue before the Court was, essentially, whether it was the
treaty language or the later delimitation map which should prevail. The Court
noted that the map had been included in a set of maps which had been
formally handed over at "something of an occasion",87and held that the
Parties had adopted the delimitation map as representing the outcome of the
work of delimiting the frontier and had thereby conferred on it a binding
character.
Case Concerningthe Templeof Preah Vihear(Cambodia v.Thailand),Merits, Judgment of l5 June
1962,p. 6atp. 17.
87 Ibid.,p.23. (b) The circumstances of the present case are very different. The delimitation of
the boundary was established by the agreement of both parties to the 1949
Proces Verbal and its associated and contemporaneous Map 134; there was no
question of that Map 134 being at variance with the text which. it
accompanied; by concluding the 1949Procks Verbal with itsgraphic depiction
of the boundary in Map 134, both parties showed their agreement to the
boundary as there depicted; and the other, much later, maps invoked by
Romania were not made into part of the settlement "package" in the way that
occurred in respect of the delimitation map prepared by the Joint Franco-
Siarnese Commission.Whereas France and SiamlThailandhad agreed in their
1904 treaty that the frontier would be delimited at a future time by a Joint
Commission with the consequence that that subsequent delimitation could
properly embody variations from the general character of the boundary as
described in the treaty which it was open to the parties to adopt (which the
Court held them to have done, thereby making the delimitation part of the
treaty settlement),'' in the present casethere is no room for any such analysis:
the text of the treaty (the 1949 ProcesVerbal) and its associatedMap 134were
agreed at the same time, and were agreed as establishing the line of the
boundary there and then without anyneed for subsequent delimitation or other
action by a Joint Commission or otherwise.
(c) The Court drew attention to the consequences flowing from Siam's (later
Thailand's) failure to draw attention to the alleged inaccuracy of the Joint
Commission's delimitation map,and held that that failure precluded Thailand
from questioning the non-watershed frontier line depicted on it: so too in the
present case, if Romania believed that Map 134 (to which it had expressly
subscribed as the depiction of the boundary at Point 1439) did not after all
represent what had been agreed, it should have made that clear at the time,
either by not subscribing to that part of the 1949 Procks Verbal or by some
appropriate steps taken later: but Romania did no such thing, and instead
concluded the 1949 Proces Verbal as it stood. Romania appears to have
questioned the implications flowing from Map 134 for the first time only in its
88 Ibid .p.33-34. Memorial in this present case. Romania'sfailure to complain earlier entitles
Ukraine (and earlier, the Soviet Union) to rely on the agreed 1949 Proces
Verbal and its integral agreed Map 134 as depicting the agreed maritime
boundary - i.e., a boundary extending only as far as shown on the official,
agreed and contemporaneous depictionof its course.
3.64. In Beagle Channelthe arbitration aroseout of a boundary treaty of 1881, Articles I, I1
and 111of which described the course of the boundaryin some detail, but without any agreed
and integral treaty map depicting the boundary so described: Article IV provided for
subsequent demarcation of part of the boundary by certain experts. There was, accordingly,
no question of later maps having an effect on the agreed text and maps in which the parties
recorded the location and extent of the boundary which they intended to establish. The maps
relied upon by the parties and the tribunal were simply one part of the general body of
evidence, often conflicting, which had to be consideredin attributing meaning to the words
used in the 1881 treaty.
3.65. Invoking maps published many years after the line of the boundary was agreed
in 1949in order to show a departure from the line then settled is inconsistent with the
stability and finality of boundary settlements.The principle is clear: "when two countries
establish a frontier between them, one of the primary objects is to achieve stability and
finality".89A boundary treaty "implies definitiveness and permanence".90That stability,
definitiveness and finality speak from the time the treaty enters into force: they are
undermined if (apart from agreed changes) later events are allowed to introduce variations to
the boundary as agreed at the time that agreement was reached and entered into force. And
the boundary as agreed in 1949, as made crystal clearby Map 134attached to Proces Verbal,
extended from the agreed Point 1439 along the Serpents' Island arcfor only the relatively
shortdistance depictedonMap 134.
89 Ibid., ap.34.
90 Beagle Channel,Arbitration (Argentina v. Chile), 18February1977, W.N.R.I.AVol.21,p. 57,at
para.18.Section 2. The Status of theWaters on Each Side of the Agreed Line
A. Introduction
3.66. Whatever the distance alongthe Serpents'Island arc for which the agreed border runs,
there is a difference between the parties as to the status of the waters on either side of that
agreed line.
3.67. Ukraine's position is simple, and fully in accordance with prevailing rules of
internationallaw.
(i) The agreed line extends no further along the Serpents'Island arc than the final
point depicted on Map 134 and confirmed as the meeting point of the outer
limitsof the Parties'territorial seasin the 2003 Treaty.
(ii) At all relevant times the waters to the north or north-east of that agreed line
have been part of the territorial sea of the Soviet Union and, after 1991, of
Ukraine.
(iii) Until 19519'the waters to the south of the agreed line were, as far as 6 n.m.
out to sea fromthe Romanian coast, part of Romania'sterritorial sea.
From 1951 onwardsthe waters to the south and southwest of the agreed line
(iv)
were, as far as 12n.m. out to sea from the Romanian coast, part of Romania's
territorial sea.
(v) Beyond the outer limit of Romania's territorialsea and its point of intersection
with the outer limit ofthe 12 n.m. territorial sea around Serpents' Island there
is no agreed maritimeboundary line, and the waters to the south of the 12n.m.
91
Although there may be someuncertainty whether thisdate, 1956, is the correctdate for the extension
of Romania's territorial sea to 12n.m. UCM, para.5.82),Romania accepts that1951 is the correct
date("[...the 1954 Act, concluded three years after the Romania extension of its territor[...lv:
RR, para.4.77). arc around Serpents' Islandwere high seas and are still waters which are not
attributed to Romaniaeither by agreement orby operation of law.
3.68. Romania'sposition is different,not only with respect to the lengthof the agreed line
along the Serpents'Island arc (dealt with above) but also with respect to the status of the
waters to the south of what Romania asserts to be the agreed line. Romania accepts that the
waters to the north of the agreed line were at all relevant times part of the Soviet Union's
territorial sea and are now part of Ukraine's territorial sea; and Romania accepts that for
6 n.m. (up to 1951) out to sea and (thereafter) for 12n.m. out to sea the waters to the south
were and are part of Romania's territorialsea. Further out to sea, but still south of what
Romania asserts to be the agreedboundary line, Romania asserts that (i) that line represents
an "all-purpose maritime boundary" which limits all of the Soviet Union's, and now
Ukraine's, entitlementto maritime areas to the waters north of that line, and (ii) while the
waters south of the line are admittedlynot part of Romania'stenitorial sea, they nevertheless
"appertain"to Romania. Ukraine will, inthe following paragraphs, showwhythese assertions
are incorrect.
B. Status of the Waters Under the 1949 Procks Verbal or Other Agreed
l
Texts
3.69. Neither the 1949 ProcksVerbal, nor any other agreed text, identifies the status of
the waters to the south of the short length of agreed line along the Serpents' Island arc.
The relevant ProcesVerbaux and other agreements expresslyidentify the waters to the north
of the Serpents' Islandarc as being part of the "maritime zone" or "territorial sea" around
Serpents' Island: but they do so not by direct description of the status of those waters but
rather by way of describing the arc around Serpents'Island - it is an arc which follows the
12 n.m. territorial sea limit which exists around the Island. The focus of the relevant texts is l
on the descriptionof the arc, rather thanthe status of the waters to the north of it. I3.70. Inmarked contrast, no agreementuntil the 2003 Ukraine-Romania Treatyexpressly or
even indirectly identified the status of the waters to the southof the short length of agreed
line. Nothing is even said about their status out to the appropriate distance as part of
Romania'sterritorial sea: this was left to follow fiom the application of Romania'slaws and
international law defining the extent ofits territorial sea.
3.71. The only indication associated withthe 1949 ProcksVerbal which attributeswaters to
Romania is the marking on Map 134, which has the inscription "CCCP" or "URSS" to the
north of the short length of agreed line depicted on that map, andthe inscription "PHP" and
"RPR" to the south of that line. But those inscriptions only relate to the limited distance for
which the line is shown as extendingbeyond Point 1439.I.e.,that attribution of those limited
waters to Romania is consistent with and bears out the view advanced by Ukraine that the
limited distance for which the line extends along the Serpents' Island arc. reflected the
potential external limit of Romania'sforthcoming extension of its territorial sea to 12 n.m.:
the markings to the south of that limitedlength of the arc fallwithin the area of waters which
were to become Romanian territorial sea, so that the attribution of those waters to Romania
was appropriate.
3.72. No agreed text says anything about the status of the waters beyond the outer limit of
Romania'sterritorial sea. Just as the status of Romania'sterritorial seawas left to followiom
the application of Romanian legislation, so too the status of the waters to seaward of the
limits claimedby Romania as its territorial sea was left to be determined by applicationof the
appropriate law - in this case internationallaw.
C. Status of the Waters Under the International Law of the Sea
3.73. Pre-UNCLOS, the waters beyond the territorial seaformed part of the high seas.
The position in international law in 1949 is reflected in Article 1 of the Convention on the
High Seas 1958:
"The term "high seas" means all parts of the sea that are not included in the territorial
sea or in the internal waters of a State."Although that treaty provision is 9years after the conclusionof the 1949Proces Verbal, there
is no doubt that itreflected the stateof customary international law at the time9*and thus the
legal background towhat the parties agreed in the 1949Proces Verbal.
3.74. Post-UNCLOS the effect of the new law of the sea regime established by
UNCLOS remained substantially the same. In view of the impact on the lawof the sea of
the new concept of the EEZ, UNCLOS did not include any direct definition of the high
seasg3. Instead of a "definition" provision, Article 86 provided only an "application"
provision;in effect treating as subject to the rules applying on the high seas not only those
waters beyond the coastal State's territorial sea and internal waters, but also the waters
beyond its EEZ. However, Article 56,paragraph 2 obliges coastal States in exercising their
rights and performing their duties under the Convention in the EEZ to have due regard to the
rights and dutiesof other States and to act in a manner compatible with theprovisions of the
Convention. Moreover, so far as concerns the continental shelf (which may extend further
than the EEZ) Article 78 provides that "The rights of the coastal State over the continental
shelf do not affect the legal status of the superjacent waters [...l1'. Against thisbackground,
and given that an EEZ has to be expressly claimed by the coastal State and that a coastal
State's rights over its continental shelf are inherent and do not depend upon express
proclamation, the position post-UNCLOSis that beyondthe territorial sea the waters are open
touse by all States subject only to suchrights as mightbe exercised by the coastal State in its
expressly proclaimed EEZ, the delimitation of the boundaries of which are to be determined
in accordancewith Article 74.
3.75. Consequently, nothing in international law either pre- or post-UNCLOS
attributes to Romania the waters beyond the external limit of its territorial sea. This
follows fiom the analysis in the immediately preceding paragraphs. In particular, Romania's
inherent right to a continental shelf, and the rights flowing fiom its express proclamation of
92 The preamble to the Convention stated that the parties desired "to codify the rules of international law
relating to the high seas" and that they had "adopted the following provisions as generally declaratory
of establishedprinciples of internationallaw".
93 There is noexpress definition of "high seas",V11of UNCLOS is entitled "High Seas" andthe
first Articlein that Part (Art. 86)provides: "The provisions of this Part apply to all parts of the sea that
are not included in the exclusive economic zone, in the territorial seanternal waters of a
State, or the archipelagic waters of an archipelagi[...aHolwe.er, Article 78 provides that
"[t]he rights of the coastal State over the continental shelf do not affect the legal status of the
superjacentwate[...l".an EEZin 1986, do not deprive Ukraine (or previously the SovietUnion) of its inherentright
to a continental shelf or itrights to an EEZon its side of the appropriateline of delimitation.
In short, nothing in the relevant agreements or in international law obviates the need forthe
respective overlapping continental shelf and EEZ claims of Ukraine (and previously the
Soviet Union) and Romania to be delimited in accordance with international law, and in
particularArticles 74 and 83 of UNCLOS.
3.76. Moreover, Romania has totally failed to explain on what basis in international law
waters beyond Romania'stenitorial sea (whether of 6 n.m. or, later, of 12 n.m.) and forming
part of the high seas could in 1949 have been "attributed to" Romania, or could have
"appertained to" Romania, as a result of a bilateral agreement with the Soviet Union, or what
the legal characteristics of such attribution or appertaining were. With regard to the period
when Romania only claimed a territorial sea of 6 n.m., Romania baldly asserts that what it
refers to as agreed sketches andmaps (the unreliability of which in this context is discussed
in paragraph 3.88 below) show that "[tlhe areas south of the boundary were agreed, as
between Romania and the USSR, to appertainto Romania, even though they lay beyond the
outer limit of the 6 n.m. territorial sea claimed by Romania at that time".94This assertion
stretches credulity to breaking point. Romania'sown legislation made no claim to such high
seas waters as being in any sense Romanian territory, and yet somehow bilateral maps and
sketches can "give" Romania waters which it did not even claim. Romania'snovel assertions
are assertions for which Romania bears the burdenof proof. Romaniahas failed to satisfythat
burden.
3.77. The fact is, of course, that since in 1949 Romania and the Soviet Union did not
purport to fix a maritime boundary out into the high seas beyond the Soviet Union's and
Romania's (actual and immediately prospective) tenitorial seas, the whole question of the
purported attribution or appertaining of waters in the high seas simply did not arise. It is
Romania'sunrealistic assertion of an extendedmaritime boundary asfar as Romania'salleged
Point X, for which there is no contemporary textual or cartographic evidence," whichhas
created the artificial problem of the status of waters in the high seas south of that extended
line.
94 RR, para.4.22.
95 See above,paras.3.20-3.37.3.78. Even as regards the maritime boundary up to the point at which the outer limits of
Romania's and the Soviet Union'sterritorial seas met, Romania seeks to argueg6that the
relevant Procks Verbaux did not distinguish between the different kinds of maritime
boundary which were involved, whether itwas a boundarybetween Soviet territorial sea and
the high seas (upto 1951), or later a boundary between Soviet and Romanian temtorial seas.
In this context twothings have tobe distinguished, namelythefacts and themaps.
(i) It is a fact that while atall relevant times the Soviet Union claimed a 12n.m.
temtorial sea, Romania only claimed a 6 n.m. territorial sea until 1951 : it
necessarily follows fromthis fact that a maritime boundary between the Soviet
Union and Romaniaat that time could, in law, only have been a territorial sea
boundary up to 6 n.m. offshore.
(ii) It equally follows necessarily'from that fact that any boundary beyond that
Romanian territorial sea boundary must have been a boundary between the
SovietUnion's territorialsea and thehigh seas.
(iii) It is a further fact thatin 1951Romania extended its territorial seas to 12 n.m.
It necessarily follows from this fact that thereafter the maritime boundary up
to 12n.m. was aboundarybetween two sets of temtorial seas.
(iv) It is a further fact thatMap 134 depicted a maritime boundary only extending
a short distance aroundthe Serpents'Island 12 n.m. arc.
It is a further fact that the first (1951) edition of the first map published after
(v)
the conclusion of the 1949 Procks verbalg7showed no attribution to Romania
of waters to the southof the Serpents'Islandarc.
96 RR, paras.4.17-4.20.
97 Annex 3,Vol.2; see alsoabovepara.3.56.3.79. In the face of this complex of facts, and in the transitional situation created by the
imminent extension of Romania's territorial seato 12n.m. (and Romania cannot deny the fact
that the 1949 Proc&sVerbal was followed soon afterwards by Romania's extension ofits
territorial sea), one turns to the separate question of their representation on contemporaneous
maps. Maps do not create title (except in particular circumstances, which are not presently
applicable). It is not surprising that in 1949 the Joint Commission, indrawing up Map 134,
depicted an undifferentiated maritime boundary extending out to sea - but only as far as the
prospectivepoint of intersectionof the outer limits of the two States'territorial seas.
3.80. Romania argues9*that Map 134andthe sketch map illustratingPoint 1439 both depict
a maritime boundary line with the appropriate initials for the Soviet Union and Romania on
either side of the line, and that this shows that the waters to the south of the line were
regarded as appertaining to Romania and notas high seas. This argument is entirely vitiated
by the fact that those maps (quite apart fromthe unreliability of the sketch onlydepict
a boundary line extending no further along the Serpents' Island arc than the point of
intersection of the two States' actual or imminently prospective 12 n.m. territorial seas:
consequently, the attribution of waters to the south of that line to Romania simply reflects
their status as Romanian territorial seas.
3.81. Romania further arguesthat it wouldhave been very unusual for parties to have:
"[dletermined the outer limit of the territorial sea of one of the Parties from the high
seas, and to have defined in detail the course of that outer limit, including by
specifying the exact geographical coordinatesof one turning point used to define that
outer limit (the point represented by Border Sign 1439). It would have been even
more unusual, if this was in fact whatRomania and the USSR intended to do, that this
was not made explicitin the various instruments."loO
3.82. This argument is fallacious. It is not the map which established the legal situation
whereby the Soviet Union'sterritorial sea abutted on to the high seas, but the facts relating to
the Parties' respective lawson their territorial seas, applied together with international law.
Those facts were, for themapmakers, a "given".Those facts leave no option but to regardthe
98 RR,para. 4.21.
99 SeeUCM, paras5.53-5.55.
loo RR,para.4.24.line drawn on Map 134as a true temtorial sea boundary for the first 6 n.m., and thereafter a
territorial sea-high seas boundary; after Romania'smove to a 12n.m. territorial sea in 1951,
the whole boundary depicted on Map 134wasa boundary between the two States' territorial
seas. As for the allegedboundary beyond the limit of the line depicted on Map 134,it would
have been - ifit had existed - a boundary between the Soviet Union's territorialsea and the
high seas, but not because the map made it so but because the Parties' laws, read with
international law, made it so: the map would simply have reflected the factual situation
createdby those laws.
3.83. But that aspectof the matter neednot be considered further,since there was no agreed
boundary extending beyond the end of the line depicted on Map 134: as Ukraine has
shownI0' and as Romania has admitted,102no text, and no contemporaneous map, ever
established such an extendedmaritime boundary. Although Romaniacategorises the situation
reflected in the maps as "unusual", what would be truly unusual would be for the Parties to
have agreed to an official boundary depictiongoing only the limited distance shown onMap
134 while at the same time having agreed upon a maritime boundary going as far round
Serpents'Island as Romania's allegedPoint X but without saying so, without adopting any
map depicting such an extended line, and without any specific agreement as to the end-point
of that extended line.None of those thingswas done, because there was no agreementupon a
maritime boundary goingfurther than theend of the line depictedon Map 134.
3.84. In short, Ukraine agrees that "Whatever the USSR and Romania agreed in 1949
obtains as between Ukraine and Romania today.As to what they agreed the sketchmaps and
agreements are concordant and unequivocal: a 12 nrn maritime zone [in fact, temtorial sea]
appertained to Serpents' ~sland";'~~- but at this point agreement ends. The concordant and
unequivocal conclusion fiom the contemporaneous sketch maps and agreements is that
nothing was agreedas to the status of the waters southof the Serpents'Island arc and seaward
of Romania's 12 n.m. territorial sea. "The course of the boundary as fixed by the 1949
Proces-Verbal was confirmed by every later Romanian /Soviet bilateral agreement on the
'O' See above,paras.3.12,3.14-3.24.
'02 See above,paras.3.13 and3.26.
'03 RR, para.4.23.subject":'04Ukraine agrees with this Romanian statement, since the "course of the boundary
as fixed [in] 1949"went no further thanthe end-point ofthe line depictedon Map 134.
D. The Alleged "All-Purpose" MaritimeBoundary
3.85. Nothing in the relevant agreements or in international law justifies the treatment
of the allegedly agreed boundary line south of Serpents' Island as a maritime boundary
which restricts Ukraine's (and previously the Soviet Union's) rights to any and all
categories of maritime claims beyond that line. It is Romania's contention that there is an
agreed linealong the Serpents' Islandarc as far as the alleged Point X, and that line is an all-
purpose maritime boundary.That contention is without any foundation,but before addressing
it there is an important preliminarypoint to make. Anydiscussion of Romania'scontention is
only meaninghl on the basis that Romania is correct in its view that the agreed line extends
along the Serpents'Island arc asfar as Romania's allegedPoint X. As explained above and in
the Counter-Memorial, there is no justification for that Romanian view; rather the
contemporary textual and other evidence points inexorably to the agreed maritime border
extending no further than the point which was to become the intersection of the outer limits
of Romania'sand the Soviet Union's(and now Ukraine's)territorial seas, as confirmed by the
2003Ukraine-Romania Treaty.
3.86. On that basis Romania's"all-purpose boundary" argument falls away, since all that is
in issueis the lateral territorial seaboundary between the two States concerned: clearly, such
a maritimeboundary leaves Romania's territorial seaon one side of it and the Soviet Union's
(and now Ukraine's) on the other - no other "purpose" arises, and the question of the
delimitationof the two States'continental shelf andEEZ boundaries falls to be determined in
the normal way. Ukraine will nevertheless examine Romania's "all-purpose boundary"
contention on the hypothetical basis that there might be merit in Romania'sview that the
agreed line extends along the Serpents' Island arc as far as Romania's alleged Point X
approximately due east of the Island, but in doing so Ukraine must make it clear that it
'04 RR,para.4.29.disagrees withthat basic Romanian view, and that it undertakes the examination on a purely
hypothetical basis and without prejudice to its firm position that the agreed maritime
boundaryextends no further thanthe point of intersectionof the outer limits of the two States'
territorialseas.
3.87. No relevant text provides for the agreed boundary line to be an all-purpose
maritime boundary. This is clearsimply from readingthe texts in question.
That, however, does not stop Romania from stating that Ukraine'sassertions in this
3.88.
respect "disregardthe clear import of the text of the ~roces-~erbaux, and of the sketches and
maps, including Map 134 itself'.'05Yet nowhere do the terms of the Proces Verbaux, or
associatedmaps or sketches, either say or imply anything to that effect. One has only to look
at them tosee that that is so. The 1949ProcksVerbal says not a word on the matter; nor does
Map 134 (its use of attributive markings on either side of the line being limited to waters
which were to be regarded as territorial seas);nor does the previous map, Map 133 (which at
sea has no attributive markings at all- see Figure RR15, at page 82 of Romania'sReply); nor
does the sketch map associatedwith the IndividualProces Verbal for Point 1438 (which does
not depicta line going as far as the Serpents'Islandarc, and only uses attributive markings on
either side of the line in the Parties'territorial sea- see Figure 5, at page 36 of Romania's
Memorial); nor does the sketch map associated with the Individual Proc6s Verbal for Point
1439(which,like Map 134,only uses attributivemarkings on either sideof the line in waters
which were to be regarded as territorial seas - see Figures 6 and 7, at pages 37 and 42 of
Romania'sMemorial). Nothingin these crucial 1949texts or documents indicates in any way
that the line along the Serpents' Island arc was intended to be an all-purpose maritime
boundary.
3.89. To say, as does Romania, that "the language of the Proces-Verbaux shows that the
Parties intended to establish a single all-purpose maritime boundary, separating on the one
hand areas appertaining to Romania and on the other hand areas appertaining to the
USSR",'~~is to fly in the face of the plain texts: it is simply untrue. Romania can point to
'05 RR, para.4.79.
'06 Ibidp .ara4.80.nothing in "the language of the Proces-Verbaux" which gives expression to any such
intention.Io7This is not surprising, for the simple reason that the notion of an "all-purpose
maritime boundary" has only emerged in relatively recent times (and long after 1949) from
State practice and Judgments of the Court after the concepts of the continental shelf and EEZ
had become established.
3.90. Romania continues with a non sequitur of staggering proportions. Romania says that
"the main concern of the Parties under the political circumstances of 1949was to ensure a 12
nm maritime belt around Serpents' Islandfollowing its annexation by the Soviet Union [...l
[The arrangement reached] defined a 12 mile belt around Serpent's Island, leaving to
Romania the areas beyond."'08These last six words are pure fantasy. There is no reason in
logic, law or common sense why agreement on a 12 n.m. territorial sea around Serpents'
Island should mean that all the areas beyond were to be left to Romania unless that was
expressly stated,which it was not.
3.91. In fact, the most pertinent aspects of this passage from Romania's Reply are (a)
Romania's admissionthat the Parties'"main concern" was to do with territorial seas (and not
with anything further), and (b) Romania'sacknowledgementthat "the political circumstances
of 1949" are relevant to the interpretation of the 1949 Proces Verbaux - a matter to which
Ukraine willreturn at paragraphs 3.98-3.100below.
3.92. Romania notes that the Romanian chief negotiatorwith the Soviet Union said in 1987
that the two governments had in 1949 "established a sui generis delimitation line" which
allocated to Serpents' Island"asemicircular maritime space,with a radius of 12miles, whose
exterior limit on the segment separating Romanian waters from Soviet waters received the
characteristics of a State boundary".'09 And Romania adds that "[tlhis is a succinct
presentation of Romania's position now before the Court". Two things about this 1987
statement, which Romania adopts as its present position, have to be noted: (i) Romania
'07
Romaniarelies againin this contextRR, para.4.82)on its erroneousreadingof thelanguageof the
1949general ProcksVerbal,whereRomaniatreatsthedescriptionof the Serpents'Islanarcas one of
twointersectinglines whichestablishedthelocationofPoint1439, asif itwere a descriptionof the end
pointof the agreed maritime boundarysee above,para.3.24(a)). This repetitionof a bad argument
doesnothingto improveits quality.
'OS RR, para.4.81.
'09 bid.para.4.90.accepts thatthe delimitation line agreed in 1949was sui generis - i.e., it was not an orthodox
delimitationline between Soviet and Romanian waters, but a one-off line reflecting the then
maritime characteristics of the area; and (ii) the onlypart of the line which was characterised
as a State boundary was that segment of the line "separating Romanian waters fiom Soviet
waters" -this does not say, nordoes it mean, that allthe waters to the south of the Serpents'
Island arc round to Romania'salleged Point X were "Romanian waters", but rather means
that, since the extent of "Romanianwaters" is a questionof fact dependent on Romanian law
and since only the wafers out to6 or 12n.m. were Romania'sterritorial sea, only that sector
of the Serpents'Island arc which bounded those Romanian territorial seas was characterised
as the Stateboundary, leaving the rest of the arc around Serpents'Island as simply the outer
limit ofthe Soviet Union's territorialsea, with nothing whatsoever saidabout its limit for all
otherpurposes too.
3.93. Romania seeks to bolster its "all purpose"argument by observing that "[tlhe practice
1'110
of establishing an all-purposemaritime boundary is well-known in international practice .
It is notable that, in a period when the law of the sea was developing rapidly, and despite
general statements about agreements dating "fiom the 1950s and 1960s","' the only two
specificprecedents cited by Romania date from 1957 and 1986i1I2The period from 1949to
1957, and even more so to 1986, is sufficient for there to have been a marked evolution of
internationallaw in this context, so that practices adopted by other States at those later times
revealnothing as to the intentionsof Romania andthe Soviet Union in 1949.
The question to be asked, however, is not whether the practice is or is not well-
3.94.
established (or, rather, was or was not well-established in 1949), but whether the Parties
involved in a particular situation came to an agreementreflecting that practice. This is, in the
context of the Soviet-Romanian agreements, and in particular the 1949 Procks Verbal, a
matter of treaty interpretation, and ultimately of the Parties' intentions.Not only did the
words used not contain anyhint of an "all purpose" intention, but, as the immediately
110 RR, para.4.31.
l" Ibzd.,para4.32.
Seeibidp .aras.4.31and4.33.following paragraphs will show, neither did any contemporaneous document, nor was there
any such implication from what they did allegedly agree (i.e . erritorial sea boundary), nor
was such a result compatible with the surrounding circumstances in which the 1949 Procks
Verbal was concluded.
3.95. No contemporary document shows that the Parties intended the agreed
boundary line to be an all-purpose maritime boundary. Of particular interest in this
context are the maps, sketches and schematicmaps associated with the 1949 Proces Verbal -
namely Map 134, Plates I and V produced by Romania with its Reply, and the sketch maps
associated with the individual Procks Verbaux for Points 1438 and 1439. As already
explained, Map 134 does show territorial attributions on each side of the agreed line, but
those attributions are limited (as is the Map'sdepiction of the agreed line) to the potential
external limit of Romania's forthcoming extension of its territorial sea to 12 n.m.: the
markings to the south of that limited length of the arc fall within the .area of waters which
were to become Romanian territorial sea, so that the attribution of those waters to Romania
was appropriate. Map 134 contains no line,nor any attributivemarkings, further east than the
point at which the line is depicted as ending. As for the two schematic maps recently
discovered by Romania, neither Plate I nor Plate V contains any attributive markings at all.
As for the two Individual Proces Verbaux for Points 1438and 1439the position in respect of
them has been set outat paragraph 3.88 above.
3.96. The delimitation of a territorial sea boundary does not imply that that boundary
is also tobe the maritime boundary for all other purposes. This is self-evident. While an
agreed territorial sea boundary may be intended by the parties to.serve as a boundary for
other maritime purposes, there has to be some evidence that that was the parties'intention.
There isno such evidencein the present context.
3.97. In particular, there can be no suchimplication as regards maritime zones (such asthe
continental shelf andEEZ) whose legal nature, and even existence, were not accepted at the
time the 1949 ProcksVerbal was agreed. Romania seeks to rely on the fact that continental
shelf rights are inherent in the coastal State in order to show that Ukraine is wrong insuggestingu3 that Romania and the Soviet Union could not have agreed a delimitation of
anything other than the limit of territorial seas.'14But Romania misrepresents Ukraine's
position. Itdoes not turn on the legalcharacteristics ofthe continental shelfonce that concept
has been generally accepted in international law, but on the fact that, in 1949, that concept
was not generally accepted in international law and that therefore the Parties to the 1949
Proces Verbalcannot be taken to have intended, by implication, to have dealt with boundaries
of maritime zones which were not already part of the established international legal order
accepted by them. To attribute to States acting in 1949an intention, by implication, to deal
with zones whose general acceptance was still some years in the future is blatantly
anachronistic.Treaties, includingthe 1949 Procb Verbal, are to be interpreted in the light of
the lawprevailingat the time theywere concluded.
3.98. The meaning to be given to the agreed texts and the associated documents is
affected by the surrounding circumstances. Romania has implicitly accepted this as a
general In applying it to the "all-purpose" argument, it is necessary to see
precisely what is involved in Romania's contention thatthere was agreement on an all-
purpose maritime boundary which follows the 12 n.m. arc around the south of Serpents'
Island. Romania seeks to persuade the Court that the Soviet Union had a territorial sea up to
the 12 n.m. arc and that beyond its territorial sea to the south of Serpents' Islandit had no
maritime rights of any kind, while Romania not only had its territorial sea extending
eastwards from its mainland coast but also had the full range of maritime rights in the waters
south of the Soviet Union's territorial sea arc around Serpents' Island. Put in other words,
while Romania hadthe full rangeof maritime rights offits coast, the SovietUnion had given
up all its maritime rights in the waters in question save only for its territorial sea rights;
moreover, the Soviet Union's concession to Romania extended (in Romania's view) to
maritime rights to the continental shelf which were not generally accepted at the time of the
1949Procis Verbal, or indeed (in respect of the EEZ)even known at that tirne.'16
"' SeeUCM, paras.5.60, 5.69-5.74.
RR,para.4.27.
l l5 Seeabove,paras.3.90-3.1.
Ii6 SeeUCM,paras.5.70-5.74. - 62 -
3.99. A concession of such magnitude, unmatched by any equivalent concession by
Romania, would have been manifestly one-sided and inequitable: so much so that it is
inherently unlikely that it occurred. The presumption must be against such a concession
having been made unless there is clear evidence to the contrary: but there is no such
evidence.
3.100. Quite apart from the grave imbalance in such a situation, in the historical context of
the time it is even more unlikely to have occurred. The 1949ProcksVerbal was signed on 27
September 1949; this was some 18 months after the signature on 10 February 1947 of the
Peace Treaty between the Allied Powers (including Ukraine) and Romania concluded at the
end of the Second World War. This was not the time when one of the principal victorious
States was likelyto have been minded to make substantialand un-reciprocated concessionsto
a defeated former enemy State responsible for the war of aggression. If any such concession
was made, it would need to be substantiated by the clearest possible evidence: there is no
such evidence.
3.101. Romania seeks to remedy the defect (from Romania's point of view) in the
contemporary material by invoking cartographic material prepared subsequently on a
unilateral basis, which is said to show both the extension of the agreed boundary asfar along
the Serpents' Island arc as Romania's PointX approximately due east of the Island and the
attribution of the waters to the south of that line to Romania. That material, however, is not
only, as Ukraine has shown, defective in various ways but in any event has no basis in
anything in the contemporary record of the 1949-1974 Procks Verbaux, or other relevant
agreements, and cannot prevail overthe texts and maps actuallyagreed.
3.102. At this point Ukraine must repeat what has been said at,paragraph 3.86 above to the
effect that Ukraine has engaged in the foregoing discussion of Romania's 'all-purpose'
boundary contention in relation to the line which Romania claims extends along the Serpents'
Island arc as far as Romania's alleged Point X notwithstanding Ukraine's fundamental
disagreement with that claim. Ukraine has undertaken the examination of Romania's
arguments on apurelyhypothetical basis and without prejudice to Ukraine'sfirmposition that
the agreed maritime boundary extends no further than the point of intersection of the outer
limits of the two States'territorial seas.3.103. The allegation that there already exists an all-purpose maritime boundary is
inconsistent with the terms of Romania's Application to the Court. In asserting the
existenceof an all-purpose maritime boundary extendingas far as Romania'salleged Point X,
Romania is being inconsistent with the terms of its Application to the Court instituting these
present proceedings. In its Application Romania requested the Court "to draw [...la single
maritime boundary between the continental shelf and the exclusive economic zones of the
two States in the Black Sea". Since Romania also accepts that the Court'stask begins at the
point of intersection of the outer limits of the Parties' respective territorialseas as agreed in
the 2003 re at^," i^follows that Romania accepts that thereis no already agreedsingle (i.e.,
all-purpose) maritimeboundary lying beyond that agreed pointof intersection and extending
as far as Romania'salleged Point X. Romania's assertionthat there does alreadyexist such an
'all-purpose' maritimeboundary is thus at variance with Romania's own Application to the
Court.
Section 3. Conclusion
3.104. The fact is that the contemporaneous evidence of the text of the 1949Proces Verbal
and its associatedmaps demonstrates that:
(1) there was no intention at the time to establish an agreed maritime boundary
extending as far as a point approximately due east of Serpents' Island,i.e., to
Romania'salleged Point X;
(2) on the contrary, the intention at the time was to agree a maritime boundary
extending at most as far as the end-point depicted on Map 134,which was at
the intersection of the outer limit of Romania'sprospective 12 n.m. territorial
sea with the 12 n.m. territorial sea arc aroundSerpents'Island;
'l7
Secparas.2.4,2.1and 3.4. consequently the waters on either side of that agreed line were part of the
(3)
territorial sea of the two Statesconcerned, and there was no need for the open
waters beyond the outer limit of either State's territorialsea to be attributed to
one or the other State; and
(4) those waters were accordingly treated as part of the open sea in which both
States had or were to have whatever rights might exist in international law,
with the boundaries between their respective maritimeareas being determined
in accordancewith the prevailingrules of internationallaw.
3.105. Nothing in subsequent agreements between Romania and the Soviet Union, or
between Romania andUkraine, is at variancewith those conclusions. CHAPTER 4
THE COASTAL GEOGRAPHY
Section 1. Introduction
4.1. The Parties agree that the geography of the area to be delimited is of central
importance to the delimitationof their respectivecontinental shelves andExclusive Economic
Zones.However, Romania'sapproach to delimitationsuffers fromahighly selective treatment
of the coasts of the Parties which abut the area. This tendency was already apparent in
Romania's Memorial,but it has been taken to new extremes in its Reply where a number of
tacticsare deployed essentially to refashion thegeography of the area.
4.2. First, Romania attemptsto deconstruct Ukraine's coastby carving up that coast into a
number of arbitrary segments. These are depicted on Figure RR2 at page 20 of Romania's
Reply. In this manner, Romania seeks to exclude as part of the "relevant coasts" over 600
kilometres of Ukraine's coastdespite the fact that the stretch of coast in question generates
continentalshelf and ExclusiveEconomic Zone rights throughout the areato be delimited.
4.3. Second, Romania misapplies the Court's jurisprudence in an effort to bolster its
approach to the relevant geographical facts. Ukraine willshow that the case precedents in no
way support Romania's artificial exclusion of largeparts of Ukraine'srelevant coast.
4.4. Third, Romania disregards the obvious role that Serpents' Islandplays as part of the
relevant coastal geography.Romania goes so far as to label one of the sections of its Reply
"Theirrelevance of Serpents' ~sland".'But Serpents' Islandis clearly a geographic fact, and its
existence cannot be ignoredin the delimitationprocess.
I RR, p.314.5. Finally, Romania applies double standards to its analysis of the coasts of the Parties.
While Romania has no hesitation in amputating a significant stretch of the relevant Ukrainian
coast, it treats its entire coast as relevant. Moreover, Romania ends up relying on two
basepoints - one located on a man-made feature (Sulina Dyke) and the other on a sand spit
(Sacalin Peninsula) - for the construction of its delimitation line while denying to Serpents'
Island - an island of clear geographic, historic and strategicsignificance - any role whatsoever
in providing basepoints on the Ukrainian side for the construction of the provisional
equidistance line. The endresult is a distorted view of the geographical facts of the case and a
misidentification of therelevant area.
4.6. It is evident why Romania has been obliged to resort to such an approach. Romania is
aware that the Court has invariably treated a marked disparity in the lengths of the coasts of
the parties as a relevant circumstance calling for the adjustment of a provisional equidistance
line. Romania is also aware that its method of delimitation produces a grossly
disproportionate result when tested by reference to the element of proportionality while
Ukraine's position more than satisfies thecriterion of proportionality. To overcome these
factors, Romania is forced toreduce the length of Ukraine's coastby artificially eliminating a
large portion of that coast, and to deny Serpents' Island any role in the construction of the
provisional equidistance line. At the same time, Romania accords full effect to the Sulina
Dyke and the SacalinPeninsula on its own coast.
4.7. As will be discussed in this Chapter,the geographic facts are a given and cannot be so
arbitrarily refashioned. In this respect, the Court's pronouncement in the North Sea
Continental Shelfcases as to the need to take the geographic facts as they stand, not as one
party would wish themto be, remains asappositenow as it was when that case was decided:
"Equity does not necessarily imply equality. There can never be any question of
completelyrefashioning nature, and equity does not require that a State without access
to the sea should be allotted an area of continental shelf, any more that there could be
a question of rendering the situation of a State with an extensive coastline similar to
that of a Statewith a restricted coastline."*
2 NorthSea ContinentalShelf;JudgmentL C.J.Reporfs 1969,p.3,atpp.49-50,para.9 1.Section2. The Relevant Coasts of Ukraine
A. Romania'sAttempt to SuppressHalf of'UkrainetsCoast
4.8. Ukraine's Counter-Memorial demonstratedthat the relevant coast of Ukraine fionting
the area to be delimited comprises the entire coast between the terminal point on the land
boundary between Ukraine and Romania up to Cape Sarych on the southwestern tip of the
CrimeanPeninsula. This stretch of coast generates continental shelf andEEZ rights vesting in
Ukraine which extend throughout the relevant area and which meet and overlap with the
potentialentitlements of Romania.
4.9. Figure 4-1, overleaf, depicts the relevant coasts of Ukraine. This coast measures
approximately 1,058 kilometres taking into account its sinuosity, or some 684 kilometres
when measured as a series of coastal fa$ade~.~Even using Ukraine's system of straight
baselines, its coast fi-ontingthe relevant area measures some 664 kilometre In.contrast,
Romania'scoast measures 258 kilometres takingaccount of its sinuosities, or 185kilometres
measuredby its coastalfagades.5
4.10. In its Memorial, Romania soughtto exclude from consideration all of Ukraine'ssouth-
facing coast abutting the area to be delimited. Romania asserted that "Point S" (illustrated on
Figure 4-2) marked theend of the section of Ukraine's coastwhichhas a relation of adjacency
with the Romanian coast.Romania then identified Ukraine's "opposite"coast as only that part
of the coast along the western side of the Crimean Peninsula south of Cape Tarkhankut.
Under this line of reasoning, all of Ukraine'scoast north and east of "Point" up to Cape
Tarkhankut was alleged by Romania to be neither adjacent nor opposite to Romania's coast
and thus irrelevant. Evidently,Romania considersit necessary thatthe coasts of the Partiesbe
identified as lying in either an "adjacent" or "opposite" relationship with each other, and that
if a stretch of coast does not clearly fall into one of these categories, it does not form part of
the "relevant coasts".
3 SeeUCM, para. 3.20.
4 Ibid .,ra. 31.
5
Ibid .,ras. 3.48-3.49. 4.11. In its Reply, Romania further dissected the Ukrainian coast into eight segments. The
purpose of this exercise is to exclude four of those segments fiom consideration, which
Romania asserts do not project onto the relevant area, and thus ttry to overcome the obvious
fact that Ukraine's coastfronting the area to be delimited is some four times longer than the
corresponding coast of Romania. Romania also argues that the long stretch of Ukraine'scoast
between "Point S" and Cape Tarkhankut loses any relevance because any entitlement it may
have to various areas "is eclipsed by that generated by the coast south of Point S and east of
Cape ~arkhankut."~ According to Romania, Ukraine's south-facing coast, due to its
geographic situation, is incapable of overlapping with the submarine extension of Romania's
own coast.7
4.12. This line of argument is plainly misconceived. In the first place, it is clear that
1
Ukraine's coast doesnot cease to be "adjacent"to Romania's coast at"Point S". Nor does the
fact that the remainder of Ukraine's coast beyond Odessa upto Cape Tarkhankut can be
viewed as being partly "opposite" and partly "adjacent" to that of Romania detract fiom its
relevance. Geographyis rarely straightforward,and frequently the coasts of two Statesmay be
said to have elements of both adjacency and oppositeness to each other. For purposes of
delimitation, what is relevant is that the coasts have to be capable of generating overlapping
maritime entitlements.'
4.13. The northwest corner of the Black Sea is no exception. While some parts of Ukraine's
coast are clearly adjacent to the coast of Romania and other partsare opposite, the Ukrainian
coast that faces southwards into the sea between Odessa and Cape Tarkhankut exhibits
characteristics ofboth oppositeness and adjacency. The importantpoint is thatall of this coast
fronts on, and projects into, the area to be delimited up to a distance of00 nautical miles.
Moreover, none of that coast is relevant to any delimitation with a third State in the regio-
only to delimitation withRomania.
4.14. Just because there may exist a limited number of basepoints for calculating the
seaward extent of a State'smaritime entitlements or for plotting a provisional equidistance
line, it does not folIow that the coast lying behind those basepoints becomes irrelevant. As
6 RR,para. 3.39.
7 Ibid.,paras. 3.28and 3.31.
8 See paras. 4.57-4.64below. :.F.%.
.{;'L
--.. A.. C,K: F EL A
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,**-
..;.;..'-..;.,.:!.?,:,:i!~..
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-.:..
..Romania itself acknowledges, "otherwise the existence of minor coastal projections and
promontoriescould determine,in an arbitraryway, whole coastal lengths."9
4.15. In the light of these considerations, the notion advanced by Romania that Ukraine's
south-facing coast is incapable of generating areas of continental shelf or EEZ entitlements
whichmeet or overlap with areas lying off Romania'scoast is patently wrong both as a matter
ofgeography and as amatterof law.
4.16. Figure RR5 to Romania'sReply - reproduced overleaf as Figure 4-3 to this Rejoinder -
illustrates the misguided nature of Romania's position. Ascan be seen from this illustration,
by arbitrarily cutting up Ukraine's coastinto eight segments, and then drawing so-called
coastalprojections from eachof these segments at right angles, Romania seeks to conveythe
impression that Ukraine can have no maritime entitlement in a large area coloured in orange
in Figure 4-3lying to the south of Serpents'Island identified by the yellow arrow on themap.
This is done by limiting each of the projections from Ukraine'scoast to a distance of less than
100nautical miles - not the 200 nautical miles to which they are entitled - and by assuming
that a coast can only generaterights to maritime areas - in other words, can only "project" -in
one direction.
4.17. This exercise is artificial in the extreme and wholly unjustified. Quite clearly, and
without even considering for the moment the maritime entitlements of Serpents' Island,
Ukraine'smainland coasts generate continental shelf and EEZ rights throughout the relevant
area, including in the areas lying south of Serpents'Island. This was illustrated on Figure 3-10
toUkraine'sCounter-Memorial.
4.18. In its Reply, Romania complains that one of the projections illustrated on Figure 3-10
of the Counter-Memorial extendsslightly more than 200 nautical milesout to sea, and thatthe
projectionsare not drawn at 90°, or perpendicular, from the coastalfronts.1°
4.19. The first point is misplaced given that Romania's projections of Ukraine's coastal
fronts on its figure only extend for some 100 nautical miles, well short of their legal
entitlements. Notwithstanding this, Ukraine has recast its illustration so that the projection is
9
10 RR,para.3.65.
Ibid.,para.3.45 anFigureRR4.extended out to a distance of 200 nautical miles from its coast. This is shown on Figure 4-4.
What is clear is that Ukraine'sentitlements extend fully into the relevant area, including into
those areaslying to the southof Serpents'Island wherethe focus of the delimitation lies.
4.20. The second point raised by Romania is irrelevant. Obviously, coastal projections are
only illustrative of the general extent of the legal entitlement to maritime zones that are
generatedby the coasts in question. But a State's entitlement to areas ofcontinental shelf and
Exclusive Economic Zone are not limited to areaslying strictly perpendicular from its coast,
or coastal front. Those entitlements exist in law over all areas lying within 200 nautical miles
of the coast no matter in what direction they lie. Distance from the coast is the relevant
criterion for a State's entitlement to maritime areas under the 1982 Law of the Sea
Convention, not angles of projection. Illustrations of coastal fagades and coastal projections
are helpful in that they serve to highlight the general extent of the area of overlapping
entitlements of the Parties and thus to place in perspective the principal areas that fall to be
delimitedbetween the two States. But Ukraine's south-facing coast clearlygenerates maritime
entitlements throughout the relevant area as illustratedby Figure 4-4, and this coast does not
lose its relevance for the delimitation exercise merely because it is not in a precise
relationship of either oppositenessor adjacency to Romania's coast.
B. The Court's Jurisprudence Supports Ukraine's Position on the
Identification of the Relevant Coasts
4.21. Ukraine's position with respect to the identification of its relevant coast is fully
consistent with the Court'sjurisprudence.This canbe seen by referring to the examples drawn
from the case precedents that Romania itself has cited. These precedents show that the entire
coast of a State which fronts the area subject to delimitation has invariably been taken into
account by the Court in arriving at a delimitation carried out in accordance with equitable
principles.rojectofUkraineCoastalFronts
(drawnas200Marcs) ~
l (i) The Tunisia-Libya Case
4.22. The first case referred to by Romania is the Tunisia-Libya case." For ease of
reference, Figure 4-5, overleaf, depicts the coasts of the parties that the Court deemed to be
relevant in that case.
4.23. What is crucial - and it is a point which fundamentallyundermines Romania's attempt
to disregard Ukraine'ssouth-facing coast - is that the Court considered the entire Tunisian
coast bordering the Gulf of Gabes as relevant to the delimitation regardless of whether such
coast could be classified as being either strictly opposite or adjacent to the coast of Libya.
Moreover, the Tunisian coast along the Gulfwas deemed relevant despite the fact that Tunisia
had enacted a system of straight baselines closingoff the Gulf as internal waters. In short, the
entire Tunisian coast alongthe Gulf abuttedthe area to be delimited and was therefore taken
into account by the Court. Similarly, in the present case Ukraine'sentire coast between the
land boundary with Romania and the tip of the Crimea Peninsula also abuts the area to be
delimited, and is thusrelevant to the delimitation.
4.24. The only coasts that were not deemed relevant in Tunisia-Libya were those which
faced third States - the Tunisian coast north of Ras Kaboudia (which faced Italy), and the
Libyan coast east ofRasTajoura (which faced~alta).'~ In the present case, however, none of
the Ukrainian coastwhichis relevant to the delimitation with Romania faces a third State. All
of Ukraine's coastbetweenthe land boundarywith Romania and Cape Sarych on the Crimean
Peninsula abuts an area which is subject to delimitation solely as between Ukraine and
Romania. It is only east of Cape Sarych that Ukraine's coast facesthat of a third State -first
Turkey and, further east, Russia. But none of this stretch of coast has been included in
Ukraine's identificationof the relevant coasts or in its depiction of the relevant area. Indeed,
both Parties agreethat the relevant coastofUkraine stops at Cape Sarych.
II
12 RR, para. 3.27,andparas. 3.52-3.54.
Similar reasons underlaythe Court's identificationof the relevant coasts in the Libya-Malta case. The
Libyan coast east of Ras Zarrouk was not deemed relevant in that case because it faced an area over
which a third State(Italy) had expressed claims. The lateral limit of Italy's claims ran approximately
along a line of longitude which intersected the Libyan coast near Ras Zarrouk. Continental Shelf
(LibyanArabJamahiriydMalta),Judgment,I.C.J.Reports 1985,p. 13, at p. 50para. 68. (ii) The Gulfof Maine Case
4.25. Ukraine'sposition is also fully in line with the Chamber's approach in the Gulf of
Maine case. The Chamber in that case made no distinction in importance between the coasts
of the United States and Canadabordering the Gulf of Maine and did not relegate any of these
coasts to a "primary"or "secondary"status. The entire coasts of both parties fronting the Gulf
of Maine were deemed pertinent as can be seen on Figure 4-6, and the disparityin the length
of those coasts was the dominant relevant circumstance which led the Chamber to adjust an
equidistancelinesignificantly in favour of theparty with the longer coast.
4.26. Romania argues that it does not seek to establish a hierarchy between the relevant
coasts of the Parties in this case as was sought by one of the parties in ~ulfof ~aine." But
this is clearly not true. While Romania treats its entire coast as relevant, it seeks to eliminate
over 600 kilometres of Ukraine's coast from having any role at all in the delimitation -
whether as a relevant circumstance, or for purposes of identifying the relevant area, or for
applying the test of proportionality. Clearly, Romania considers that there is a hierarchy of
coasts: its coast should be fully taken into account, while a significant stretch of Ukraine's
coast shouldbe ignored.
4.27. Such an approach is fundamentally at odds with the application of equitable
principles, not to mention the Judgment in Gulfof Maine where the entire coast of each party
bordering the Gulf, including much of the Canadian coast lying within the Bay of Fundy, was
identified as being relevant. The only section of coast that was not taken into account in Gulf
of Maine was a very limited part of the Canadian coast in the deepest reaches of the Bay of
Fundy which didnot form part of the Gulf proper.
(iii) TheDenmark-Norway(Jan Mayen)Case
4.28. Romania'sreliance on the Court's treatment of the relevant coasts in the Jan Mayen
case also misses the mark. Just as in the Gulfof Maine and Libya-Malta cases, the course of
the boundary decided by the Court in that case was heavily influenced by the fact that there
13 RR,para.3.56.Relevant andIrrelevantCoasts
in TunisiavLibyawas a marked difference in the lengths of the relevant coasts of the parties calling for a
significantadjustment ofaprovisional equidistanceline.
4.29. In its Reply, Romania contends that the Court did not consider that the entire east-
facing coast of Greenland formed part of the relevant coast, and that this treatment may be
compared with the parts of the Ukraine's coast north of Cape Tarkhankut and east of Cape
Sarych,which Romania arguesshould not berelevant in this case.14
4.30. While Ukraine agrees that its coast east of Cape Sarych is not relevant for the present
case, a review of the Court's analysis in JanMayen reveals that Romania's reasoning for
ignoring all of Ukraine's south-facing coast north of Cape Tarkhankut is completely
misplaced.To illustratewhy this is so, Ukrainehas reproduced thesketch-map included in the
Court'sJudgment as Figure4-7, over~eaf.'~
4.31. As the sketch map shows, the entire lengthof Greenland's coastthat actually bordered
the area to be delimited with Jan Mayen was deemed by the Court to be relevant for the
delimitation and for purposesof comparing the lengths of the coasts of the parties to that case.
In its Judgment, the Court explained that the reasonwhy the Greenlandcoast north of Point H
was not relevant was because Point H, in conjunction with Point E on the northern tip of Jan
Mayen, determined the equidistance line at its point of intersection with the Danish 200mile
limit (Point A),'~In other words, there were no overlapping maritime entitlements that the
coasts of the parties gave rise to north of those points. Therefore, the coasts beyond those
points were not relevant. As for the Greenland coast south of Point G, it was not relevant
because, as the Court pointed out, Point G determined in conjunctionwith the southern tip of
Jan Mayen (Point F) the equidistance line at its point of intersection (Point D) with the 200
mile line claimed by a third State - Iceland - which both Norway and Denmark agreed
constituted the southern limit of the delimitation requested of the court.17 The Greenland
coast south of Point G therefore did not give riseto any overlapping entitlements in the area
to be delimited becauseit faced a third Stateandthus was not relevant.
14 Ibid., paras.3.48-3.49.
IS Romaniaproducedaneditedversionof thissketch-mapas FigureRR6atpage39 of itsReply.Inorder
to appreciatethe Court'sreasoning, however, referenceto the actualsketch-map includedin the
Judgmentis moreappropriate.
16 Maritime Delimitationin theArea betweenGreenland andJan Mayen, Judgment,I.C.J.Reports 1993,
p. 38, atp.47, para.20.
17 Ibid., pp.47-48,para.20.4.32. The critical point is that the Court determined that the entire coast of Greenland
between Points G and H was relevant - and that the length of that coast was an important
relevant circumstance calling for the adjustment of the equidistance line, without artificially
excluding any portion of that coast. By the same reasoning, the entire south-facing coast of
Ukraine which generates maritime entitlementsout to 200 nautical miles overlapping with the
potential entitlements of Romania, and which does not face a third State, is also relevant to
delimitation in this case, and Romania'sattempt to eliminate thatcoast from consideration has
nojustification.
(iv) The Canteroon-Nigeria Case
4.33. The Romanian Reply also seeks to draw support for excluding a substantial part of
Ukraine's coast from the Cameroon-Nigeria case.18Yet, the geographic characteristics of the
two cases are scarcely comparable. In Cameroon-Nigeria, the identification of the relevant
coast of Cameroon was dictated in large part by the presence of territory belonging to a third
State - the Equatorial Guinean islandof Bioko -in the immediate area to be delimited. Those
parts of Cameroon'scoast which faced Bioko, not Nigeria,were not considered to be relevant
precisely because they faced a third State.
4.34. Obviously, the same situationdoes not exist between Ukraine and Romania. There is
no territory belonging to a third State lying just offshore Ukraine's south-facing coast. That
part of Ukraine'scoast abuts an area to be delimited exclusivelywith Romania. It is only east
of Cape Sarychon the south-westem tip of Crimea that Ukraine'scoast starts to face the coast
of a third State (Turkey). However, Ukraine has made it clear that it does not consider that
any of the southern coast of Crimea east of Cape Sarych is relevant to delimitation with
Romania.
18
RR,paras.3.61-3.62.BREENL AND
SEA
Figure4-7
I C. Serpents' Island as Part of the Relevant Coastal Geography
4.35. In addition to the mainland coasts of Ukraine, Serpents'Island also forms part of the
geographicalcontext and its coastconstitutes part of Ukraine'srelevant coasts.19
4.36. Giventhe existenceof Serpents'Island as a geographic fact, it is extraordinary that the
Romanian Reply asserts that "in any case, Serpents'Island does not form part of the coastal
configurationof the ~arties."~'Such anassertion canonlybe viewed as an attempt to deny the
existence of an island which clearly possesses a coast (unlike Romania's Sulina Dyke) and
which isrelevant tothe delimitation. It is also inconsistentwith the fact that Romania devoted
a 38-page Chapterand a 21-pageAddendum in itsReplyto the island. Neverhas a party spent
so much effort intrying to show thata well-documentedisland is really nomore than arock.
4.37. In spite of its attempts, Romania's Replyhas not succeeded in disprovingthe fact that
Serpents' Islandis clearly an islandwithin the meaning of Article 121,paragraphs 1 and 2, of
the 1982 Law of the Sea Convention. As shown by Ukraine in its Counter-Memorial and
again in this Rejoinder, regardlessof its modest size, Serpents'Island is manifestly an island -
as opposed toamere "rock" -both from a geographicaland legal point of view.
4.38. Romania'sReply goes to great lengths to show that Serpents'Island is small and that
its geological composition is partly rocky. To that end,Romania cites a number of sources -
mostly those filedby Ukraine as documentary annexes to its Counter-Memorial -refemng to
the island's"steepshores" and "rockysurface".
4.39. Serpents'Island's size,and the fact that its physical composition includesrocks - as is
the case with many islands -arephysical facts. Nonetheless, these aspects do not detract from
the fact that theisland qualifies as a full-fledged island since size and geologicalcomposition
are not the criteriaby which a feature may be defined as being a "rock" under Article 121,
paragraph 3 of the 1982 Convention. Moreover, in the case of Serpents'Island, a number of
19
At para. 3.36 of its Reply, Romania erroneously cites Ukraine's treatment of Serpents'Island in its
Ukraine'sCounter-Memorial discussed thegeographical characteristics of the Island.early wrong.
20 RR, para. 3.38.additional factors militate in favour of concluding that it is not a mere "rock" within the
meaning of Article 12 1,paragraph 3.
4.40. First of all, the dimensions of Serpents''Is~and are significant.As can be seen from the
topographical map reproduced as Figure 4-8 to this Rejoinder, the island is some 615 metres
long and 560 metres wide, it rises to a height of between 37 and 41 metres, and has a
circumference of approximately 2.3 kilometres. Figure 4-8, and the photographs included as
Photos A and B in Ukraine's Counter-Memorial,which are included after Figure 4-8, also
show that on both sides of the cape protruding from the northeast corner of the Island there
are bays which are broad and deep enough to allow the mooring of vessels. A mooring
complex was completed in 2004 which regularly receives cargo deliveries (see Photos F and
G in Ukraine'sCounter-Memorial).
4.41. Second, Serpents'Island'shistorical importance cannot bedenied. The Islandhas been
depicted on maps since ancient times by numerous cartographers as can particularly be seen
from the maps reproduced in the Map Atlas attached to Romania'sMemorial. As shown in
Ukraine's Counter-Memorial, and illustrated by the publication Descriptio Romaniae
deposited by Romania with the Court, the Island's religioussignificance is reflected in the
numerous references to it in ancient Greek literature and poetry.21The location of the Island,
at the mouth of the Danube, coupled with the fact that it is theonly Island in the Black Sea,
contribute to its strategicimportance, a pointwhich is accepted by ~omania.~~
4.42. Third, Serpents' Islandis, and has been, inhabited and therefore can obviously sustain
human habitation. Similarly, it is also capableof sustaining an economic life of its own. The
economic use of Serpents' Islandis not just a recent development initiated by Ukraine; it has
gone on for a considerable time. Ukraine's recent development ofthe Island is no more than
the natural continuationof previous uses to which the Island had been put.
4.43. There is an inherent contradiction in Romania's argumentswhen, on the one hand, it
states that Ukraine has sought artificially to improve Serpents' Island'sstatus by building
houses and structures on it while, on the other hand, Romania continues to contend that the
21 UCM,paras.7.50-7.56andh. 62.
22 In fact, para.5.4 of theReply contendsthatSerpents' Island "tumultuoushistoriys"solely due to its
strategic importance. Topographic Map ofSerpents tland
PlpdwoeMinisOfacotyndIsland is an insignificant "rock", devoid of vegetation and even soil. If such buildings and
structures can be erected on Serpents' Island, itis because it is large enough to accommodate
these facilities, including a substantial docking structure. If small communities of people can
live on Serpents' Island, as has been recorded at least since the 19th Century when the
lighthouse was being built, the Island is clearly capable of supporting human habitation and
having an economiclife of its own.23
4.44. It followsthat Serpents'Island's geographicalcharacteristicsare such that, froma legal
point of view, it conforms with the definition of an island provided by Article 121,
paragraph 1 of the 1982 Convention. It is a naturally formed area of land, surrounded by
water, and above water at high tide. It is not, a contrario, an inhospitable rock unable to
sustain human habitation or an economic life of its own under the terms of Article 121,
paragraph 3.
4.45. Romania's Replyadvances the novel, and unprecedented, theory that the purpose of
Article 12l, paragraph3 "isto institutean exceptional regime forvery small islands".24In this
respect, Romania refers to the discussion contained at paragraphs 8.6-8.30 of its Memorial
recalling the origins of Article 121 of the 1982 Convention and its travaux priparatoires.
However, the travaux priparatoires of the Convention are of no assistance to Romania
because all they show is that a number ofproposals were advanced by different delegations
for purposes of defining the regime of islands and their maritime spaces, and that these
positions were by and large determined by national interests, with Romania being no
exception. However, none of Romania'sproposals were reflected in the definition that was
ultimately agreedin Article 121,paragraph3.
4.46. It is generally recognised that, in order to achieve a consensus, the language that
appears in Article 121, paragraph 3 ("rocks which cannot sustain human habitation or
economic life of their own")was theresult.of a compromisebetween various positions and, as
such, inevitably contained a degree of ambiguity.25Precisely because the finally agreed
23 See hrtherparas6.70-6.71,below.
24 RR, para.5.10.
25 UCM, paras. 7.38 and 7.41.For a listof opinions on the subject,see R. Kolb, "L'interprknetiod
I'artic121,paragraphe3, delaConventionde Montego Baysurle droitde la mer:'Lesrochersquine
se prstentpa21I'habitatihumaineou aune vie Bconomiquepropre[. ..l"'XL Annuairefranqais de
droit international,4,pp.876-909 atp. 879.definitionreflected a compromise,no specific position was adopted, whether based on sizeor
on the natural composition (rockyor not) of the feature. Consequently, it cannot be concluded
on the basis of the travawrprkparatoires, as Romania does in its pleadings, that it was the
intention of States to extend the arnbit of Article 121, paragraph 3 to cover a large range of
featuresother than rocksstrictosens~.~~
4.47. Thenegotiating historyof Article 121,paragraph 3 does show,however, that Romania
tried to introduce a proposal that Article 121, paragraph 3 should not be limited to rocks
stricto sensu,but should also extend to small islands.Indeed, the Romanian proposal referred
to the terms "islet" or "island similar to an islet" (and not "rock") to indicate features that
shouldbe ignored for purposesof generating continental shelf and EEZrights. In other words,
Romania considered it necessary to introduce a third category of feature presumably because
it understood that Serpents' Island was not a mere "rock". Articles 1 and 2 of Romania's
proposal presented on 12 August 1974 demonstrate that the proposed definition had been
conceived by the Romanian delegation with Serpents' Island in mind. Article 1 read as
follows:
"1.An islet is a naturally formed elevation of land (or simply an eminence of the sea-
bed) less than one squarekilometre in area, surrounded by water,which is above water
at high tide.
2. An island similar to an islet is a naturally formed elevation of land (or simply an
eminence of the sea-bed) surrounded by water, which is above water at high tide,
which is more than one square kilometre but less than [. ..] square kilometres in area,
which is not or cannotbe inhabited (permanently)or which does not or cannot have its
own economic life."
Article2 stated in relevant part:
"1. In principle, a Statemay not invoke the existence, in one of its maritime zones, of
islets or islands similarto islets as defined in article 1, for the purpose of extending
the marine spaces whichbelong to its coasts.[. ..]
4. Islets or islands similarto islands which are situated beyond the territorial sea, on
the continental shelf or in the economic zone of the same State,may have around them
or around some of their sectors security areasor even territorial waters in so far as this
26 RM, paras.8.17-8.19. is without prejudice to the marine spaces which belong to the coasts of the
neighbouringState or states.[. ..ln2'
4.48. At the eleventhsession in 1982,Romania proposed the addition of a new paragraph 4
to the draft article, whichread as follows:
"4. Uninhabitedislets should not have any effects on the maritime spacesbelonging to
the main coastsof the States c~ncerned."~~
4.49. It is obvious from these proposals that, at that time, Romania did not consider
Serpents' Island to be a "rock", contrary to what it argues in the present case. Romania's
pleadings on this issue are no more than an after-thought given that the final version of
Article 121, paragraph 3 did not correspondto Romania's negotiating proposals, which were
not acceptedby the conferen~e.~~
4.50. It follows that Serpents' Island forms part of the geographical context of the case and
its coasts are part of the relevant coastsof Ukraine. The role that Serpents'Island playsin the
construction of theprovisional equidistanceline will be dealtwith in Chapter 5.
Section 3. Romania'sCoast
4.51. Romania's treatmentof its own coasts, and its position thatthe entire Romanian coast
abutting the Black Seais relevant to the delimitation, standsin stark contrast to its piecemeal
dissection of Ukraine'scoast and its argumentthat large portions of Ukraine'scoast are not
relevant. These inconsistencies manifest themselves in at least three different ways, each of
which underscores the artificiality of Romania's identification of the relevant coasts. First,
Romania fails to applyits "segment approach" consistently to its own coast; second,Romania
treats parts of its coasts as both opposite and adjacent to the coast of Ukraine while denying
large parts of Ukraine'scoast the same treatment; third, Romania uses an artificial feature -
the Sulina Dyke - and a sand spit - the Sacalin Peninsula - as basepoints for purposes of
27 Document AlCONF.62lC.2L.53 (1974) articles1and 2, 11OfficialRecords 228 (Romania).Emphasis
added.
28 Document MCONF.621L.118, (1982), article 121, paragraph 4, XVI Official Records 225 (Romania).
Emphasis added.
29 As for Romania'sunilateral statement madeaccording to Article310of the 1982 Commission,Ukraine
has already respondedto this point in itsCounter-Memorial,7.29-7.32.drawing a provisional equidistanceline while denying Serpents'Island - a full-fledged island
of farmore significance - the same treatment. Eachof these defects will be discussed below.
A. Applying Romania's Projection of Coastal Segments Theory to Its Own
Coast
4.52. While Romania's Reply separates the Ukrainian coast into eight segments, and then
argues that four of these segments do not front the area to be delimited, Romania fails to
apply the same criteria to its own coast. According to Romania, its relevant coast comprises
just two sectors -one fiom the terminal point on the land boundary and the end of the Sulina
Dyke to the tip of the Sacalin Peninsula; the second from the Sacalin Peninsula southwards to
the land boundary between Romania and Bulgaria. According to Romania, each of these
segments projects into the areato be delimited.
4.53. It is apparent, however, that if Romania had analysed its coast in the same way it
analyses Ukraine'scoast, then the Romanian coast should have been divided into four sectors,
at least two of which -on Romania'sthesis - would be irrelevant because they do not project
into the relevant area. This canbe seen on Figure 4-9.
4.54. As the Figure shows, a significant part of Romania's coast south of the Sacalin
Peninsula faces almost due south and thus, were Romania'sposition on perpendicular coastal
projections to be adopted, would be irrelevant to any delimitation with Ukraine. Similarly, a
fbrther stretch of Romania's coastfiom Lake Razim to Cape Midia faces southeast under
Romania'sperpendicular theory, and thus also would be of little relevance to the delimitation
with Ukraine.
4.55. It follows that, if Romaniahad used the same kind of analysis for its own coast that it
applies to the Ukrainian coast, then only two short segments of Romania'scoast - from the
Sulina Dyke to the Sacalin Peninsula, and from Cape Midia to the boundary with Bulgaria -
would actually face eastwards and thus be relevant.These two stretches of coast measure less
than halfthe length of the coastthat Romania argues is germane.Romania's Coastal Pr~;+ctio
$kid;
1L4.56. Ukraine does not consider that such a piecemeal approach to the identification of the
relevant coasts of the Parties reflects the Court's pastpractice or the principles and rules of
international law relevant to maritime delimitation. As Ukraine explained in its Counter-
Memorial, the relevant coasts in this case comprise the entire coast of each Party which
borders the area to be de~imited.~'As the foregoing discussion has shown, Romania accepts
this principle for its own coasts, but fails to accord the relevant coast of Ukraine equal
treatment, and thus distorts the actual coastal geography which is central to the delimitation
process andthe achievementof an equitable result.
B. Romania's Artificial Distinction between "Opposite Coasts" and
"AdjacentCoasts"
4.57. As noted earlier, the second way in which Romania treats the coasts of the Parties
differently arises as a result of Romania's insistence that, to be relevant, a coast of one Party
has to be either "adjacent" or "opposite" to that of the other. According to Romania, "it has
been the constant practice of the Court and of arbitral tribunals to characterise the relationship
of the coasts of the parties interms of adjacencyor oppositeness."3'
4.58. This proposition is facile. The geographic configuration of the coasts of two States is
what itis -a product of nature. Coasts generateentitlementsto territorial sea, continental shelf
and an Exclusive Economic Zone regardless of what direction they face. It is in situations
where there are overlapping entitlements of two or more States that delimitation comes into
play regardless of whether that overlap is a product of "opposite" coasts, "adjacent"coasts,or
coasts thatbear some intermediate relationshipwith each other.
4.59. Romania considers thatthe northern portion of its own coast -from Sulina Dyketo the
SacalinPeninsula -is adjacentto Ukraine's east-facingmainland coast, while all of Romania's
coast -both the northern sector and the southern sector extending from Sacalin Peninsula to
the boundary with Bulgaria - is opposite to Ukraine's coast on the Crimean Peninsula.
Accordingly, Romania views its entire coast aspart of the "relevant coasts", and its northern
31 UCM, paras.3.9-3.57.
RR, para.3.18.coast as effectively "doubly relevant"because it is both an "opposite" coast and an "adjacent"
coast.
4.60. When it comes to Ukraine's coast,however, Romania considers it justified to exclude
all of Ukraine'ssouth-facing coastbetween "Point S" and Cape Tarkhankut because that coast
is said to be neither adjacent nor opposite to Romania'scoast. According to Romania, this
long stretch of Ukrainian coast loses its relevance because any entitlement it may have to
maritime areas "is eclipsed by that generated by the coast south of Point S or east of Cape
~arkhankut. "32
4.61. As Ukraine has explained, this line of reasoning is divorced from the law and at odds
with the Court's pastpractice.33Romania acknowledges that its claim is dictated by just two
basepoints - Sulina Dyke and the tip of the Sacalin Peninsula. But that does notmean that the
rest of Romania's coast is "eclipsed" by these basepoints and thus somehow becomes
irrelevant. As Romania itself acknowledges: "otherwise the existence of minor coastal
projections andpromontories coulddetermine, in an arbitrary way, whole coastal lengths.""
The same holds true for the coast of Ukraine. Just because Ukraine's south-facing
4.62.
coast does not provide basepoints for the drawing of a provisional equidistance line, it does
not follow that that coast is rendered irrelevant. It is the whole of the coast which generates
rights to maritime areas -not just basepoints -and it is the entire coast which must be taken
into account to the extent that the legalntitlements generatedby that coast meet and overlap
with those ofaneighbouring State.
4.63. The whole notion of one stretch of coast being "eclipsed" by another is alien to the
Court's jurisprudence.As discussed earlier, in the Tunisia-Libyacase the Tunisian coast along
the entire interior of the Gulf of Gabes was not "eclipsed",or rendered irrelevant, by other,
more-seaward portions of the Tunisian coast. Similarly, the coasts of the United States and
Canada alongthe back of the Gulfof Maine, and eveninto the Bay of Fundy, were considered
to be fullyrelevant in the determinationof an equitableboundary in the most seaward reaches
in the GulfofMaine case.
32
33 Ibidp.,ra.3.39.
SeeSection2 to thisChapter,above.
34 Ibidp.,ra.3.65.TheRelevant Coasts
RelevantArea4.64. In summary, the relevant coasts of the Parties are the coasts which generate maritime
entitlementswhich meet and overlap and arethus subjectto delimitation. Inthe present case,
these arethe coasts ofthe Partiesthat havebeen identifiedby Ukraine anddepicted on Figure
4-10which also shows the relevantarea.
C. Romania's Useof Sulina Dyke and the Sacalin Peninsula as Basepoints in
Contrast to ItsDisregardof Serpents'Island
4.65. The third way in which Romania treats the relevant coasts of the Parties unequally
concerns its use of Sulina Dyke and the Sacalin Peninsula as basepoints for drawing the
provisional equidistance line whileignoring Serpents'Island for this purposeWhile Ukraine
will discuss the proper constructionof the provisional equidistance line inthe next Chapter, a
numberof points deserve to be mentionedhere.
4.66. As Ukrainepointed outin its counter-~ernorial,~~the Sulina Dykeis an entirelyman-
madeinstallation.Romania'sReplystates thatthe Dyke is a permanent harbour work and was
used by Romania as a basepoint when Romania adopted a system of straight baselines in
1997.36Romania therefore concludes that use of the Sulina Dyke as a basepoint is justified
under Article 11 of the 1982 Law of the Sea Convention because it is permissible to use
permanent harbour works for purposes of delimiting theouter limits of the territorial sea.
4.67. As for the Sacalin Peninsula,Romania concedesthat this feature was, until relatively
recently, actuallya sand islet andwas referredto as "Sacalin As a resultof silt
deposits, theisland apparently has become connectedto the mainland coast. Significantly,
Romania doesnot take issuewith Ukraine'sobservationthat the Peninsula isuninhabited and
isno morethan a sand spit which hasnever supported anyhuman or economic activity of its
own.
35 Forexample,UCM,para.7.13.
36 RIT ,aras3.64-3.70.
37 Ibid.,par3.68.4.68. Ukraine hasnot disputed the fact that both features provide basepoints for the
establishment of the outer limits of Romania's territorial sea. Given that the provisional
equidistance line is a line whichisdrawn from the nearest points on the respective baselines
of the Parties, Ukrainehasalso used both features forpurposes of constructing the provisional
equidistance line.
4.69. What Ukraineobjects to is Romania'sinconsistent approach in using both of its own
features as basepoints forits version oftheprovisional equidistanceline while totallyignoring
Serpents' Islandon the Ukrainian side for the same purpose. It iscompletely inequitable for
Romania to employbasepoints on a man-made structure and an uninhabited sand spit along
its own coast while disregarding basepoints situated on a naturalisland forming part of
Ukraine's coast - Serpents' Island - which has geographical, historical and strategic
importance. It is also inappropriate for Romania, in the northern sector of its claim line, to
claim more than the provisional equidistance line, all the more so when the provisional
equidistance Iinehasbeen wrong!y calculatedby ignoring Serpents'~sland.~'
Section 4. The RelevantArea
4.70. While the Parties appear to agree that the relevant area should be identified by
reference to areas of overlapping legal entitlements, and takinginto account the presence of
third States in the region, they differ over the extent of the area in three respects. These
differences are illustratedonFigure 4-11. Two of the differences are material, while the third
is of relativelyminor importance. Ukraine will explain its position with respect to each of
these three areas.
A. TheNorthernArea Lyingoff Ukraine's South-Facing Coast
4.71. Romania seeks to exclude fiorn the relevant area the entire area, comprising over
15,000squarekilometres, lying off Ukraine'scoast north of an arbitraryline that Romaniahas
drawn between its "PoinS" ljust south ofOdessa) and CapeTarkhankutT . his area is shaded
in greenan Figur4 -1 1.There are no IegaIgrounds for such an exclusion, which isno more
38 UCM,paras. 4.15-4.19andFigure4-2.than the product of Romania's misplaced attemptto deny that Ukraine's south-facingcoast
comprisespartof the relevant coastsof the Parties.
4.72. As demonstrated earlier, all of Ukraine's coastlying behind Romania's imaginary
closing line generates continental shelf and Exclusive Economic Zone rights to a distance of
200 nautical miles.These entitlementsextend as far southas a hypothetical boundary between
Romania andBulgaria regardlessof whether such a boundaryis depicted as a straight line - as
Ukraine has done in defining the southern limit of the relevant area - or an equidistance line -
as Romaniahas done.
4.73. Romaniapurports to accept the principle that the relevant area should be defined in
relation to areas where there are overlapping legal entitlements - entitlements which, by
definition, can only be generated bythe coasts off which such areas lie.39However, when it
comes to the northern area excluded by Romania, the assertion is that as a result of the
configuration of the Parties' coasts, Romania "has no entitlement to maritime zones in that
zone, nor hasit even made such a claim".40
4.74. Romania'smistake lies in equating the identification of the relevant area with the
unilateral claimsof one Party or the other. But the former is not dictated by the latter. In
previous cases, such as Tunisia-Libya, the Court has made it clear that the relevant area is
identified by reference to the coasts of the parties which abut the overall areato be delimited
between them, and which do not face a third State. In Tunisia-Libya, the relevant area
comprised theentire Gulf of Gabes,not because Libya'sclaim extended into theGulf - which
itdid not - but because the Tunisian coast bordering the Gulf abutted the general area between
Libya andTunisiawithin which thedelimitation wastobe carried out.
4.75. As Ukraine has pointed out, all of its south-facing coast between Odessa and Cape
Tarkhankut generates maritime entitlements to a distance of 200 nautical miles. Romania
enjoys the same entitlements from its coasts - any overlapping entitlements being subject to
delimitation. Given that the northern area excluded by Romania has no possible relevance to
any third State in the region, and that it lies within 200 nautical miles of the coasts of the
Parties, the areaclearly comprisespart of the relevant area.
39
40 See,forexample R,R,para.3.83.
Ibid.para.3.77. B. The EasternTriangle WhichConcerns a ThirdState (Turkey)
4.76. The second area where the Parties differ concerns a triangleof area lying south of the
Crimean Peninsula between Ukraine and Turkey. This area is shaded in red on Figure4-11,
and is over 16,000 square kilometres in size. Ukraine's positionis that this triangle does not
form part of the relevant area because it is relevant to delimitation between Ukraine and a
third State (Turkey), not to delimitation with Romania. Romania, in contrast, persists in
arguingthat the triangle should form part of the relevant area.
4.77. Romania's argumentis based on the assertion that the trianglerepresents "overlapping
entitlements of Romania and Ukraine (and of Turkey and in part of ~ul~aria)."~'Apart From
the inconsistency of this argument with Romania'sattempt to exclude the northern area, the
contention ignores the obvious point that, even under Romania'sthesis, the area in question
has nothing to do with Romania because it concerns an area whichis, and has been, subjectto
delimitation between Ukraine and Turkey.
4.78. This can be seen very clearly on Figure 4-11, which depictsthe triangle in relation to
the existing delimitations between Ukraine (as the successor to the Soviet Union) andTurkey,
on the one hand, andbetween Bulgaria andTurkey, on the other.
4.79. Subject to agreement on its final extension to the west, the Ukraine - Turkey
delimitation extends along the southern limit of the triangle for almost its entire course. The
areas to the north and south of the line (the former of which includes the triangle) were
obviously relevant to the delimitation between Ukraine and Turkey. Clearly, Romania has no
claims in this area and, as far as Ukraine is aware, has never objected to this boundary. It
follows that the areas delimited by the Ukraine-Turkeyboundary, including those areas lying
within the triangle, were relevant solely to the delimitation betweenthe two States concerned
and hadnothing to do with Romania.
41 RR, para3.83.4.80. Necessarily, therefore, these areas cannot fonn part of the area to be delimited
between Ukraine and Romania, which is thesubject of the present proceedings.They me not
part of the "relevantarea" inthiscase.
C. TheSmall Sliver ofArea in the South
4.S1. The third difference between the Parties concerns a small sliver of area situated in the
southwest part of the relevant areashadedin green on Figure4-1 1. This is a relatively minor
difference given that itcovers only some 2,200 square kilometres. The difference arises
because Ukrainehas circumscribed the relevant areaby drawing a straight linefiom the land
boundary betureenRomania and Bulgaria up to the location where a potential tripoint with
Bulgaria andor Turkey would lie, whileRomania has used anequidistance line with Bufgaria
as the relevant area'ssouthern limit.
4.82. There is no existing delimitation between Romania and Bulgaria, whether an
equidistance line or otherwise, asRomania Thus, Romania's use of an
equidistance line is hypothetical.In contrast, Ukraine has used a straight line to depict the
southern limit of the relevant areabecause this accords with the Court'spast practice. For
example, in the Tunisia-Libya case, the Court fixed the lateral limits of the relevant area by
the use of straight lines. A similar approach was adopted in the Java Mayen case. Thus,
Ukraine'sposition is fully in line withthe Court'spractice andis reasonable.
4.83. For all of these reasons, Ukraine continues to maintain that its identification of the
relevant area isappropriate and that Romania'sarguments,in particular in so far as they are
directed at excludingimportant areas inthe north, and including the "triangle"in the east, are
misplaced. As for applylng the test ofproportionality within this area,Ukraine will address
thisissue in Chapter 8. CHAPTER5
THE APPLICATIONOF THE GEOGRAPHICALFACTORS IN THE
CONSTRUCTIONOF THE PROVISIONALEQUIDISTANCE LINE
Section 1. Introduction
5.1. In its Counter-Memorial, Ukraine pointed out that it is now well settled that the
process of delimitation comprises threebasic steps. The first step involves the constructionof
a provisional equidistance line, which is a line that is equidistant fromthe nearest points on
the baselines from whichthe breadth of the territorial seas of the two States is measured. The
second step then involves identifying the relevant circumstances, geographic or otherwise,
which characterize the area tobe delimited and determining whether andto what extent those
circumstances call for theadjustment of the provisional equidistance line. The third step is to
test the equitablenessofthe result obtainedbyreferenceto the elementof proportionality.'
5.2. In this Chapter,Ukraine,will revisit thebasic elements involved in the construction of
the provisional equidistanceline. Romania acceptsthat this is the first step in the delimitation
process.However, Romaniaerrs in the selectionof the relevant basepoints for establishingthe
line, andit attempts to pre-judge the relevantcircumstances in constructing the line instead of
assessing them independently as part of the second stage of the process. The result is a
wronglycalculatedprovisional equidistance line and amisapplicationof the law.
Section2. Selecting the Basepoints for Constructing the Provisional Equidistance
Line
5.3. The selection of the relevant basepoints for constructing the provisional equidistance
line should be straightforward and uncontroversial. As Ukraine explained in its Counter-
Memorial, the equidistancelspecial circumstancesrule for the delimitation of the continental
shelf and EEZderives fromrules that havebeen developed since 1958for the delimitation of
I
UCM, para7.3.the territorialsea.2Under these rules, the relevant basepoints for constructing the equidistance
line are those that are equidistant from the nearest points on the baselines from which the
breadth of the respective territorial seas of the Parties is mea~ured.~This is the standard
definition of a "strict" or unqualified equidistance line as employed by the Court and
international tribunals- in other words, an equidistance line based on the relevant basepoints
without pre-judging any particular geographic or other relevant circumstance that may
subsequentlyjustify the adjustmentof the provisional equidistance line.
A. The RelevantBasepoints on Ukraine'sCoast
5.4. In its Counter-Memorial Ukraine described the course of the provisional equidistance
line and identified the co-ordinates of the turning points on that line.4As for the basepoints
which govern the construction of the line, on the Ukrainian coast there are a series of
basepoints located on Serpents' Island andone basepoint located on Cape Khersones. These
are illustratedon Figure 5-1.
5.5. Obviously, as has been notedin Chapter 4, Serpents' Island hasa coast. It follows that
the outer limits of Ukraine's maritime entitlements to the south of Serpents' Island are
measured from the basepoints on the low-water mark - or "normal baseline" - of the island
just as the outer limits of Ukraine'smaritime entitlements in the vicinity of Cape Khersones
are measured from the basepoint located there. Eachof these basepoints is fully appropriate
for purposesof calculating the course ofthe provisional equidistance line.
5.6. Romania attempts to deny the fact that Serpents'Island provides any basepoints for
establishing the provisional equidistance line. In fact, Romania goes so far as to deny that
Serpents'Islandeven possesses abaseline capable of generating basepoints.
5.7. In its Reply, Romania refers to the list of geographic co-ordinates that Ukraine
furnished to the United Nations on 11November 1992for purposes of notifying Ukraine's
system of straight baselines. Romania argues that this notification includes no reference to
2 Ibid .aas. 7.5-7.8.
3 Ibid .aa. 7.8.
4 SeeFiyre 7-1to UCM, afterpage 198.Serpents'Island, and that this means that the island is "in Ukraine'sview, a basepoint that
doesnot lie on any baseline."'
5.8. This contention is entirely without merit. It cannot seriously be argued that Serpents'
Islanddoes not possess a baseline; otherwise it would not possess aterritorial sea, which even
Romania acknowledges exists. That baseline is, under the provisions of Article 5 of the 1982
Convention,the "normal baseline" - in other words, the low-water mark along the coast. This
was officially noted in Article 5 of Ukraine's 1991 Statute Concerning the State Frontier to
whichUkraine'sCounter-Memorialmade referen~e.~
5.9. It is clear that Ukraine's1992 notification of its baselines to the United Nations was
provided solely in order to notify Ukraine's system of straight baselines, not to set out
Ukraine'sbaselines in full. Romania asserts that this characterization of Ukraine's notification
is "misleading"because the notification only deals in part with a system of straight baselines
and that, "in several sections thebaseline followsthe low-water line ofthe ~oast."~
5.10. Romania's contentionis without object. An examination of Ukraine's notification
shows that each of the numbered coordinates listed therein correspondsto the end-points of a
particular straight baseline segment. To illustrate the point, Figure 5-2, overleaf, shows
Ukraine'ssystem of straightbaselines borderingthe relevant areawith the location of each co-
ordinate listed inthe 1992notification identified bypoint number.
5.1 1. Obviously, co-ordinates are only necessary - and thus were only listed in Ukraine's
notification -for the points at which a straight baseline segment starts or ends. There is no
need tolist co-ordinates when the baseline is the "normal baseline" alongthe low-water mark
of the coastsince the low-watermark is the baseline. Indeed, to require a State to notify allof
its basepointsalong a normalbaseline would requirethe listing of aninfinitenumber of points
since a normal baseline is comprised of a virtuallyunlimited number of basepoints. Such an
exercisewould make no sense.
5
6 RR,para.8.12.
7 SeeUCM,para.7.27andAnnex46, Vol. 4.
RR,para.8.14.5.12. Equally misplaced is Romania's argument that Ukraine should have notified its
baselines on Serpents'Island under Article 16 of the 1982convention.' Article 16 provides
that a coastal State should notify the co-ordinates of points, or submit large-scalecharts, for
baselines used for measuring the breadthof the territorial sea under Articles 7,9 and 10of the
Convention. These articles deal with straight baselines (Article 7), baselines closing the
mouth of a river (Article g), and baselines closing bays (Article 1O),respectively. Obviously,
none of these applies to Ukraine'snormalbaselines on Serpents'Island, and thus Article 16 of
the Convention is completely irrelevant.
5.13. It is thus clear that the reason why no basepoints were listed for Serpents'Island in
Ukraine's 1992 notification was because there was no system of straight baselines on the
island calling for notification, only normal baselines. It is absurd for Romania to claim that
Serpents' Island is "a basepoint that does not lie on any baseline" or that it should have been
included in Ukraine's 1992 notification. Serpents'Island has a baseline - the low-water mark
along its coast- and thus the basepoints on that baseline are the correct basepoints to be used
to plot the course of the provisional equidistanceline.
B. The RelevantBasepointson Romania'sCoast
5.14. On the Romanian side, there are two basepoints that control the course of the
provisional equidistanceline. The first is situated at the end of the Sulina Dyk- a man-made
feature that extends several kilometresout to sea. The secondis on the seaward-mostpoint of
the Sacalin Peninsula.
5.15. Even though Sulina Dyke is an artificial structure that does not actually form part of
Romania'scoast, Ukraine has acceptedthat itprovides one set of basepoints for the plotting of
the provisional equidistance line because the Dyke forms part of Romania'sbaselines from
which the breadth of its territorial sea is measured. This, of course, is without prejudice to
whether, in the second stage of the delimitation, Sulina Dyke should be ignored as a special
circumstance because of its artificial nature and the distortingeffect it has on the calculation
of a strict equidistanceline. As Figure4-2 to Ukraine'sCounter-Memorial shows(reproduced,
with different colouring, as Figure 7-1 after page 136, below), Sulina Dyke has a material
S Ibid .ara.8.1andfootnote 715. p>$y$
Ukraine'sStraightBaselines
notifiedtotheUNin 1992
Figur512effect on the course of Romania's provisionalequidistance line -a line which ignores the
presence of Serpents' Island. Nonetheless, Ukraine has used the Dyke for purposes of
constructing the provisional equidistance line because such a line should be based on the
unqualified application of the equidistance method without pre-figuring the relevant
circumstances.
5.16. Similarly, Ukraine has accepted that Sacalin Peninsula also provides a basepoint for
constructingthe provisional equidistance line despite the fact that it is a sand spit (which was
previously a small island) with no human habitation or economic activity of its own. Once
again, the use of the peninsula is appropriate because the outer limit of Romania'sterritorial
sea is measured from the basepoint situated on the seaward-most projection of the feature,
without prejudice to whether an uninhabited sandspit should be discounted as a special
circumstanceat the secondstage of the delimitation.
5.17. Using these sets of basepoints on each Party's coast, the course of the provisional
equidistanceline can be readilyplotted, and itscourseis depicted on Figure 5-1.
Section 3. Romania's BiasedApproach to Selecting the Relevant Basepoints
A. Romania's Inappropriate Disregard of Serpents' Island
5.18. Romania's construction of the provisional equidistance line is flawed by its
inappropriate selection of basepoints on the Ukrainian side for the construction of the line.
What Romania has done is to use the Sulina Dyke and the Sacalin Peninsula as basepoints on
its own coast whilst ignoring Serpents' Island altogether despite the fact that it forms part of
Ukraine's relevant coast. Apparently, Romania considers that it accords with equitable
principles toemploy basepoints situated on a man-made structure and a sand spit on its side
while denying to Serpents'Island the same treatment. This biased approach to the plotting of
the provisional equidistanceline is inconsistent andmethodologically wrong.5.19. Romania labels its approach a "Principled Approach", but clearly it is not.9 The
construction of the provisional equidistanceline should be a neutral exercise based solely on
the geographic facts of the case. To this end, the basepoints of each Party located on the
baselines from which the breadth of each Party's territorial sea ismeasured are the basepoints
that should be used for plotting the line. Any other method for constructing the provisional
equidistance line, particularly one that arbitrarily ignores somebasepoints in favour of others,
runs counter to the law because it involves pre-judging the effect that particular geographic
factors may play aspotential special or relevant circumstances.
5.20. In other words, the first stage of the delimitation shouldbe 'delimitation neutral'in the
sense that it involves constructing a strict equidistance line from the respective basepoints on
each Party's baseline. It is only at the second stage - the stage at which the relevant
circumstances are identified and assessed - that the question arises whether particular
geographic or other circumstances call for the adjustment of the provisional equidistanceline.
5.21. Romania recognizes this as a matter of principle, but then fails to follow a principled
approach. For example,Romania statesin its Reply that:
"The delimitation of the maritime zones beyond the territorial sea is a two stage
process: the now well-established method 'involves firstdrawing an equidistance line,
then consideringwhether there are factors calling for the adjustment or shifting of that
line in order to achieve an 'equitable result". In other words, the relevant
circumstances come after a line has first been drawn according to the principle of
equidistance."'0
5.22. Romania also cites with approval the Court's pronouncement inthe Jan Mayen case
that:
"[...l special circumstances are those circumstances which might modify the result
produced by an unqualified application of the equidistance principle. General
international law, as it has developed through the case-law of the Court and arbitral
jurisprudence, and through the work of the Third United Nations Conference on the
Law of the Sea, has employed the concept of 'relevant circumstances'.This concept
9 RR, p.273.
10 Ibid., para.6.5, citing Maritime Delimitationand Territorial Questionsbetween Qatar and Bahrain
(Qatar v.Bahrain), I.C.J. Reports20p.,40,atp.104, para217. can be described as a fact necessary to be taken into account in the delimitation
'
5.23. This principle was also adopted by the Court of Arbitration in the Anglo-French
~
Arbitrationwhichheld:
"In the absence of agreement, and unless another boundary is justified by special
circumstances, the boundary is to be the line which is equidistant from the nearest
points of the baselines from which the breadth of the territorial sea of each State is
measured. "'*
5.24. It followsthat the provisional equidistance line shouldbe established on the basis of a
strict equidistance line before any relevant circumstances are considered. The relevant
circumstances only come into play at the second stage of the delimitation exercise. By
arbitrarily excludingthe relevant basepoints on the coast of Serpents'Island at the first stage
of the process, Romania'smethodology is based on a flawed foundation, and misapplies the
i law.
B. Romania's Flawed Contention that Serpents' Island Is a Relevant
Circumstance
5.25. Further evidence of Romania's misguided approach appears from Romania's
characterisation of Serpents'Island as a special, or relevant, circumstance." While Chapter 6
will discuss the relevant circumstances inmore detail, it is appropriate to point out that the
fact that Romania labels Serpents' Islanda special or relevant circumstance underscores the
point that Serpents' Islandshould have been consideredby Romania only at the second stage
of the delimitation process after the provisional equidistance line had been established and
II MaritimeDelimitation in the Area befween Greenlandand Jan Mayen (Denmarv.Norway, I.C.J.
Reports 1993,p. 38, a62,para. 55.
12 Case Concerning the Delimitation of theContinentalShelf between the United Kingdom of Great
Britain and Northern Ireland and theFrench Republic,ion of 18 June 1977,reprinted in RIAA,
Vol. XVIII,at p. 111, para. 238. Romania argues in its Reply that this case is not relevant because the
ScillyIslands bear no resemblance to thecircumstances of the present case 8.18). But, once
again, Romaniacoduses the role of special or relevant circumstances at the second stage of the
delimitation with the construction of the provisional equidistance line at the fust stage. The Court of
Arbitrationposited a strict, or unqualified, equidistance line as athe delimitation, and only
13 in a secondstage, then adjusted thatline to take into account the presence of the ScillyIslands.
See, for examplRR at par6.2 where Romania asserts that Serpents' Island is "themost important
special circumstance", and at p. 194 where Romania labels one of its sections "Serpents' Island as a
relevantcircumstance." that the basepoints situated on Serpents' Island should have been used for constructing the
provisionalline.
5.26. Romania admits asmuch when it states that the relevant circumstances should onlybe
taken into account "after a line has first been drawn according to the principle of
equidistance."'4If this is so,and if Romania wishesto argue that Serpents'Island is a relevant
or specialcircumstance that shouldbe given a reduced effect, then theplace to do this is at the
second stage, not by pre-judging the issue for purposes of plotting the course of the
provisionalequidistance line itself.
5.27. Of course, to the extent that Romania considers Serpents' Island to be a relevant
circumstance, it must also take into account the dominant geographic circumstance
characterizingthe area to be delimited, which is thesubstantial disparity in the overall lengths
of the coasts of the Parties abutting the area to be delimited. As Chapters 6 and 7 will show,
Ukraine has taken this key factor into account, and has shown how and why the provisional
equidistanceline should be adjusted togive properweight to this circumstance.
Section 4. Conclusion
5.28. For present purposes, the construction of the provisional equidistance line should be
drawn from the nearest basepoints on each Party'sbaselines from which the territorial sea is
measured, without prejudice to the effect that any relevant circumstances may have in the
adjustment of that line. Figure 5-1 shows the course of such a line and the basepoints that
havebeen used for its construction.
I
,
I I4 RR,paras.6.3 and 6.5. CHAPTER 6
THE IDENTIFICATION OF THE RELEVANT CIRCUMSTANCES
Section 1. Introduction
6.1. Both Parties acknowledge that the "relevant circumstances" characterizing the areato
be delimited play a critical role in the delimitation. However, Romania's Reply continues to
take a confused approach to the identification and assessment ofthe relevant circumstances,
particularly the importance of the coastal geography and the substantial disparity that exists
between the length of the Parties' coastsfronting the area as a circumstance calling for an
adjustment of the provisionalequidistance line.
6.2. While Romania's Memorialtook the position that the only relevant circumstances in
the case were the enclosed nature of the Black Sea and third party delimitations agreed
therein, its Reply now includes Serpents' Island as a relevant or, as Romania terms it,
"special" circumstance.Moreover, while previously paying lip service to the importance of
the geographical factors - indeed, Romania's Memorial acknowledged that the "primary"
factor "is the geographical situation of the area to be delimited,i.e.i,s configuration," and
that this includes "theprojection of the relevant coasts-Romania'sReply contains a section
entitled the "Irrelevanceof 'Geographical Factors"'as specialcircumstances.'
6.3. In this Chapter, Ukraine will first deal with Romania'scontention that the "enclosed
nature of the Black Sea" and existing Black Sea delimitation agreements are relevant for
purposes of carrying out the delimitation between Ukraine and Romania (Section 2).
Thereafter, Ukrainewill turn to the relevantcircumstances in the case. These areprimarilythe
geographical factors, including the relevant coasts of the Parties, which demonstrate the
geographical predominanceof Ukraine in the area to be delimited (Section 3). However,they
also include the Stateactivities of the Parties,h, as Ukraine will show, are fundamentally
in contradiction withRomania's delimitation claim (Section4).
I
RM, atp. 191.6.8.
These argumentswere comprehensivelyrebutted in Ukraine's counter-~emorial.~
6.9. With regard to the TurkeyNSSR and TurkeyIBulgaria delimitation agreements,
Ukraine pointed out that Romania'sinterpretation of these treaties to imply a recognition by
third States that Romania enjoyed entitlements to maritime areas up to or beyond certain
points was incorrect. In these treaties, the parties agreed maritimeboundaries up until certain
defined points, but included provisions envisaging an eventual extension of the respective
maritime boundaries at a later, "c~nvenient"'~or "suitable"," time.
6.10. As was stated in Ukraine's Counter-Memorial, these agreementsare only relevant in
that they inform the Court of maritime areasto which third Stateslay claim, thereby enabling
the Court to confine its decision in the present case to areas in which neither Bulgaria nor
Turkey have claims to continental shelf or an EEZ." However, these agreements cannot be
construed as somehow constituting third partyrecognition that Romania'sclaims in this case
arevalid, as Romania has argued.
6.11. As to the correct interpretation of the content of the TurkeytUSSR and
TurkeyBulgaria agreements,it appears fromits Reply that Romaniadoes not take issue with
the analysis presented at paragraphs 8.82-8.87(regarding the Turkey/USSR agreements) and
at paragraphs 8.88-8.94 (regarding the TurkeyIBulgaria agreement) of Ukraine's Counter-
Memorial. In particular, the fact that neither agreement can be construed as an
acknowledgement on the part of the USSR, Turkey or Bulgaria that Romania had a valid
claimup until or beyond any point referenced ineither treaty was notrebutted by Romania.
6.12. Likewise, it appears from Chapter 6, Section D of its Reply that Romania does not
take issue with Ukraine's observation that these agreements only constitute a relevant
circumstance to the extent that the Court should take them into account to ensure that the
delimitation line between Ukraine and Romania does not infringe on areas claimed by
neighbouring States. This general principle wasexpounded in clear terms in the Judgment of
9 See UCM, paras. 4.33-4.50 ("Romania's 'EnclosedSea' Argument") and 8.66-8.99 ("Third State
Delimitations inthe Black Sea").
10 See Article 1of theTurkeyIUSSR agreement onthe continental shelf,UCM, Annex 17,Vol.2.
I I See Articl4(1)of theTurkeylBulgaria agreement,UCM, Annex 18,Vol. 2.
12 UCM, paras. 8.67-8.68,8.95-8.99.the International Court of Justice in Libya-Malta where the Court held that "[tlhe decision of
the Courtmust be confined to the area in which, as the Courthas been informedby Italy, that
State has no claims to continental shelfrights."13
6.13. In the present case, neither Bulgaria nor Turkey have applied to intervene in the
proceedings. However, the Court is informed of the extent of the areas of continental
shelf/EEZ to which either of these two States have laid claim by virtue of the fact that this is
reflected in the respective treaties.
6.14. As to Romania's second argument, namelyits position that the "enclosed nature" of
the Black Sea is a relevant circumstance, Ukraine emphasised in its Counter-Memorial that
there is no legal authority, deriving from the 1982 Convention or otherwise, supporting
Romania's argument that thefact that Romania and Ukraine border an "enclosed sea" within
the meaning of Article 122 of the 1982 Convention constitutes a special or relevant
circumstance for purposes of deciding upon the appropriate method of delimitation in thls
case.14Inparticular, there is no basis for Romania's argument thatthe Court should ignorethe
fact that the relevant coast of Ukraine is substantially longer than that of Romania since,
accordingto Romania, the respectivelengths of the parties'coasts were not taken into account
in the TurkeyNSSR and theTurkeyfBulgariaagreements.
6.15. It is true, as Ukraine pointed out in its Counter-Memorial, that in the course of the
negotiations leading up to the 1982 Convention, Romania made a proposal that the
delimitation of the continental shelfand Exclusive EconomicZones of Statesbordering semi-
enclosed seas should be effected under a separate regime.'' However, theseproposals were
not accepted, and consequently are not reflected in the agreed text of the 1982 Convention.
This fact underscores the absence of a legal basis for Romania's contention thatthe fact that
the Black Seais an enclosed or semi-enclosed sea is relevantto determining the method to be
adopted in the delimitation of Ukraine's and Romania's continental shelf and Exclusive
Economic Zones.
13
Continental Shelf(LibyanArab Jamahiriya/Malta),Judgment, I.C.J. Reports 1985, p. 13, at p.26,
14 para.21.
IS UCM,paras.4.35-4.41.
The proposalmadeby Romaniaandother States on22 June 1977 is recordedat R.Platzoder,Third
UnitedNations Conferenceon theLaw of the Sea,Documents,Dobbs Ferry,NY, Oceana, 1982,Vol.
]V, p. 486. The informalsuggestion madeon1 September1978 is at U.N. DocumentC.2Anfomal
Meeting118/Rev.l.6.16. As discussed in Ukraine's Counter-Memorial,the fallacy of Romania'sargument that
the enclosed nature of the Black Sea is a relevant circumstance is also demonstrated by a
review of the judgments of the Court concerning maritime delimitations between States
bordering onthe Mediterranean Sea, a semi-enclosed sea. As was discussed by Ukraine, and
as is accepted by Romania, the delimitation methods adopted by the Court in the Tunisia-
Libya andLibya-Malta caseswere based on the relevant circumstance existing as between the
parties to those cases.16In neithercase was the semirenclosednature of the Mediterranean Sea
cited as a relevant circumstance determining themethod of delimitation to be adopted, and in
the Libya-Malta case the Court did not feel obliged to utilise the delimitation method
followed by the Court in the Tunisia-Libya case, nordid it feel restricted by methods
employed byother Mediterranean States in their bilateral delimitation agreements in arriving
at its decision.I7
6.17. The fundamental problem with Romania's "enclosed sea" argument is clear if the
purpose of Romania's argument is considered. As noted above, Romania assumes that in
respect of the TurkeyKJSSR and the TurkeyIBulgaria agreements the respective parties'
relevant coastswere disproportionate,but that the difference in lengths of their coasts was not
considered relevant for purposes of the delimitation. This is completely speculative, and
represents no more than another attempt by Romania to develop an argument that the Court
should ignore the geography of the relevant area, andnot take into account the fact that the
length of Ukraine'srelevant coastis some four-timeslonger than that of Romania.
6.18. As will be discussed in the next Section,Romania'sposition runs contrary to accepted
principles of international law on maritime delimitation as articulated in the decisions of this
Court. As Ukraine pointed out in the Counter-Memorial with arguments that remain
essentially unrebutted, Romania is effectively attempting to invoke treaties between third
States in order to subvert Ukraine's entitlements under international law. Aside from the
dubious basis of Romania's supposition that the relevant coasts of TurkeyKJSSR and
16
17 SeeUCM,paras.4.44-4.46.
Forexample,the Agreemenb tetween GreeceandItalyonthedelimitationoftheirZonesof Continental
Shelf signed on 24 May 1977, J.I. Charneyand L.M. Alexander (Ed.), InternationaM l aritime
Boundaries, MartinusNijhoffPublishers,Dordrecht/Boston/London, 1993, Volum11,pp.1598-1600,
and the Agreementbetween Italy and Spain relatinto the Delimitationof the ContinentalShelf
betweenthe Two Countriessigned on 19February1974, in J.I.CharneyandL.M. Alexander(Ed.),
International MaritimeBoundarie1s,93,Volume 11,pp. 1607-1609.TurkeyIBulgaria were disproportionate in the context of the delimitations agreed by those
~tates,'~the legal basis for Romania's argumentthat, on the basis of these two treaties, the
disproportionate lengths of Ukraine's and Romania's relevant coasts should be ignored is
clearly absent.
6.19. From a review of its Reply, it is unclear to what extent Romania maintains its
argument that, due to the enclosed natureof the Black Sea, the alleged failure by third parties
to have taken into account hypothetical disproportionate coastal lengths in the TurkeyNSSR
and the TurkeyIBulgaria agreements should dictate how the delimitation between Romania
and Ukraine shouldbe achieved.
6.20. Having citedtheLibya-Malta judgment to the effect that"[iln a semi-enclosed sea like
the Mediterranean [...lreference to neighbouring States is particularly apposite [...l",
Romania then stated in its Reply that "[tlhis conclusion might not be applicable to all
delimitations to be effected in enclosedor semi-enclosed sea^" .'^the light of this, Romania
appears to acknowledgethat the fact that the Black Sea is an enclosed or semi-enclosed sea is
not per se a relevantcircumstance. As mentioned above,both Parties also appear to agree that
the location of third State claims shouldbe taken into accountonly in order to ensure that the
delimitation line does not inhnge on areas claimed by third States. In an enclosed or semi-
enclosed sea, it is frequently the case that maritime areas appertaining to the littoral States
encroach upon each other. This is the case in the Mediterranean Sea - hence the comment of
the Court in Libya-Malta - but it does not follow that the enclosed nature of the Black Sea in
and of itself is a relevant circumstance whichshould determinethe method of delimitation to
be adopted in this case. It was not a relevant circumstance affecting the method of
delimitation decided by the Court in either the Tunisia-Libyaor Libya-Malta cases, and it is
not a relevant circumstancehere.
I8 Contrary to Romania's implication,the coasts of the USSR and Turkey facing the area delimited in the
1978 Agreement would appear to be of comparable length. Similarly, although Turkey's coast, if
measured up until the border with Georgia, is obviously longerthan that of Bulgaria, it appears that the
relevant coasts of the two Stai.e.the coasts facing the area delimited in the 1997Turkey-Bulgaria
Agreement, are not disproportionate. It is noteworthy that Romania has been unable to point to any
commentaryindicating that there wasa disproportionality of coastal lengths which was ignored.
19 RR,para. 6.45.6.21. In an apparentshift of position,Romania'sReplyintroduces a new argumentunder the
rubric of the "enclosedcharacter of theBlack Sea" to the effectthat, if Serpents' Islandis used
as a basepoint, thiswould not only involve the generation of a "coastal projectionwithout a
coast in support", but that the "east-facing coastline of Romania [would be] caught in a
virtually concaveposition, to its greatdi~advanta~e".~'
6.22. Romaniatherefore argues that Serpents'Island shouldbe ignored as a basepoint since,
otherwise, assuming that a maritime boundary will be agreed with Bulgaria on the basis of
equidistance, asis depicted on Figure RR25 at page 206 of Romania'sReply, Romania would
be unfairly disadvantaged. Recalling the decision of the Court in the North Sea Continental
Shelfcases and of the arbitral tribunal in Guinea/Guinea -Bissau, Romania submits that this
would produce an inequitable result and that this is a further reason why the Court should
accept Romania'sproposed claim line.
6.23. As to this new argument, it should first be noted that Romania relies neither on the
enclosed nature of the Black Sea nor on any delimitations between third States in advancing
its proposition. Romania's focus is rather on the western part of the Black Sea and on a
hypothetical delimitation line between Romania and Bulgaria. Accordingly, this argument
appears to bear little relation to the rest of Romania's arguments contained in Chapter 6,
Section D or to the title of this section ("The Black Sea as an Enclosed Sea and the Existing
Delimitation Agreements in the Black Sea"). Indeed, it is remarkable that Romania bases its
argument on the hypothetical location of a maritime boundary between Romania and a third
State which has never been delimited. The fact that this argument is based in part on the
possible location ofa boundary that has not been delimited (and in respect of which Romania
has filed no evidence as to the status of the negotiations) undermines the relevance of
Romania'sargument.
6.24. Second, there is no concavity in the coast extending from Odessa to Bulgaria. As
discussed in Chapter 3 of Ukraine'sCounter-Memorial, the western coast of the Black Sea
follows a general southwest-northeast direction from the Turkish-Bulgarian border up until a
point near Odessa, and any concavity existing east of Odessa involves coasts that are
P- P
20 RR, para.6.49.exclusively Ukrainian. The geographical characteristics of areas at issue in the cases cited by
Romania were quite different. In both cases,the coasts extendingon either side of the area to
be delimited were characterised by concavity, with the result that the use of the equidistance
method would have resulted in Germany and Guinea being enclaved due to the location of
those States between, respectively, Denmark and The Netherlands, and Guinea-Bissau and
SierraLeone. It was dueto the absence of concavity in the stretchof coastline focussed onby
Romania that Romaniawas obliged to invent a "virtual" coastlinelinking Serpent'sIsland and
Cape Khersones. The fact that Romania has been obliged to rely on a non-existent "virtual"
coastline,again, undermines its argument.
6.25. Obviously, Romania and Ukraine border on the Black Sea,which is enclosed, withthe
result that the projections of the Parties'coasts (along with those of other littoral States,such
as Bulgaria and Turkey) inevitably converge. But this fact, if anything, distinguishes the
present case from the North Sea ContinentalShelf Cases and Guinea/Guinea - Bissau. In
those cases, the parties' coasts projected onto openmaritime areas (the North Sea, where the
United Kingdom's continentalshelf represented the limit of the parties'maritime entitlements,
andthe Atlantic Ocean).This is reflected particularly in the award inGuinea/Guinea -Bissau
wherethe Tribunal noted that "[wlhen in fact -as is the casehere, if Sierra Leone is takeninto
consideration - there are three adjacent States along a concave coastline, the equidistance
method has the other drawback of resulting in the middle countrybeing enclaved by the other
two and thus prevented from extending its maritime territory as far seaward as international
law provides".2' In the Black Sea, no State enjoys a 200 nautical mile. Continental Shelf or
Exclusive Economic Zone, and a degree of converging of maritime areas of the littoral States
is inevitable -all Statesare thus prevented fromextending their maritime areas as far *eaward
asinternational law provides. r -
6.26. Third, and most significantly, it needs to be emphasised that here again Romania
ignores the geography of the relevant area and proceeds on the assumption that the coasts of
Ukraine and Romania facingthe relevant area are of similar lengths. Romania's reliance on
the decisions in the North Sea ContinentalShelf Cases and in Guinea/Guinea - Bissau is
premised on the fiction that the Crimea is in effect an island and that some 630 kilometres of
21 Arbitral Tribunalfor the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau,
Awardof 14 February1985,25 ILM,VolumeXXV,No. 2, p. 295,para.104.Ukrainian coastline which abut the area to be delimited simply do not exist (as depicted on
Figure 3-3 to Ukraine's Counter-Memorial).
6.27. As discussed in Chapter 4, there is a significant disparity between the coastal lengths
of Romania and Ukraine which front the relevant area, and this disparity is the salient
characteristic of the geography of the region. There was no such disparity between the lengths
of the North Sea-facingcoasts of Denmark, Germany andThe Netherlands, nor was there any
such disparitybetween the coasts of Guinea and Guinea -Bissau.
6.28. In the light of this, Romania'sreliance on the North Sea Continental Shelf Cases is
unavailing. In those cases (in which the Court ruled in favourof the application of equitable
principles as opposedto equidistance), the Court stated:
"Equity does not necessarily imply equality. There can never be any question of
completelyrefashioning nature, andequity does not require that a Statewithout access
to the seashould be allotted an area of continentalshelf, anymore thanthere could be
a question of rendering the situation of a State with an extensive coastline similar to
that of a State with a restricted coastline. Equality is to be reckoned within the same
plane, andit is not such natural inequalities as these that equity could remedy. But in
the present case there are three States whose North Sea coastlines are in fact
comparable in length and which, therefore, have been given broadly equal treatment
by nature except that the configuration of one of the coastlines would, if the
equidistance method is used, deny to one of these States treatment equal or
comparableto that given the other
6.29. In the present proceedings, Romaniaattempts to render the situation of a Statewith an
extensive coastline (Ukraine) similar to that of a State with a restricted coastline (Romania).
Romania's submissionsin this respectmust be rejected.
6.30. Finally, it is relevant to recall that this Court, as well asbitral tribunals, have been
unwilling to accept submissions relying on the finding of the tribunal in Guinea/Guinea -
Bissau regarding the concavity of the relevant coastline and the location of third States. For
example, in Cameroon-Nigeria Carneroon contended that "the concavity of the Gulf of
Guinea in general, and of Cameroon'scoastline in particular, creates a virtual enclavement of
22
North SeaContinentalShelf Cases,Judgment, I.C.J.Reports19693 at pp. 49-50,para.91 ~arneroon".~~This argument was rejected since the concavity of Cameroon's coastline was
apparent primarily in the sector where it faced, not the area to be delimited with Nigeria, but
an area which faced a third State, Equatorial ~uinea.~~It was not the Court's task to
compensateCameroon for anyperceived disadvantages sufferedby it due to the geographyof
the areataken as a whole.
6.31. In the 2006 Trinidadand Tobago/Barbadosarbitration, Trinidad and Tobago reliedon
Guinea/Guinea-Bissauin arguing that the delimitations between Trinidad and Tobago and
Venezuela in the south, and between ~rance (Guadeloupe and Martinique) and Dominica in
the north, should be taken intoaccount by the ArbitralTribunal.
6.32. In the Award rendered in thatarbitration, the Tribunal rejected Trinidad and Tobago's
argumentsthat these "regionalconsiderations" should be taken into account. The argument as
to the relevance of the FranceIDominica delimitation agreement was dismissed since "[ilt
[had] noconnection at allto the present dispute, direct or indire~t".~'As regards the Trinidad
and TobagoNenezuela agreement, the Tribunal observed that "[tlhe treaty is quite evidently
res inter alios ncta in respect of Barbados and every other country."26The Tribunal then
added that, since Trinidad and Tobago had agreed on the limit of its area of continental
sheli7EEZin the 1990 Agreement with Venezuela, the Tribunal should take this fact into
account so as not to draw a delimitation line which would attribute to Trinidad and Tobago
areasthat it did not claim.
l 6.33. To summarise, Romania has established no reason why the enclosed nature of the
l
i Black Sea or the delimitation agreements already concluded by Black Sea littoral States
constitute relevant circumstancesin this case or should have any influence on the location of
the maritime boundary between the Parties except insofar as they may indicate how far
seaward the delimitation may extend. The only possible relevance of the TurkeyIUSSR and
Turkey/Bulgaria agreementsis that they inform the Court as to the location of potential third
l
I Stateclaims in the general area.
I 23 Land and Maritime Boundarb yetween Cameroon andNigeria (Cameroonv. Nigeria: Equatorial
I Guineaintervening), JudgmenI t,.C.J.Reports2002, p. 303, atp. 445,para.296.
24 Ibid.,para.297.
I 25 In the Matter of an ArbitrationBetween Barbadosand the Republicof Trinidad,Award of 11 April
I
l 26 2006,451ILM800 (2006),atp. 854, para.344.
I Ibid.,p. 346. -107-
6.34. Regarding Romania'sargument thatit threatens being disadvantaged by thepresumed
location of a hture BulgaridRornania maritimeboundary, this must be dismissed for several
reasons. Romania assumes the future location of this boundary, but has filed no evidence
regarding its negotiations with Bulgaria to justify this assumption. Moreover, the Romanian
argument ignores the geographyof the arearelevantto the delimitationbetween the Partiesto
this case, andis basedon the fiction that hundredsof kilometres ofUkrainian coastline do not
exist.As the Courthas consistentlymaintained,it is not the taskof the Court to invokeequity
torefashion thegeographicalfacts.
Section 3. The Coastal Geography ss a Relevant Circumstance
A. ApplicableLegal Principles
6.35. In considering the role that the coastal geography plays in establishing an equitable
delimitation, it is appropriateto start wita review of a number of basic principles.The first
point is that it is axiomatic, as the Court stated in the TunisidLibc yase, that "[tlhe
geographic correlation between coast and submerged areas off the coast is the basis of the
coastal State'slegaltitle."27It is for thisreasonthat the Courtheld:
"The coast of each of the Parties, therefore, constitutes the starting line from which
one has to set out in order to ascertain how far the submarine areas appertaining to
each of them extend in a seaward direction, as well as in relation to neighbouring
States situatedeither in an adjacentoropposite position."28
6.36. While these statements of principle were made in the context of a case involving
continental shelfdelimitation, theimportance of geographical factors -particularly the coastal
geography of the Statesconcerned - is even more pronounced in situations where the Court is
requested to establish a single maritime boundary as it is here. As the Chamber of the Court
noted in the GuyofMaine case (whichinvolveda single maritimeboundary):
27 ConlineniuShelf(TunisidLibyandrab Jamahiriya),Judgment,I.C.J.Reports1982, p.18,at p.61,
para.73.
28 Ibid.,at p. 61,para.74. "itis, accordingly, towards an application to the present case of criteria more
especially derived fromgeography thatit feelsbound to turn.What is here understood
by geography is of course mainly the geography of coasts, which has prirnasiIy a
physical aspect, towhich may be added, inthe second place, a political aspect."2g
Inthe light of the Court'sjurisprudence, it is astonishing to findthat Romania'sReply
6.37.
takes the position that the "geographical factors" of the case -namely, the geography of the
coasts of the Parties - are irrelevant.Romania's misconceptionof basic legal principlesis
compoundedby the fact that Romaniafundamentally confuses the role that coastal geography
plays - especially in situations where there is large disparity in the lengths of the Parties'
coasts abutting the relevant area - as a relevant circumstance to be taken into account at the
secondstageof the delimitation process after the provisional equidistance line has first been
established, with the application of the p~oportionality testwhich is only employed at the
third stage of the process to test the equitableness of the result obtained horn the first hvo
steps.
6.38. The confusion exhibited by Romania's Reply in this respect is illustrated by the
followingpassage taken fromthe Reply:
"Nordo the respectivelengths of the relevant coasts of the Parties constitute 'relevant
circumstances'. As explained above, proportionality can be taken into account if the
line resulting from the application of the equidistance/spetsialcircumstances principle
results in a situation 'in which the relationship between the length of the relevant
coasts and the maritime areas generated by them by application of the equidistance
method, is so disproportionate that it has been found necessary to take this
circumstance into account to ensure an equitablesofution'. It is appropriate to deal
with proportionality only after having identifiedthe line resultingfrom the application
ofthe qui table principles/specialcircumstances approach. "30
6.39. This line of reasoning runs contrary to the Court's well-established jurisprudence
which has consistently held that a mmked disparity in the lengths of the parties' coasts is a
relevant circumstance justifyng an adjustment of the provisional equidistance line, and that
this step of the delimitation process is separate and distinct hm a consideration of
proportionality,which is an expost facto test.
29 Delimttation offheMaritimeBoundary inthe Gulfof Maine Area, Judgnten IC,.9. Report1984,
p.246,atp.327,para.195.
311 RR,para.6.12(footnotesnot included).6.40. To appreciate the ill-founded nature of Romania'sthesis, reference may first be made
to the Judgment in the Gulf of Mainecase where the Chamber of the Court explained the
position inthe following way:
"The Chamber's views on this subject may be summed up by obseniing that a
maritime delimitation cancertainly not be established by a direct division of the area
in dispute proportional to the respective lengths of the coasts belonging to the parties
in the relevant area, but it is equally certain that a substantial disproportion to the
lengths of those coasts that resulted from a delimitation effected on a different basis
would constitute a circumstance callingfor anappropriate c~rrection."~'
6.41. The Court furtherdistinguished the relationshipbetween differences in coastal lengths
as a relevant circumstance,and the role of coastallengths as part of the proportionality test, in
its Judgment in the Libya/Maltacase. There, the Court differentiated these two aspects of the
delimitation exercise with considerable clarity. With respect to the application of the
proportionality test based onratios between lengths of coasts and areas of continental shelf
attributed tothose coasts,the Court stated thefollowing:
"It has been emphasisedthat this latter operation [application of proportionality] is to
be employed solely as a verification of the equitableness of the result amved at by
other means.
6.42. However, the Court then went on to say that a marked difference in coastal lengths
was also a relevant circumstance to be taken into account independently. As the Court
explained:
"It is however one thing to employ proportionality calculations to check a result; itis
another thing to take note, inthe courseof the delimitation process,of the existenceof
a very marked difference in coastal lengths, and to attribute the appropriate
significance to that coastal relationship, without seeking to define it in quantitative
terms which areonly suited to the expost assessment of relationships of coast to area.
The two operations areneither mutually exclusive, nor so closely identified with each
other that the one would necessarily render the other supererogatory. Considerationof
the comparability or otherwise of the coastal lengths is a part of the process of
determining an equitableboundary on the basis of an initial medianline; the test of a
31 Delimitation of the MaritimeBoundary in the Gulfof Maine Area, Judgment,I.C.J. Reports 1984,
p.246, ap. 323, para.185.
32 ContinentalShelf (LibyanArab JamahiriydMalta), Judgment, I.C.J. Reports1985, p.13, atp. 49,
para.66. reasonabledegree of proportionality,on the other hand,is one which canbe applied to
check the equitablenessof any line, whatever the methodused to arriveat that line."33
6.43. Based on this reasoning, the Court in Libya/Malta adjusted the provisional
equidistance line northwards to take into account as a relevantcircumstance the longer Libyan
coast that abutted the area to be delimited. Given the particular geographic context of that
case, the Courtdid not deem it necessaryto apply the proportionalitytest thereafter.
6.44. A similar approach was adopted by the Court in the Greenland-Jan Mayen case
where, once again,the Court was facedwith a situation wherethere was a markeddisparity in
the length of the coasts of the partieswhich bordered the delimitation area. Thisdifference in
coastal lengths constituted a relevant circumstance calling for a substantial adjustment of the
provisional equidistance line. TheCourtexplained the positionas follows:
"There are however situations - and the present case is one such - in which the
relationship between the length of the relevant coasts and the maritime areas
generated by them by application of the equidistance method, is so
disproportionate that it has been found necessaryto take this circumstance into
accountin order to ensurean equitable solution."34
!
6.45. After noting that, in the Gulf of Maine case, the Chamber considered that a coastal
ratio of 1 to 1.38was suficient to.justify a "correction" of a median line operation,the Court
l in Greenland-JanMayen found that the disparity that existed in that case also constituted a
special circumstance tobe taken into account. In the Court'swords:
"It follows that, in the light of the disparity of coastal lengths, the median line should
be adjusted or shifted in such a way as to effect a delimitation closer to the coast of
Jan ~a~en. "35
6.46. The recent Award in the Barbados-Trinidad and Tobago arbitration is hlly in line
with the Court'sjurisprudence. As theTribunal in that caseobserved:
33 Ibid.
34 Maritime Delimitationin theArea Between GreenlandandJanMayen,Judgment,I.C.J.Reports 1993,
. p. 38,atp. 67,para.65.
35 Ibid.,p. 69,para.69. "The Tribunal finds no difficulty in concluding that coastal frontages are a
circumstance relevant to delimitation and that their relative lengths may require an
adjustmentof the provisional equidistance line."36
6.47. In keeping with the Court'sprecedents, the Tribunal noted that the taking into account
of differences in coastal lengths did not require the drawing of a delimitation line in a
mathematical way determined by exact coastal ratios. Rather, the Tribunal stated that: "The
degree of adjustment called forby any given disparity in coastal lengthsis a matter for the
Tribunal'sjudgment in the light of all the circumstances of the case.")' The Tribunal also
noted the difference that exists between relying on basepoints, which are technically
identifiableandhave a role in the drawing of the provisional equidistance line, and taking into
account coastal frontages which "are not strictly a function of the location of basepoints,
because theinfluence of coastlinesupon delimitation results not fromthe mathematical ratios
discussed above or from their contribution of basepoints to the drawing of an equidistance
line, but from their significance in attaining an equitable and reasonable outcome, whichis a
much broader c~nsideration."~~
6.48. From the foregoing, it is clear that Romania's attempt to deny that differences in
coastal lengths are a relevant circumstance justifying an adjustment of the provisional
equidistance line is misplaced. A material difference in coastal lengths is a relevant
circumstance and, given the facts in this case, this circumstance clearly calls for a shiftingof
the provisionalequidistance linein order to produce anequitable result.
B. The GeographicalPredominance of Ukraine in the RelevantArea
6.49. Ukraine's Counter-Memorial explained in detail the geographical predominance of
Ukraine within and around the relevant area.39This predominance manifests itself in two
main ways.
36
In theMatter of anArbitrationbetween Barbados v.TheRepublic of Trinidad andTobago, Award of
l lApril 2006, 45 ILM 800 (2006), p. 852, para. 327, cithegGulfofMaine, Libya/Malta and Jan
Mayen cases.
37 Ibid.,at p. 852, para. 328.
38 Ibid.,para. 329.
39 UCM, paras. 8.10-8.34.6.50. First, the coast of Ukraine fronts the relevant areaon three sides: on the west from the
terminal point on the land boundary with Romania up to Odessa; on the north from Odessa to
the Karkinits'ka Gulf, and on the east alongthe coast of Crimea as far south as Cape Sarych.
In contrast, Romania's coastonly fronts the relevant area along a short stretch in the west.
Thus, the relevant area is circumscribed primarily by the coasts of Ukraine, which constitute
most of the coast along the gulf-like featurewhich characterizes the northwest region of the
Black Sea.
6.51. Second, the coast of Ukraine fionting the relevant area measures some 1,058
kilometres while the coast of Romania measures only some 258 kilometres. As Ukraine has
pointed out, this represents a difference in coastal lengths in the range of 4.11tin favour of
~kraine.~'
6.52. The Court's jurisprudence referred to in the preceding section makes it clear that
disparities in coastal lengths of this magnitude constitute a relevant circumstance calling for
the adjustment of the provisional equidistanceline. As previously noted, even a much more
modest difference in coastal lengths in the Gulf of Mainecase (where the ratio was in the
order of 1.38 to 1)justified a shifting of the equidistance line in favour of the State with the
longer coast. A fortiori, a coastal difference of over 4 to 1 constitutes a relevant circumstance
also calling for a significant adjustment of the provisional equidistanceline in this case.
6.53. Ukraine recognizes that delimitation is not to be camed out on the basis of strict
mathematical ratios. As the following Chapter will show, Ukraine'sdelimitation line is not
derived from a mathematical division of the relevant area based on coastal ratios.
Nonetheless, the fact remains that there is a marked disparity in the lengths of the Parties'
coasts fionting the area to be delimited, and this circumstance needs to be taken into account
at the second stage of the delimitation process by making an appropriate adjustment to the
provisional equidistanceline.
40 UCM,para. 10.14.6.54. Viewed in this perspective, itbecomes apparent why Romania takes the position that
the geographicalfactors characterizingthe area are irrelevant and that the respective lengths
of the coasts of the Parties do not constitute "relevantircumstance ^ .tf'r Romania to
deny the realityof the coastal geographyand its role in the delimitation process is to deny the
geographic facts as they exist and to disregard the Court's jurisprudence which has
consistentlyheld that significantdifferencesin coastallengths are relevant.
6.55. In Chapter 4 of this Rejoinder, as well as in Chapter 3 of the Counter-Memorial,
Ukraine discussedthe coastal geographyof the Parties.Ukraine does not propose to recanvass
the issue here. In considering the relevance of the geographic facts, however, it is appropriate
to note that Romania appears to lack confidence in its argument that differences in coastal
lengths are irrelevant. Clearly, Romaniais concerned aboutthis aspect of the case, and it is for
this reason that elsewhere in its ReplyRomania has tried to shorten Ukraine'srelevant coast
by eliminating over 600 kilometres of that coast from consideration (the entire south-facing
coast of Ukraine).Why would Romaniaadvance such an argument if it genuinely considered
differencesin coastal lengths tobe irrelevant?
6.56. As explainedin Chapter 4,Romania's attemptto refashion geographyby eliminating a
long stretch ofUkraine'scoast ismisconceived. All of Ukraine'scoast borderingthe area to be
delimited generates maritime entitlements out to 200 nautical miles - in other words,
throughout the relevant area. Given that Ukraine's coast does not face any third State in this
area, and that the maritime entitlements that Ukraine'scoast gives rise to overlap with the
potential entitlementsofRomania,all of Ukraine'scoast is no less relevant to the delimitation
than the coast of Romania. To the extent that there is a marked difference in the coastal
lengths of the Parties in the area - which there clearly is - the principles of maritime
delimitation dictate that such a difference should be treated as a relevant circumstance
justifying a shiftingof the provisionalequidistance line.The way such an adjustment has been
reflected by Ukraine in its delimitationline is discussed inthe next Chapter.
41
RR, para.6.12 C. The Relevance of Serpents' Island for the Delimitation
6.57. In its Memorial, Romania contended that the only relevant circumstance in the case is
the enclosed nature of the Black Sea and thatthere were no relevant circumstances justifjmg
a departure fiom the provisional equidistance line.42 In its Reply, however, Romania has
changed its position and has argued that there are actually two relevant, or "special"
circumstances. One of these is still said to be the enclosed character of the Black Sea. The
other is claimed to be "thepresence, off the coasts of the Parties,of Serpents'~sland."~~
6.58. In the light of this shift of position, it is necessary to discuss the relevance of Serpents'
Islandfor the present case.
6.59. The first point to note is that Romania adopts a decidedly inconsistent posture with
respect to Serpents' Island. Onthe one hand, Romania's Reply cites a number of examples
drawn from judicial precedents and Statepractice tosupport its argument that Serpents' Island
is an insignificant feature which is entitled to no continental shelf or Exclusive Economic
Zone, only a 12-milebelt of territorial sea. On the other hand, and in addition to the extensive
discussion about Serpents' Island contained inRomania's Memorial, the Reply devotes an
entire chapter (Chapter 5) and an Addendum to an analysis of the island's history and status.
Suffice is to note that, for such an allegedly "insignificant" island, an enormous amount of
historical source material devoted to the Island exists and has been referred to by the Parties.
Whatever its size, Serpents'Islandhas commanded considerable attention throughouthistory.
6.60. Notwithstanding this, it is important to place Serpents' Island in its proper context
within the overall fi-ameworkof the case. Despite Romania'sattempt to convey the impression
that the disputeis aboutthe effect tobe givento Serpents'Island, this is simply not the case.
6.61. The delimitation that the Court is requested to effectuate is not between Romania and
Serpents' Island; it is between Romania and Ukraine. The area subject to delimitation is
circumscribed by the mainland coasts of the Parties. Serpents'Island is a geographical fact -
and a significant one - but it is only part of the overall geophysical context of the case, the
42 RM, para.11.84.
43 RR, para.6.16.principal characteristic of which is the predominance of Ukraine in terms of the relevant
coastal geography.
6.62. The role ofislands in maritime delirnitatfon is not subjectto predetermined rules. The
effect of an island for delimitation purposes depends on a number of different elements
including: (i) the size and importance of the island; (ii) the location of the island; and (iii) its
relationship with the other geographic factorscharacterizing the area to be delimited.44
6.63. While Serpents'Island is not a large island, it is most certainly an important one as
attested by the considerableattention it has historically received and the uses to which ithas
been put. It is not,as Romaniaseeksto imply, a mere "rockyprotuberance"45or "ahome only
forgods and serpents".46
6.64. Apartfromthis, it is necessary to consider Serpents' Island in the lightof its location
and relationship withthe relevant mainlandcoasts. Serpents'Island is not an isolatedisland in
the middle of the sea. It is a coastal islandin proximity to themainland coast of Ukraine.This
is evidencedby the fact that the territorial sea of Ukraine'smainland coast andihe territorial
sea around Serpents'Islandmeet and overlap.
6.65. Just because Serpents'Island provides one set of basepoints for the construction of the
provisional equidistance line does not mean that it is the "advanceguard" of Ukraine's
mainland coast (as Romaniaasserts) any more than Sulina Dyke isthe "advanceguard"for
Romania's coast. Romania admits as much when it states that the fact that a provisional
equidistance line is constructed from certain basepoints does not mean that the restof the
coast is irrelevant, InRomania's words:
44
In respect to Statepractice, Ukrainerefers back to the discussion inits Counter-Memorial, at
paras.4.51-4.68.En itslengthyAddendum to Chapter 6 ofitsReply, Romania appears toaccept that
each example of Statepractice must belooked atin itsown (political and geographiccircumstances,
and for this reason Romania attempts to distinguish &hecounter-examples citedby Ukraine in the
Counter-Memorial. It istriking thathe number of agreementsrelieonby Romania was reduced &om
17 listed inits Memorial (paras8.106-8.121)to 8 statedinitsReply to be "most relevant"(footnote
508 to para.6.35).It is also noteworthy thatRomania omittedtocomment on theexamples ofState
practicecitedby Ukraine where the length ofthe parties'coastswas an important factor(seeUCM,
45 paras.4.64-4.67).
4b RR, para.5.42.
Ibid.,para.5.7.l
"Othenvise the existence of minor coastal projections and promontories could
determine, in an arbitraryway,wholecoastallengths."47
6.66. As part of the relevant coastal geography, Serpents' Island has a baseline which
generatesbasepoints for the construction of the provisional equidistance line. In this manner,
Serpents' IsIand is given effect in the delimitation exercise. But this is not the end of the
process since the substantial disparity in the length of the Parties' mainland coasts still
remains to be taken into account as a relevant circumstance. As Ukraine will discuss in
Chapter 7, Ukraine's delimitation linereflects a balancing of these two factors which accords
each its appropriate weighting.
6.67. Havingplaced in context the role that Serpents'IsIand plays in the delimitation, it is
necessary for the sake of completeness to respond to a number of' contentions Romania
advancesinits Reply with respect tothe status ofthe island.
6.68. Romania'sReply relies on selected extracts from the extensiveevidence submitted by
Ukraine in an attempt to show that Serpents1Islandis an inhospitable formation, that it is
devoid of flora and fauna, and that it was never inhabited by a stablepopulation. Serpents'
Island'sundeniable strategic significance and historicalimportance aredismissed by Romania
1 as irrelevant,and the legislativemeasures enactedby Ukraine to foster the Island's economic
development are rejected as being "aimed at artificially changing the character of Serpents'
~slmd''.~"
6.69. Notwithstanding Romania'sarguments, the documentary and photographic evidence
demonstrates that:(i) regardless of itssmall size, Serpents'Island isanisland not a rock; (ii)
the Island has sustained throughout the centuries, and continues to sustain, humanhabitation
and (iii) Serpents' Island is fully capable of having an economic life of its own, The
photographs already produced in Ukraine's Counter-Memorial (md reproduced opposite
page76 of this Rejoinder), clearly show Serpents1Island'sphysical characteristics andthe
facilities thathavebeen establishedon it.
47
RR, para. 3.65A.nd, see, ithis connectionthe reasoning otheArbitralTribunalinthe Barbados-
Trinidadand Tobago casereferredtoinpara.6.47above.
48 RR,para. 5.107. A commissioner and a garrison were sent to the Island by Russian authorities
(3)
and resided on the Islandhorn 1841,afterRussia" defeat in the Crimean War
and the subsequent transfer of the Island to the Ottoman ~rn~ire.'~It is also
reported that during the Crimean War the Island hosted a meeting of theAllies
that took place before the siegeof ~ebasto~ol.'~
(4) During World War I, Serpents'Islandwas occupiedby Russian soldiers.55
(5) In the period between the two WorldWars, when the Island was under
Romanian rule, according to Romaniansources, 8 people resided permanently
on the ~s~and.~ D~uring this period,Romania plannedto build a complex on the
island, which included a hospital, a chapel,a small monastery and a lifeguard
station. Thisproject was eventuallynot carried out dueto the startof the war.57
6 During WorldWar 11, the Island was occupied by German sol die^-s;~"
(7) Air Defence troops of the USSR were permanently stationed on Serpents'
island from 1946 untilUkraine'sindependence in 1991
(S) Since Ukraine"independence, the Ukrainian Government has implemented a
programme of demilitarisation and development of Serpents' Island in
conformity with the 1997 Exchange of Letters. The replacement of military
facilitieswith civilianfacilities hasmeant that theIsland presently has a small
civilian population, which includesmembers of ahydro-meteorological centre,
various construction workers, the personnel of a fiontier observation post,
medical staff andpersonnel ofthe Aval bankbranch.
53 Ibid.,p.410.
54 S.B.Okhotnikov, A.S. Ostroverkhov,"ZmiinyiIsland:the Problems of Research and Protection",
Protection and Research of(he MonurnenFsofArchaeology in Odesa Oblust (Province),Issue 1,
AstroPrinOdesa, 1999,p.26,Annex 5,Vol. 2.
55 SeediscussionatUCM, pm. 7.62and the authoritcitedtherein.
56
57 R.I.Calinescu, InsuSerpiloSchitarnonografica, Cemast1931,pp. 47-49, RM, AnnexRh46.
58 P. DogaruZmiinyiIslandon the wayofShurks,Bucharest1996,p. 69UCM, hnex 6 1,Vol. 4.
59 SeeUCM, para. 7.67.
UCM,para.7.68.6.72. These are not insignificant activities,andthey totally undermine Romania'scontention
that Serpents' Island isa mere rock within the meaningof Article 121,paragraph 3 of the Law
of the SeaConvention.
Section4. The Parties'Oil and Gas andFisherySurveillance Activities
6.73. In Ukraine's Counter-Memorial, Ukrainedemonstrated that the conduct of the Parties
in awarding rights in respect of oil and gas deposits supports Ukraine's position, and
undermines that of Romania, regarding the extent of the Parties' respective maritime
entitlements in the relevant area.60 Ukraine further demonstrated that the Parties have
developeda settled practice whereby it has been Ukraine, and not Romania, that has assumed
responsibility for the surveillance of illegal fishing in the part of the Black Sea which is
disputed in these proceedings. As Ukraine explained, Ukraine has devoted resources to
patrolling this area, and Ukraine has intercepted vessels from third States caught illegally
fishing6' Romania has never taken,any initiative to carry out similar surveillance operations
in this area(which it now claims to be Romanian);nor has it offered to assist Ukraine in these
operations. Moreover, Romaniahas not objected to Ukraine's surveillance activities in this
zone.
6.74. In Ukraine's submission, these circumstances reflect a prevailing understanding
regarding the extent of the Parties' continental shelf andEEZ entitlements in the Black Sea.
Despite Romania's protestations tothe contrary, Romania has provided no evidence that it
ever considered itself to be entitled to hydrocarbons located beyond the outer limit of the
Pelican l IstriaI Midia / Neptun blocks. Romaniahas not alleged that prior to June 2001 it
everprotested Ukraine'soil andgas activities in areasnow claimed by Romania, and Romania
has never expressed any objection regarding the factthat it is Ukraine that has assumed the
responsibility of patrolling much of the disputed area in order to prevent illegal fishing by
vessels from third States. These circumstances areclearly relevant and should be taken into
account by the Court in delimiting the boundary between the Parties'continental shelf and
ExclusiveEconomic Zones.
UCM, paras.8.43-8.57
61 Ibid., paras. 8.58-8.65.6.75. Romania has alsogivenno explanation for its inactivity and silence vis-a-vis Ukraine's
activities. Rather, it has restricted itself primarily to legal argument and limited attempts to
pick holes in the evidence filed by Ukraine. In this Section, Ukraine will respond to
Romania'sarguments, dealing first with the "general considerations" invoked by Romania to
try to limit the relevance of State activities (Section A), before turning to a rebuttal of points
made regarding the oil and gas concessions (Section B) and the fishery surveillance activities
(SectionC).
A. General Considerations
6.76. In its Reply, Romania first attempts to minimise the relevance of State activities, such
as the location of oil concessions, as a matter of law. To this end, Romania relies on the fact
that the Tunisia/Libya case is the only case in which the Court expressly acknowledged that
the location of the parties' oil concessions had an influence on the location of a maritime
boundary.62
6.77. The fact that in the relatively few maritime delimitation cases since decided the Court
has not found the evidence of the location of oil concessions and surrounding circumstances
to be sufficient to influence the location of a maritime boundary does not detract from the
significanceof the Judgment of the Court in the Tunisia/Libya case. In that case, the Court
established the principle that the location of oil and gas concessions and the respect by the
States concerned of a modus vivendi represented relevant circumstances to be taken into
accountin the determination of an equitable maritimeboundary.
6.78. As a matter of principle, there is no restriction on the type of circumstances that the
Court may consider to be relevant in order to ensure that an equitable solution is achieved.63
In the present case, it is notable that in awarding oil and gas concessions Romania has
respected the outer limit of the Pelican / Istria / Midia / Neptun blocks, which lies far to the
south-west of the claim line advanced by Romania in these proceedings.64It is also notable
62 RR, paras. 7.3-7.7.
63 See, for example, North SeoContinentalShelf,Judgment,I.C.J. Reports 1969,p. 3, at p. 51, para. 93:
"[...there is no legal limit to the considerations which States may take account of for the purpose of
making sure that they applyequitable procedur..l".
64 The location of these blocks is depicted on Figures 8-7 and 8-8 of Ukraine'sCounter-Memorial, and
(shadedgreen) in Figure-2,after p. 130,below.that,as Romaniaacknowledged in itsReplyp ,rior to 2001 Romania never protested Ukraine's
oil and gas activities in areas now claimed by Romania. Moreover, as will be seen, it is
Ukraine which has taken responsibility for surveillance of fishing activities in areas that
Romania now claims to appertain to it.It would be inequitable for the Court now to decide
that such areas,in respect of which Romania has neverassumed theresponsibilitieswhich one
would expect from a State purporting to possess sovereign rights, in fact appertain to
Romania.
B. Licences Grantedfor the Explorationof Oil and Gas
6.79. As for the practice of the Parties in awarding licences for the exploration and
exploitation of hydrocarbons in the area of overlapping claims, Romania denies in general
that the facts pleaded are such that they should be taken into account by the ~0u1-t.~'In
particular, Romania makes the following arguments: (i)Paragraph 4(f) of the 1997 Exchange
of Letters "excludes any potential effect of exploration and exploitation activities in the
relevant area";66(ii) the area covered by the concessions awarded by Ukraine does not
encompass the entire area now claimed by ~kraine;~~ (iiiUkraine's licensing practice has
developed relatively recently;68(ivj Ukraine'sactivities have been protested by Romania
through diplomatic channels;69and (v) Romania has carried out substantial oil andgas
activities." Thesearguments arerebutted below in turn.
6.80. As to the significance of Paragraph 410 of the 1997 Exchange of Letters,there is no
dispute that theParties agreed in that instrumentto refrainfrom the "exploitationt1of mineral
resources locatedin the area disputed by the Parties.However, there is no mention of the
"exploration" for mineral resourcesin the agreement. As such, both Parties were free to
continuetheir preexisting exploration activities in areas to which they considered themselves
to be entitled,and Romania is incorrect to state that Paragraph 4(f) of the 1997 Exchange of
Letters "excludesany potential effectof exploration [...]activitiesin the relevant area"."
65
66 RR, para7.7.
Ibid.,para7.8-7.9.Romania referto thiagreement (exhibitedaUCM, Annex l, Vol.1)as the1997
67 Additional greement.
58 RR, para7.12.
Ibid.para.7.13.
64 Ibid.,paras.7.2etseq.
10 Ibid.paras.7.32etseq.
71 Ibid.,par7.9. -122 -
6.8 1. Ukraine's practice inawardinglicences for the exploration and exploitation of oil and
gas in the relevant area is described atparagraphs 8.43to8.57 of the Counter-Memorial. As is
clear from that discussion, consistent with the obligations assumedby the Partiesin the 1997
Exchange of Letters, no exploitation of hydrocarbonshas taken place under the authority of
the Ukrainian State authorities since1997. However,since(as before) 1 997, it is Ukraineand
not Romania which has been active in the exploration for hydrocarbon deposits in the area
lying to the north and east of the outerlimit of the RomanianPelican / Istri /Midia /Neplun
blocks.
6.82. As for Romania'sargument that there is significance in the fact that Ukrainehas not
licensed petroleum activities in the entire areaextending up to Ukraine'sclaim line, the fact
that Ukraine has only issued licencesin respect of three areasis entirely irrelevant.There is
no obligation for a State to issue licencesin respectofall its maritime areas, and it would he
premature and commercially unreasonable for a State to take any steps to licence areas that
have yet to be identified as prospective. As such, no inferences can be drawn from the fact
that Ukraine has not awarded licences in respectof all areas extending up untilits claim line.
The fact is that Ukraine hasbeen activein areas that Romanianow claims and,at least prior to
2001, Ukraine'sactivities were not protestedby Romania.
6.83. RegardingRomania's argument that "the Ukrainian licensing practice has developed
only very recently, well after the critical dat- 1997", thisis incorrect.72As Romania itself
states in itsReply: "The DeIphin block was licensed before the entry into force ofthe 1997
Additional ~~reernent,"~~It is noteworthy that Ukraine'sactivities reIating to the DeEphira
block were never protestedby Romania.
6.84. Romania presents in its Reply a description of the Delphira bIock which is
Ukraine described the details of the LicenceAgreement entered into in 1993
with the CrimeanPetroleum Company at paragraphs 8.44 to 8.46 of the Counter-Memorial.
72 Ibidp.,ra7.13.
73 Ibidp.,ra7.19.
74 Ibid.paras.7.19-7.20.The coordinates of the licence area are stated in Exhibit B to the Licence ~~reement,~'and
the licencearea is depicted on Figure 8-7 (facing page 214 of the Counter-Memorial).
6.85. Contrary to what Romania states in its Reply, there was no attempt by Ukraine to
establish that the licence area extended further to the west of the area defined by those
coordinates.The licence area, the coordinates of which are stated in Exhibit of the Licence
Agreement, iscorrectly depicted on Figure 8-7, and it canbe clearly seen that the licence area
extends significantlyinto areasnow claimed by Romania.As Ukraine statedin footnote 44 of
the Counter-Memorial, "the adjacent area to the west (the 'AlternateArea') wasto be granted
to CPC in the event of the boundary issue being resolved in Ukraine's favour".This is a larger
area, the coordinates of which are stated in Exhibit C to the Licence Agreement, and appears
to be depicted as the shaded zone extending to the north and west of the licence area on the
Petroconsultants map reproduced as Figure 8-8 facing page 216 of Ukraine's Counter-
Memorial. Ukraine's description of thisLicence Agreement in the Counter-Memorial is in all
respects correct.
6.86. Regarding Romania's argument that "Romania consistently objected to Ukrainian
hydrocarbon activity"76,Romania does not even allege that it protested either the Licence
Agreement or any activities carried out pursuant to that Agreement in the Delphin block.
Rather, the history of diplomatic correspondence discussedby Romania commences with a
communication sent in 2001 apparently relating to the Olympiiska block, and concerns the
question whether the activities carried out by Ukraine were incompatible with Ukraine's
obligations under the 1977 Exchange of Letters. Romania is accordingly misleading'when it
states that it "consistently" objectedto Ukraine's oiland gasi~ities.~~
6.87. With respect to the diplomatic correspondence discussed by Romania at paragraphs
7.22 to 7.30 of its Reply, Romania'saccount is one-sided and in certain respects misleading.
For the record, it is necessary to recall that Ukraine has at all times respected the 1997
Exchange of Letters.Thus, Ukraine responded to Romania'sDiplomatic Note No. C231253316
75 UCM, hex 97, Vol. 5. As Romania correctly states,the coordinatesof the licence area are:
44"30100"N, 31°30'00E (PointA);44°30'00"N, 31°00'00E (PointB); 45°00'00"N, 3l000'00E
(PointC);and45°00'00"N, 31°30'0E"(PointD).
76 RR, paras.7.21-7.30.
77 Ibid.,para.7.21.June 2001, cited at paragraph 7.22 of Romania's on 9 July 2001 with Diplomatic
NoteNo. 42512~-112-1804,stating:
"Chornomorna~ogaz performs the drilling of a parametric well near to [Zmiinyi]
Island for the purpose of research of the seabed geological structure. Such operations
do not come within the definition of the 'exploitationof mineral resources' as usedin
paragraph 4.0 of the Additional Agreement [..
6.88. Similarly, as Romania acknowledges at paragraph 7.24 of its Reply, the activities of
the Iskatel, referenced in Romania's Diplomatic Notes No. DVI-116784 dated 15December
2003 (Exhibit RR 31) and No. EVI-112850dated l l May 2004 (Exhibit RR 32), concerned
geophysical exploration and by definition were not inconsistent with the 1997 Exchange of
Letters.
6.89. Regarding Romania's Diplomatic NotesNo. EVI-116352dated 21 October 2004 and
No. EVI-1-6503 dated 2 November 2004 cited at paragraphs 7.26 and 7.27 of Romania's
Reply, which refer to the fact that Romania had apparently learnt from public sources that
Ukraine had issued concessions for the exploitation of areas to the south of Serpents'Island,
Ukraine responded in Diplomatic Note No. 72123-482-6629 dated14December 2004.'~In its
response, Ukraine statedthat it had no knowledge of the concessions referred to by Romania,
but noted that Ukraine had acquired informationthat Romania itself had granted exploitation
concessions to blocks extending into areas claimed by Ukraine (notably the Neptun block,
indicated on Figure 8-7to Ukraine'sCounter-Memorial),whichUkraine duly protested.8'
6.90. Similarly, Ukraine responded to the Diplomatic Notesreceived from Romania in 2006
to confirm that the acts complained of by Romania had takenplace outside the disputed zone
andlor were consistent with Paragraph4(f) of the 1997 Exchangeof ~etters.'~
71
This DiplomaticNote was recalled in Romania'ssubsequent Note (No. C2313342)dated 2 July 2001,
79 referred to RR, para. 7.23.
SO Annex 7,Vol.2.
81 Annex 8, Vol.2.
Ukraine also objectedto rights apparently awardedto a Frenchcompanyby A.T. PetrolMedia. See also
Diplomatic Note No. 72122-480-1056 dated 7April 2005, which responded to Romania'sDiplomatic
82 Note EVI-117242dated 27 December2004, acopy of which isat Annex9, Vol. 2.
See, for example,Diplomatic Note No. 72123-482-4667dated 15June 2006, Annex 10, Vol.2, which
responded to Romania'sDiplomatic NoteNo. H211607dated 22May 2006, and DiplomaticNote No.
72122-482-5403dated 16 August 2006, Annex 11, Vol. 2, whichresponded to Romania'sDiplomatic
Note No. H212457dated 14August 2006.6.91. In the light of the above, itbecomes clearthat Romania's protests regardingUkraine's
oil and gas activities have not, contrary to Romania'sassertion, been consistent, but rather
appear to have commenced only in 2001 and relate primarily to Romania's concern that
Ukraine respectthe obligationsundertakenin the 1997Exchange of Letters.
6.92. Finally, it is necessary to comment on Romania'sbrief review of its own oil and gas
activities. This part of Romania's Replyis characterisedby an absenceof evidentiary support.
Other than by reproducing one undated and unreferenced page allegedly indicating the
location certain seismic survey work (Figure ~~26):~ and three unsourced and equally
ambiguous depictions of "seismic lines",84Romania has filed no evidence regarding its oil
and gas activitiesin the Black Seawhatsoever.
6.93. At paragraph 7.33 of its Reply,Romania states thatthe concessions depicted on Figure
8-7 of Ukraine's Counter-Memorial"representonly a minor part of the activitiesperformed by
Romania in the delimitation area", and at paragraph 7.34Romania states that these activities
date back to the 1960's. Butno evidence in support of these statements is provided by
Romania. Indeed,Romania'scontentions are difficult to reconcile with the publicly available
data compiled by~etroconsultants,~~ an authoritative and independent petroleum consultancy,
which indicatesthat Romania has respected a limit toits maritime entitlements represented by
the outer limit of the Pelican, Istria, Midia and Neptun blocks which falls well to the
southwest of itspresent claim line.
6.94. It is curious that Romania states in its Reply that it awarded to British and French
companies rightsto the Pelican, Istria, Midia and Neptunblocks before it had been informed
of the continental shelf and Exclusive Economic Zone limits claimed by ~kraine.~~ If
Romania had not been notified of Ukraine's (or the USSR's) claim line, then the only
plausible reason why Romania respected this limit was because Romania lacked confidence
83
A modifiedversion isatFigureRR27.The legendof thisdocument refersto "explorationwells drilled
by Romania" and"seismicprofilescarriedoutbyRomania"N . o evidencethatsuchdrills/profileswere
carried outby Romaniahasbeenfiled, and theassertionthattheserills/profileswere camed out by
84 . Romaniaas opposedby anindependenctompanyactingunderlicenceis whollyunsupported.
RR, Annex39.
85 See UCM, Figure 8-8 facing page 216. See also the Petroconsultantsmap reproducedwith A.G.
Kobinson(ed.),RegionalandPetroleumGeologyof theBlackSea and SurroundingRegion, American
Associationof PetroleumGeologists,1997,M, Annex100,Vol. 2.
86 RR,paras.7.35-7.36.that it possessed rights to the continental shelf or Exclusive Economic Zone beyond the limit
ofthe blocks granted tothese companies.
6.95. Thus, to the extent that Romania asserts that its conduct regarding oil and gas
activities "is characterised by uniformity, continuity and constancy",87such conduct has not
respected the claim line advanced by Romania in these proceedings, but rather relates to a
much less ambitiouslimit to its continentalshelf and ExclusiveEconon~icZone entitlements.
6.96. The following points in respect of the Parties' oiland gas activities can be made by
way of conclusion:
(i) Ukraine has consistently licensed the exploration of maritime areas falling
within the areas of continental shelf7Exclusive Economic Zone claimed by
Ukraine.
(ii) The areas licensed include the Olympiiska, the Gubkina and the Delphin
blocks. These have been illustrated on Figure 8-7 to Ukraine's Counter-
Memorial.
(iii) Regarding Romania's objectionsto Ukraine's oil andgas activities, Romania's
protests only commenced in June 2001, some four years after the 1997
Exchange of Letters, and Romania never protested Ukraine's activities in
respectof the Delphin block.
(iv) Romania's practice in licensing oil and gas activities, which is based on
information derived from independent, publicly available sources, appears to
reflect Romania's understandingof the location of the limit of its continental
shelf/EEZ entitlement. Romania alleges that it awarded rights to areas
extending only to the limit of the Pelican, Istria, Midia and Neptun blocks
beforeit had been notifiedof Ukraine's claim line.
87 Ibid .,ra7.37. To the extent Romania allegesthat it has performed activities beyond this self-
(v)
imposedlimit, Romania has failedto file anysupporting evidence.
C. Surveillance of Illegal Fishing
6.97. The second aspectof State activitiesconcerns the fact that ithas been the CoastGuard
of Ukraine, not Romania, which has policed the relevant area for the presence of vessels
carrying out illegal fishing, and that Romania has never questioned the fact that these
surveillance activitieshave been Ukraine'sresponsibility.
6.98. This issue was addressed at paragraphs 8.58 to 8.65 of Ukraine's Counter-Memorial.
Romania'streatmentof Ukraine'sactivitiesis at paragraphs 7.40to 7.60 of its Reply.This part
of Romania'sReply is extremely defensive, is again supportedby no evidence, and attempts
to confuse the issue by mischaracterising Ukraine's argument as one based on access to
fishery resources.
6.99. As Ukraine discussed in its Counter-Memorial, in 1995Ukraine notified Romania of a
provisional line following the coordinates: 45"05'5"N, 30°01'O"E;44"54'0"N, 30°06'O"E;
43"42'6'N,31°27'8"E;43"27'OVN3 , 1°20'8"E.Ukraine has consistently assumed responsibility
for the surveillance of fishing in the area lying to the north and east of this line, and the
Ukrainian Coast Guard has on numerous occasions intercepted fishing vessels from third
States caught fishingillegally in the areabordered by this line.
6.100. It is significant that Romania has never indicated that it is Romania and not Ukraine
which is responsible forthe surveillance of these waters. Until very recently, Romania never
lodged any diplomatic protests regarding the activities Ukraine has been performing in this
area, and has never offered to co-operate with Ukraine in the surveillance of these waters.
Furthermore, it appearsthat Romania has abstained from licensing Romanian fishing vessels
from fishing in the area to the Ukrainian side of the interim line:prior to 28 April 2006, no
Romanian fishing vesselshad everbeen detectedin this area."
88 See Ukraine'sDiplomatic Note No. 72122-482-4469dated 31 May 2006, Annex 12, Vol. 2. Romania
did not deny that Romanian fishing vessels had not previously fished inarea iitsdiplomatic
responsedated4July 2006,RR, Annex 37.6.101. These circumstances, when viewed alongside the Parties' oil and gas activities,
evidence Romania's understanding asto the limit of its maritime entitlements in the northwest
Black Sea. Giventhat it has been Ukrainethat has undertakenthe responsibility -and expense
- of patrolling this area, and that Romanianever objected in any way, Ukraine submits that
this represents a relevant circumstanceto be taken into accountby the Court in delimiting the
Parties'maritime boundary.
6.102. In its Reply, Romania has advancedthe following argumentsin an attempt to deny the
relevance of Ukraine's fisheries surveillance activities: (i) the Ukrainian claims have never
been rec~gnised;~~ (ii) "Ukraine'slimited practice does not sustain any defacto line";g0(iii)
Ukraine's practice relating to fisheries (as opposed to fisheries surveillance) can be
distinguished from situations regarded as relevant by the Court and arbitral tribunal^ ;n'
(iv) the Parties'dependence on Black Sea fisheries is in anyevent limited.g2
6.103. As to Romania's first argument, it is of course true that Romania has not formally
recognised the line communicated by Ukraine in 1995 discussed above.93But Ukraine has
never suggested the contrary. Equally, Romania is wrong to suppose that Ukraine had
suggested that Romania is somehow bound by third State recognition of the location of the
maritime boundary. It is clear from the Court's Judgmentin Tunisia/Lib (inapassages not
cited by Romania) that the absence of recognition by a third State of the location of the
maritime boundarybetween two other Statesdoes not precludethe relevance of a defacto line
as a relevant circumstance inthe delimitationof a maritimeboundary.
6.104. The purpose of the review of the diplomatic exchanges and press releases at
paragraph 8.64 of Ukraine's Counter-Memorialwas to evidence the fact that, on numerous
occasions, the Ukrainian State Border Guardhas interceptedfishing vessels from third States
caught fishing illegally in areas lyingto the north and eastof the line the coordinates of which
89'
90 RR,paras.7.41-7.48.
91 Ibidp.,ras.7.49-7.51.
92 Ibidp.,ras.7.52-7.59
93 Ibidp.,ra.7.60.
See para.6.99. were communicatedby Ukraine to Romania inits Diplomatic Note dated 7November 1995y
andthat Ukraine had protestedthese incidentsthrough theappropriatediplomatic channel^.^'
I 6,105. The interceptions of third State fishingvessels recorded in the Diplomatic Notes filed
with Ukraine'sCounter-Memorial by no means represent all the incidents that have taken
place. With this Rejoinder, Ukraine has filed witness statements prepared and signed by
severalmembers of the Ukrainian Coast Guardwho were involvedin the regular patrollingof
the areanow claimedbyRomania, and in intercepting vessels fromthird States caughtfishing
l
illegally in these waters.Thesestatements provideample support for thefact that it Ukraine
whichhas consistently assumedpolicing responsibilities in the area.For example:
l
(1) Annex 13 is the statement of Andriy Ivanovych BAZAN, the deputy
commanderof the Sevastopol Coast Guard who was involved in incidents in
1998 and 2000 in which Turkishfishing vessels werelocated and intercepted;
(2) Annex 14 is the statement of AndriyVitaliyovychKORMICH, commanderof
the Ukrainian Coast Guard ship the Hryg~ry Hnatenko. He confirms that the
UkrainianCoast Guard carriedout regular patrols in thenorthwest part of the
Black Sea and refers to incidentsthat took place in 2002 and 2003 involving
Bulgaria11 andTurkish fishingvessels;
(3) Annex 15 is the statement of Borys Antonovych SHEVCHENKO, who has
served in various positions in the Ukrainian State Border Guard. We refersto
the factthat the Odessa Border Guard regularly patrolled Ukraine's EEZ, and
that during theperiod 1991 to 2004 approximately 20Turkish and 7 Bulgarian
vessels weredetained having been caught fishing illegally inthe disputedarea;
(4) Annex 16is the statement of Timur Albertovych TSYMBULOV, a firstdeputy
commanderof the Odessa Border Guard who has been involved in patrolling
the relevant area since 1994.He recounts several incidents in which Turkish
44 SeeUCM,para. 8.60.
9s The questionof whether ornotDiplomatic Note No. 72122-446-1134 dated13May 2002 (UCM,
Annex 109,Vol. 5was ever delivered is irrelevant since itdetractfromthefactthatthe note
provides reliacontemporaneousev~dencethathisincidcndescribetook place. and Bulgarian fishing vessels were intercepted while fishing ilIegally in 1
Ukraine'sEEZ;
(5) Annex 17 isthe statement of Serhiy MykhajlovychRYZHYK, a commander
of the Odessa Coast Guard,who refers to severalfurther incidents involving
Bulgarian and Turkish fishing vessels;
(6) Annex 18 is the statement of Gennadiy Mykolaiovych ROSOLOVSKY, also a
l
commander of the Odessa Coast Guard. His statement recounts various
incidents that took place i2001 and 2002;
Annex I9 is the statement of Ihor Volodymyrovych ZAPYANTSEV,who has
(7)
been on active duty with the Odessa Coast Guard since 2002. He refers to
incidents thattook placein 2003 and, very recently, in 2007.
6.106. The location of the incidents referred to in these statements have been pIottedon
Figure 6-1, opposite.'6The location of the incidents where third Party fishing vessels have
been interceptedby the UkrainianCoast Guard,juxtaposedon the location of thehydrocarbon
blocks granted by the Partiesis depicted on Figure 6-2.97The stateme~~ts establish that it has
been the Ukrainian Coast Guard which has regularly patrolledmaritime areas whichUkraine
has consistently regarded as belonging to Ukraine. In contrast, as the membersof the
Ukrainian Coast Guardconfirm in theirstatements, no Romanian coast guard ships, or any
other ships authorizedby Romania to perform policing functions, have ever been encountered
in this area.
6.107. In this regard,it is strikingthat this section of Ukraine's Counter-Memorial prompted
the RomanianEmbassy in Ankm on 16 November 2006 to send a DiplomaticNote tothe
Turkish Ministry of Foreign Affairsseeking comfort that Turkey had not endorsed the
delimitation line claimed by ~kraine.~'Despite thefactthatthe Ukrainian Ministryof Foreign
Affairs had issued press releases giving details of various incidents whereby third State
95 Theincidentplottedon Figur6-1 have been numbereand can becross-referredthestatements by
referenctothetablfiIedashex 20,Vol. 2, whichliststheindividualincidents.
97 The CoastGuard incidentdepicted on Figure 6includethose evidenced inthe DiplomaticNotes,
discussednUkraine'Counter-Memorialn,ot all of whichare recordthe statements.
98 RR, hex 40.BL A6K SEA 25 93IMI
!-Lks-7l
1:3rawm ThePar~Ji,es"O afnld Gas
and FisheriesSunveillanceAc~vifies - 131 -
fishingvessels had been caught illegally fishingin maritime areas thatRomania now claims,
it is remarkable that Romania never made any diplomatic intervention beforehandVg9 it is
furthermore remarkablethat,whereas Romania was quick to contact the Turkish Ministry of
Foreign Affairs, Romania did not notify the relevant Ukrainian authorities to challenge
Ukraine's authorityto patrol areas in which these incidents occurred. Nor did Romania offer
to co-operate withWkrainein the surveillance of areas which Romanianow claims asits own.
6,108. Finally, itis necessary to clarify that the case-law of the Court and of various arbitral
tribunals discussed at paragraphs 7.53 to 7.58 of Romania'sReply concerns situations where
one or both States argued that their coastal populations were economically dependent on
accessto fish stocksin the area to be delimited.
6.109. In theJan Mayen caseto0,the issue of equitable access to fishstocks was taken into
account as a relevant circumstance, and in other decisions the Court and tribunals have
acknowledged that where "catastrophic repercussions" might follow from the adoption of a
particular boundary line thelocation of fishstocks may play a roleindelimitationlO'.
6.1TO. However, Romaniahas misconstrued Ukraine'sposition in assuming that the basis of
Ukraine's argument isa request for the Court to ensure that Ukraine is granted equitable
access to the fish stocks in the western part of the Black Sea. This is not the case, and the
precedents cited by Romania, along with the facts relating to Ukraine's fishing activities
discussed at paragraph7.60 of Romania'sReply, are irrelevant to these proceedings. As
discussed in thisChapter,the significanceof Ukraine'sfisheries surveillance activitiesis that
Ukraine has carriedout these activities within an area that Ukraine has consistently
considered tofallwithinUkraine'sEEZ, andthat Romania has tacitly respected bylegitimacy
of Ukraine's activities (a) by accepting that ithas been the responsibility of Ukraine, not
Romania,to carryout surveillance of illegalfishingactivities to the north and east of the Iine,
(b) by accepting that it hasbeen the responsibility of Ukraine, not Romania, to intercept and
detain fishingvessels carrying out illegal fishing activities to the north and east of the line,
and (c)by refraining from licensing its own fishermen to fish on the Ukrainian side of the
line.
99 For example,UCM, Annex 106,Vol.5.
SeeRR, para.7.57.
l'' See thediscuss~atRR, paras.7.53-7.59.6.111. The fact that Ukraine has assumed these responsibilities is a relevant circumstance to
be taken into account in delimiting the Parties' Exclusive Economic Zones and continental
shelf. This is particularly so inthe light of the factthat Romania has neither objected to the
activities of the Ukrainian Coast Guard nos carried out similar coastguardactivities in areas
which it maintainsin these proceedingsto fall within its ExclusiveEconomic Zone. CHAPTER 7
THE PARTIES' DELIMITATION LINES
Section 1. Introduction
7.1. In this Chapter, Ukraine will address the delimitation lines advanced by the Parties
andwill respond to arguments presentedin Romania'sReply regarding Ukraine'sline.
7.2. As Ukraine pointed out in Chapter 5, the Parties appear to agree in principle thatthe
delimitation process entails three steps: first, the construction of the provisional equidistance
line; second, the taking into account of any relevant circumstances which may call for an
adjustment of the provisional equidistance line;third, the applicationof proportionalityto test
the equitableness ofthe result produced by the first two steps.
7.3. In its Reply Romania asserts that "Romania has followed precisely the same method
as that adopted by the Court and international arbitral tribunals".'As Ukraine will show,this
is not the case. Romania starts with the erroneous premise that a boundary already exists
around Serpents'Island, and then compounds its error by positing a provisional equidistance
line that is improperly constructed and by failing to take into account the relevant
circumstancesof the case whichjustify an adjustment of that line.
>
7.4. As for Ukraine'sdelimitation line, its legal and factual basis has been explained in
Chapter 9 of Ukraine's Counter-Memorial. Romania's Reply criticizes Ukraine's line
principally on the ground that it accords Serpents' Island too much weight. However,
Romania fails to appreciatethat it is the overall geographical context that must be taken into
accountin arriving at an equitable delimitation,and that Serpents'Island isjust oneelementof
the relevant coastalgeography.Section 2. The Flawed Nature of Romania's Claim
7.5. Despite the fact that Romaniapurports to accept theprinciple that the first step in the
delimitation process is to construct a provisional equidistanceline, Rornania does not follow
this methodology. Instead, it arguesthat the first part of the delimitation should be based on
an alleged pre-existing boundary extending from the terminal pointof the State boundary
between the two countries agreedinthe 2003 Treaty, alonga 12-mile arc to the south and east
of Serpents' Island, up to a point labelled "Point X" lying twelve miles east of Serpents'
Island.
7.6. As Ukraine has shown in Chapter 3, this contention is devoid of merit. There is no
"agreed boundary"based on the relevant legal instruments.Indeed, the allegation that such a
boundary exists is incompatible with the fact that, in the 2003 Treaty, the Parties recognized
that the terminal point of the existing State boundary (labelled "Point F" by Romania on its
maps) was located at a point lying southwest of Serpents' Island having the coordinates
45O05'21 "N;30°02'27"E.Romania'sargument is also inconsistent with the fact that Romania
has acknowledged that the Court'stask in this case is to delimit the maritime boundary
starting from that "Point F".2Moreover,Romania's submissionthat the Court should adopt a
boundary extending along a 12 mile arc to the south and east of Serpents' Island
(corresponding to Serpents' Island's territorial sea) cannot be reconciled with the Parties'
agreement in their 1997 Treaty andExchange of Lettersthat the Court only hasjurisdiction to
delimit the Parties'continental shelves and EEZs, not the territorial sea. This point has been
dealt with in Chapter 2.
7.7. Given that Romania's "PointX", which is an entirely fictitious point, does not lie on
the provisional equidistance line (even as wrongly calculated by Romania), it is clear that
Romania's claimproceeds on a faulty legal premise which is at odds with the principle that
the first stepin the delimitation processis to establish theprovisional equidistance line.
- --p--
2 RM,para. 7.19.7.8. As for the provisional equidistance line, Romania'sposition is also untenable. As
Ukraine has e~plained,~ the construction of the provisional equidistance line is a
straightfonvard technical exercise which is "delimitation neutral". The line is a strictly
calculated line which is equidistant from the nearest points on the Parties' baselines from
which the outer limitsof their respectiveterritorialeas arerneas~red.~
7.9. As Ukraine pointed out in Chapter 5, Romania's construction of the provisional
equidistance line is based on a selective use of basepoints which radically distorts the course
of the line. To recapitulate, Romania uses basepoints on an artificial structure - the Sulina
Dyke - and a sand spit -the Sacalin Peninsula -on its sideof the line, but ignores altogether
thebasepoints situatedon Serpents'Island on Ukraine'sside.
7.10. The consequence of this selective use of basepoints is illustrated on Figure 7-1,
overleaf. This figuredepicts Romania'sversion of the provisional equidistance line in red -a
line which ignores the existence of Serpents'Island, The blue line shows the pronounced
effectthat Romania'suse of Sulina Dykehas on its provisional equidistance lineby depicting
an equidistance line thatignores both Serpents'Island and SulinaDyke. The green line is the
correct provisional equidistance line constructed on the basis of both Parties' relevant
basepoints (including on Serpents' Island, Sulina Dyke, the Sacalin peninsula, and the
Crimeancoast). As a strict equidistance line, the green line does not prejudge any of the
relevant circumstancesin the case.
7.11. A furthernotable feature of Romania'sclaim in the northern sector is that it actually
accords to Romania a larger area of continental shelf and EEZ than Romania's incorrectly
calculated provisional equidistance line.This can be seen by reference to Figure 7-2, which is
a reproduction of Figure 29 to RornaniatsMemorial. The hatched area lying between
Romania'sPoints X, Y md Y1 on the figure corresponds to an area which lies 20the north of
Romania'sprovisionalequidistance line.
3 SeeChapter5aboveandChapter7ofUkraine's Counter-Memorial.
4 See, for example,par5.19-5.20above.7.12. Inits Counter-Memorial, Ukrainedrewattentionto this aspect of Romania'sclaim and
pointed out that, in its Memorial, Romania justified its claim in this area by stating that the
area in question roughly equalfed an area which Romania alleged it had "lost" due to what
Romania's terms an "unjustified departure fiom equidistance" when Romania delimited its
territorial sea with the Soviet Union in 1949.5 In this connection, Ukraine pointed out that
Romania'sclaimwas essentially one for "distributivejustice" to make up forwhatit perceived
to be historicaldisadvantages containedin an agreementto which Romaniawas itself a party.
7.13. Romania has responded to thispoint in its Reply by arguing thatit is not seeking
"compensation" or "distributivejustice" for this part of iclaim. Yet Romania is still unable
to provide the slightest legalsupport for its position, and it continues to asktheCourt to keep
in mind the area "lost" by Romania in its 1949 agreement with the Soviet Union in
consideringthis segment of Romania'sclaim6This isnot a legitimate legalbasis on which to
ground amaritimedelimitation claim.
7.14. Up to this point, Ukraine has focused on Romania'sfailure to cany out correctly the
firststep inthedelimitation exercise - thedrawing oftheprovisional equidistance line.This in
itself undermines the legitimacy of the line advancedby Romania. Equallyserious, however,
is Romania'sfailure to take into account the relevant circumstances characterizing the area
whichjustify a shifting of theprovisional line atthe second stage of the process.
7.15. A mereglance at a map of the relevant area shows that there is a substantial disparity
between the length of the Parties' coasts fionting thatarea. Ukrainehas shown that itsown
coast borderingthe area is some four times longer thanthat of Romania.
7.16. On thelegal plane,Romaniaargues that disparitiesin coastal lengths arenot a relevant
circumstanceand that, at most, my such disparities should be taken into account when
applyingthe test of proportionality. Ukrainehas rebutted this argument in the previous
Chapter and has demonstrated that Romania's position iscontradicted by a long line of Court
precedent. The marked difference in the lengths of the Parties'coasts bordering the area to be
delimited is clearlya relevant circumstance.
5 SeeUCM, paras.4.16-47 andRM,para. 11.T2.
6 RR,para. 8.34. f Basepoints
2;on theProvisionalEquidistance Line Figure7.17. On the factual plane, and no doubt recognizing that its legal arguments are frail,
Romania argues that there is no substantial difference between the length of the Parties'
coasts. This contentionis based on Romania'sartificial elimination of Ukraine's entiresouth-
facing coast from consideration (over 600 kilometres in length).Ukraine has shown that this
manoeuvre is legally unsound and that Ukraine's south-facing coast generates maritime
entitlements throughoutthe relevant area.
7.18. Romania has thus failed to respect either of the first two steps required in order to
effectuate an equitable maritime delimitation. Romania's claim is based on an erroneously
calculated provisionalequidistance line, which Romania ignores in any event in the northern
portion of its claim line. Moreover, the entire course of Romania'sclaim line -both in the
northern sector and the southern sector - disregards the relevant circumstances in the case the
most important of which is the substantial disparity that exists between the lengths of the
Parties'coasts. Romania'sclaim is also inconsistent with the pattern of State conduct in the
area, as discussed in Chapter 6. It is thus not surprising that Romania's claim line fails to
satisfythe test ofproportionality.
Section 3. Ukraine'sDelimitation Line
7.19. The legaland factual basis of Ukraine'sdelimitation linewas described in Chapter 9 of
Ukraine's Counter-Memorial.For ease of reference, Ukraine's line is depicted overleaf on
Figure 7-3.
7.20. In arriving at this line, Ukraine has followed the two-step approach articulated in the
Court's recentjurisprudence. First, Ukraine has plotted the provisional equidistance line. As
explained in Chapter 5, this line does not attempt to prejudge any potentially relevant
circumstances. Ithas been constructed by reference to the basepoints on each Party'sbaselines
from which the breadth of their tenitorial seas is measured. Thus, on the Romanian side,
Ukraine has used the basepoints provided by Sulina Dyke and the Sacalin Peninsula despite
the fact that the former is a man-made structure and the latter is a sand spit. Ukraine has
adopted this approachbecause both featuresprovide basepoints for the definition of the outer
limit of Romania's territorial sea. Similarly, Ukraine has used the basepoints situated onSerpents' Island and on its mainland coast since these, too, are the relevant basepoints
employed by Ukraine for the establishmentof the outer limitsof its territorial sea.
7.21. Second,Ukraine has respected the Court'sjurisprudence in consideringwhether there
are any relevant circumstances that call for the adjustmentof the provisional equidistance line
at the second stage of the process. Ukraine has demonstrated that such circumstances are
present in this case. The principal relevant circumstance justifying a shifting of the
provisional equidistance line is the substantial difference thatexists between the lengths of the
coasts of the Parties bordering the relevant area. Ukraine has reflected thiscircumstance by an
appropriate adjustment of the provisional equidistanceline.
7.22. Ukraine is fully conscious of the fact that maritime delimitation is not an exercise of
"distributive justice". By the same token, delimitation isnot to be effected on the basis of a
strict mathematical correlation between coastal lengths and areas of continental shelf or
Exclusive Economic Zone, even if a marked difference in coastal lengths is a relevant
circumstance.
7.23. It is for these reasons that Ukraine's delimitation line is not based on a strict
apportionment ofmaritime areas on the basis of coastal length ratios. Rather, Ukraine'sline is
a product of balancing the result obtained fiom applicationof the first step in the delimitation
- establishment of the provisional equidistance line -and that obtained fiom the second step -
adjusting the provisional line to reflect the relevant circumstances - which, in this case, are
primarily the significant difference betweenthe length of the relevant coasts of the Parties and
the historical pattern of State activities in the area. Thisbalancing exercise, which accords the
relevant circumstances their appropriate weight, results in Ukraine's delimitation line as
depicted on Figure 7-3.
7.24. Romania'sReply takes issuewith Ukraine's delimitationline primarily on the grounds
that Ukraine gives undue effect to Serpents' Island. Accordingto Romania, "Serpents' Island
is thus, in effect, the advance guard of coastal tiontages situated a great distance from it".'
7 RR, para.8.4.Elsewhere, Romania asserts that the delimitation line proposed by Ukraine "is controlled not
by the Ukrainian mainland coasts but by Serpents'Island".'
7.25. These contentions are entirely misplaced. As is perfectly clear, Ukraine's delimitation
line is not based on the presence of Serpents' Island standing alone, but rather on the
geographical context as a whole as reflected by the coastal geography of the Parties. In this
regard, it is necessaryto emphasise againthat Serpents'Islandis a coastal islandlocated close
to the mainland coastof Ukraine.
7.26. To the extent that Serpents'Island comes into play, it is for purposes of establishing
the provisional equidistance line. Ukrainehas already explainedwhy the use of basepoints on
Serpents'Island for this purpose is fullyj~stified.~The shallowness of Romania'scomplaints
in this respect is evidenced by the fact that Romania has no hesitation in using an artificial
feature - the SulinaDyke - for purposes of constructing its own provisional equidistanceline
while ignoring Serpents' Island altogether.Why an artificialstructure such as SulinaDyke, or
a sand spit such asthe Sacalin peninsula are appropriate to use as basepoints while a natural
and inhabited island such as Serpents'Island is not is left totally unexplained by Romania.
The correct approach for the construction of the provisional line is to use the basepoints
provided by all suchfeatures provided that these basepointslie on baselines fiom which the
breadth of the Parties'respective territorialseas is measured.This is what Ukrainehasdone.
7.27. With respect to Romania's argument that Ukraine'sdelimitation line is controlled not
by Ukraine'smainland coasts but by Serpents' Island, this is obviously wrong.As Ukraine has
explained, its delimitation line results fiom an adjustment of the provisional equidistanceline
in order to take account of the relevant circumstances characterizingthe area. Apart fiom the
State activities of theParties, the principalrelevant circumstanceis the fact that the mainland
coasts of the Parties stand in a relationship by which Ukraine'scoast bordering the area is
some four times longerthan that of Romania.As a matter of legalprinciple, that circumstance
is highly relevant and deserves to be accorded its appropriate weight in arriving at an
equitable solutionindependently of the importance and locationof Serpents'Island.
8 Ibid.,para.8.5.
9 See Chapter5,generally.7.28. This is precisely what Ukraine has done in arriving at its delimitation line. Ukraine's
delimitation line is thus in accordance with legal principles and reflects the relevant
circumstances characterizing the area. Confirmation of the equitable nature of Ukraine'sline
and the inequitable nature of Romania's line depends on the application of the test of
proportionality, which is the third and finalstep in the process. This is discussed in the next
Chapter. CHAPTER 8
Section 1, Application of the Proportionality Test
8.1. In this Chapter, Ukraine will turn to the third step in the delimitation process in which
the equitableness of the delimitation line arrived at by application of the first two steps is
tested againstthe criterionof proportionality.
8.2. As the Court has emphasized,application of the proportionality test does not require
that there be an exact correlation between the ratio of the lengthsof the relevant coasts of the
Parties and the ratioof the maritime areas that appertain to those coasts. Rather, the aimisto
verify whether a particular delimitation line produces a result which is not g~ossly
disproportionate intermsof coastal lengths and maritime areas.
8.3. Ukrainedemonstrated how its delimitation line fully satisfies the proportionality test
in Chapter 10 of its Counter-Memorial. Figure 8- 1 (overleaf)illustrates the position. Whereas
the length of the Parties'relevant coastsstands in a relationshipof 4.1 to l,themaritime areas
appertaining to these coasts resulting from Ukraine'sline have a ratio of roughly 3.1 to 1.
Ukraine's delimitation line is thus in no way disproportionate; it fully satisfies the test of
proportionality.
8.4. In its Memorial, Romania clearly considered the proportiorlality test to be an
important element in the delimitation process andattempted to show that its own claim line
respected that test.' For example, Romania stated that "it has become usual that the
equitableness of a maritime delimitationbe tested using the so-called 'proportionalitytest"'.2
Romania also noted that paragraph 4(c) of the 1997 Exchange of Letters, whichRomania
l 1 RM, Chapter12,
2 Ibid .ara.12.1.considers to be part of the applicable specifically refers to the "principleof equity and
the method of preporti~nality".~
8.5. 1n its Reply, Romania exhibits considerably less enthusiasm for the proportionality
test than it did in its Memorial.In the Reply, Romania first reviewed in a rather superficial
manner previous cases where proportionality had been discussed. Having done so, Romania
then statedthat it is "against this background the warnings issuedbythis Court and Tribunals
as to the application of the proportionality test should be ~nderlined".~Further on, and in
contrast to Romania's endorsement of the proportionality test in its Memorial, Romania's
Replystated:
"The present case illustrates the difficulties that the use of proportionality can entail
and the need forcaution. "6
8.6. The reason why Romania now distances itself horn the rolethatproportionality plays
in the case is for Romania to explain. However, Ukraine strongly suspects that it is because
Romania appreciates that its contention that itsclaim line satisfies the proportionality test,
whileUkraine'sline doesnot, rests on a seriesofuntenabIe propositions.
8.7. The Parties agree that application of the proportionality test is afunEtion of two main
elements: (i) the identification of the relevant coasts of the Parties fronting the area to be
delimited, and (ii) the identification of the relevant area within which the delimitation is to
take place. To support the argument that its claimline satisfiesthe test of proportionality and
thatUkraine'sline is disproportionate, Romania is forced to manipulate both of theseelements
in amanner thatis whollyunjustified.
8.8. With respect to the relevant coasts, Romania arbitrarily eliminates from the equation
over 600 kilometres of Ukraine's south-facingcoast while, at the sametime, it treats dlof its
own coast as relevant. Ukraine has already explained why this approach is legally and
factually unsustainable.' Obviously, disregarding almost half of Ukraine'srelevant coast
3
4 Ths issue habeen addressedby UkraineinChapter2 above.
RM, paras.8-55and8.58.
5 RR, para.9.30.
6 Ibidp.,ra.9.3l.
7 SeeChapter 4 above.produces distorted proportionality calculations which bear no relationship to the actual
geography of the area.
8.9. Notwithstanding this, it is instructive toexamine the result that would obtain if, quod
non, Romania's argumentabout Ukraine'ssouth-facing coast were to be accepted. Romania
posits a closing line from "Point S" to Cape Tarkhankut. If this closing coast is treated as a
notional closing line representing the coast that lies behind it, Ukraine's delimitation line
would still satisfytheproportionality test.
8.10. As illustrated overleaf on Figure 8-2, under this hypothesis, Ukraine's 'coast' would
measure some 603 kilometres (as opposed to 258 kilometres, being the length of Romania's
coast) - thus producing a ratio of coastal lengths of 2.3 to 1.The maritime areas appertaining
to those "coasts" under this scenario would be in the order of 2.4 to 1. In other words,
Ukraine's delimitationline would still respectthe element of proportionality.
8.11. With respect to the identification of the relevant area, Ukraine has also discussed the
shortcomings in Romania's position earlier inthis Rejoinder.' The differences between the
Parties on this issue relate to three areas which can be summarized as follows. In the north,
Romania has (wrongly, in Ukraine's view)excluded from consideration the area lying off
Ukraine's south-facingcoast north of theclosing line linlungwhat Romania terms "Point S" to
Cape Tarkhankut. In the east, Romania has included a triangle-shaped area whichhas already
been subject to a delimitation between Ukraine and Turkey and thus is not in issue between
the Parties to this case. In 'the south, there is a small sliver of area which Romania has
included based ona hypothetical maritimeboundary with Bulgaria.
8.12. Ukraine will not repeat its arguments as to why Romania's positionwith respect to
each of these three areas is misguided. However, it is revealing to examine the situation that
would result if the relevant areas as definedby the Parties arecombined: in other words, if the
northern area, the eastern triangle, and the southern sliver are all included as comprising the
relevant area.
8
SeeChapter4, Section4.8.13. The result in relation to Ukraine's delimitation line for proportionality purposes is
illustrated on Figure 8-3. As can be seen, even under this hypothesis, theratio of the Parties'
respective coastal lengths remains in the order 4.1 to 1, while the ratio of the maritime areas
appertaining to those coasts is 3.7 to 1. Once again, Ukraine's delimitationline fully satisfies
the test ofproportionality.
8.14. This should come as no surprise. If the provisional equidistance linehas been properly
constructed, and the relevant circumstances justifying an adjustment of that line have been
taken into account and giventheir appropriate effect -as Ukraine has done -then the resulting
line should,in principle, satisfythe test of proportionality and achievean equitableresult.
8.15. Two cases cited by Romania in its Reply illustrate the point. The first is the Tunisia-
Libya case where, as Romania states, "the Court assigned to proportionalitythe role of a test
effected in order to check the equitableness of the delimitation line it had previously
e~tablished".~
8.16. The key point is that in Tunisia-Libya, the Court first established thedelimitation line
on the basis of the relevant circumstances that characterized the area. In other words, the
relevant circumstances dictated the course of the line. Only afterwards did the Court test the
line by reference to the elementof proportionality.
8.17. The Court found that the length of the coasts of the two parties stood in a relationship
of 1 to 2.2 (31:69), or 1 to 1.9 (34:66) if coastal fronts were considered. With respect to the
delimitation line that had been arrived at by taking into account the relevant circumstances,
the Court found that it divided themaritime areas appertaining to those coastsin aratio of 1to
1.5(40:60).Given that the tworatios (1 to 2 as opposed to 1to 1 .S) werenot disproportionate,
the Court concluded that "thisresult, taking into account all the relevant circumstances, seems
to the Court to meet the requirements of the test ofprop~rtionality".'~
9 RR, para.9.6, citingContinental Shelf(Tunisia/LibyanArab Jamahiriya), Judgment, I.C.J. Reports
1982,p. 18, atp. 91, para.131.
l0 Continental Shelf(TunisiaLLibyaArab Jamahiriya), Judgment,LC.J . eports 1982, p18, at p. 1,
para.131.Figure 8-2 zzzl
Delimitation
Lie8.18. The reasoning adoptedby the Court ofArbitration inthe St.Pierre & Miquelon caseis
similar. Romania points out that the Court of Arbitration found that the ratio between the
Canadian and French coastlines was 15.3:1, while that the ratio of the maritime spaces
appertaining to the partieswas 16.4:1 .l1These ratioswere clearly not disproportionate and the
Court of Arbitration concluded as much. However, the important point which Romania
neglects to mention is that the 16.4:l ratio of maritime areas identified by the Court of
Arbitration was the ratio that existed after the relevant circumstances -particularly the short
Frenchcoastline - had beentaken into accountin arriving at the delimitation line.
8.19. The same holds true in this case. As Ukraine has shown, its delimitation line reflects
both the provisional equidistance line and the adjustment of that line necessary in order to
reflect the relevant circumstances. When the proportionality test is subsequently applied to
this line, it can be seen that Ukraine's linehlly meets the test.
8.20. In certain situations, it is not always practical to apply theproportionality teper se
because it is difficult to identify the relevant area with sufficient precision. This is the case,
for example, where a delimitation is carried out in the middle of the sea -as occurred in the
Jan Mayen and Libya-Maltacases -or where the Court's competenceis circumscribed -as it
was in the Gulfof Mainecase where the parties requested that the delimitationline endwithin
a pre-determined triangleof area. Yet even in those cases, the Court has made it clear that a
significantdisparity in the parties' coastal lengths wouldstill be a relevant circumstanceto be
takeninto account in orderto arrive at an equitabledelimitation.
8.21. In the present case, there are no such impediments. Becausethe delimitation is being
effectuatedin the northwestcorner of the Black Sea, the identificationof the relevant areais a
relatively straightforward exercise. Ukraine has explained its views on the correct
identification of the relevant area within which the proportionality test may be carried out in
Chapter 4. Ukraine has also shown that, even if the combined relevant areas proposed by the
Partiesare used for the exercise,its delimitation linestill satisfies the test of proportionality.
l1 RR, para.9.11. - 146 -
Section 2. The Principle of Non-Encroachment andSo-Called "Security"Interests
8.22. Romania's Reply also contains a brief discussion of the principle of "non-
encroachment" where Romania attempts to show that Ukraine's delimitation line"cuts off'
Romania's maritime entitlements, whileits own line respects the entitlements generated by
Ukraine'scoasts.12 Neither of thesepropositions withstandsscrutiny.
8.23. With respect to Ukraine's line,the Reply includes a figure (Figure RR32) which is
introduced to show that the initial portion of Ukraine's linefalls 17 nautical miles off the
short, northern sector of Romania's coastbut some 153 nautical miles from the Ukrainian
coast on Crimea. This figure is completelymisleading. Romania has simply ignored the fact
that Ukraine alsopossesses an east-facingcoast stretching fromthe terminal point on the land
boundary with Romania, and that Ukraine's line in the relevant section is only some
17nautical miles from that coast (measured from the Tsyhanky Islands at the mouth of the
Danube). Romania also ignores thepresence of Serpents' Island,which is even closer.
8.24. As Ukraine has explained, it is not the task of the Court to refashion geography. The
geographical factsexist, and the delimitationshould reflectthose facts.
8.25. This is why Romania'sargumentthat its own claim line does not produce a "cut off'
effect is misplaced.The argument is advancedat the expenseof denying that Ukraine's south-
facing coasts generate maritime entitlements throughout therelevant area and of ignoring the
presence of Serpents'Island. Ukraine addressed these points in its Counter-Memorial,13and
earlier in this Rejoinder, and willnotrepeat them here.
8.26. With respect to Romania's discussionof so-called "security interests",14only a brief
response is necessary. Ukraine's linein no way compromises any Romanian security interests
which, as a matter of fact, Romania has not even described let alone shown to exist. Unlike
Romania's claim, which wouldlimit Ukraine's entitlements toa twelve-mile territorial sea
12 RR,paras.9.32-9.36.
13 UCM, paras.10.23-10.25.
14 RR,paras.9.37-9.41. - 147 -
around Serpents' Island with no continental shelf or EEZ rights to the south, Ukraine's
delimitationline accords to Romania areas of continentalshelf and EEZ off its coast.
8.27. To the extent that any "security interests" are at stake and risk being compromised -
and Ukraine does not consider that secuiity interests have any relevant role to play in the
case1' -it is Romania'sclaim linewhich cuts right through areas which have been the subject
of Ukrainianhydrocarbon activitiesand which have been regularly patrolled by the Ukrainian
Coast Guard, and it is Romania's claim line which cuts off the entitlements of Ukraine's
south-facingcoast and Serpents'Island.16
15 UCM, para.10.26.
l6 Ibid.,para.10.27. CHAPTER 9
SUMMARYOF UKRAINE'S REASONING
9.1. In accordance with the Court'sPractice Direction 11,Ukraine in this Chapterpresents a
short summary of its reasoning. At the conclusion of its Counter-Memorial Ukraine, in
Chapter 11of that written pleading, set out a short summary of its reasoning and conclusions
as set forth in that pleading. Since this present Rejoinder marks the conclusion of Ukraine's
written pleadings so far as they are envisaged at present, this Chapter sets out a short
summary of Ukraine's reasoning as developed in itstwo written pleadings. It is accordingly a
comprehensive summary, covering both the reasoning developed in Ukraine's Counter-
Memorial and the elaboration of that reasoning developed in this Rejoinder in order to
respond to thearguments advancedin Romania'sReply.
9.2. The summary of Ukraine'sreasoning which follows is without prejudice to the full
exposition of itscase as set out in its Counter-Memorial and in this present Rejoinder.
9.3. Ukraine'sreasoning canbe summarised as follows:
(i) The jurisdiction of the Court, under Article 36(1) of the Court's Statute, is
founded on paragraph4(h) of the 1997Exchange of Letters and the subsequent
entry into force of the 2003 Ukraine-Romania Treaty.
(ii) Both Parties agreethat the Court'stask begins with the boundary starting at the
point at which they have agreed, in the 2003 Treaty, that the outer limits of
their respective territorialseas intersect. Up to that agreed point of intersection
the Parties have agreed theirterritorial sea boundary. It is seawards from that
agreed point of intersection that the Court has been given jurisdiction to
delimit the Parties' continental shelvesand EEZs, and to delimit only those
maritime areas: the express terms of the instruments confemng jurisdiction
upon the Court make it clear that its jurisdiction is limited to the delimitation
of the continental shelf and EEZ between the Parties. In particular, the Court has no jurisdiction to delimit other maritime zones, such as the territorial sea,
of either of the Parties.
(iii) The Court has nojurisdiction to decide anyquestion of territorial sovereignty,
as to which there is in any event no disputebetween the Parties.
(iv) .The Court is called upon to decide the question of the delimitation of the
continental shelf and EEZbetween the Partieson the basis of international law
as set out in Article 38 of the Court's Statute. The "principles" recorded in
paragraph 4(h) of the 1997 Exchange of Letters represented, as is clear from
the express terms of that paragraph, "principles" on the basis of which the
Parties agreed to attempt to negotiate a delimitation agreement, but they are
not bindingperse on the Court whose task is to adjudicate thedispute between
the Parties in accordance with international law.
(v) No part of the maritime boundary beyond the point agreed in the 2003 Treaty
as the point where the outer limits of the Parties' respectiveterritorial seas
intersect has been agreed. Romania's contentions thatthe first segment of the
maritime boundary which the Court is calledupon to delimit - i.e., the segment
from that agreed point of intersection to a point due east of Serpents' Island
(Romania's alleged "Point X") -has already been agreed are wholly without
foundation. Nothing in the terms of the 1949Procks Verbaux agreed between
the Soviet Union and Romania, or in any other contemporaneous instrument or
map, lead - or even hint at - any such conclusion. To the extent relevant,
previous agreements between the Parties, or their predecessors, have only
delimited the territorial seas of the Parties and, therefore, althoughthey remain
binding agreements, they do not constitute agreements on the delimitation of
either the continental shelf or EEZwithin the meaning of Articles 74 and 83 of
the 1982 United Nations Law of the Sea Convention. Indeed, nothing in the
agreements fiom 1949onwards gives any support to Romania'salleged semi-
circular arc aroundthe south of Serpents'Island.(vi) On the contrary, the termsof the 1949 ProcksVerbaux taken togetherwith the
Map 134recording the line of the agreed boundary show a maritime boundary
extending only a limited distance along the Serpents' Island 12nauticalmile
arc to a point virtually identical with the point agreed in the 2003 Treaty as the
point where the outer limits of the Parties' respective territorial seas intersect
andhaving the co-ordinates45'05'21"N, 30°02'27"E.
(vii) Romaniaadmits that its alleged final point of the allegedly agreedboundary at
what it refers to as "PointX"approximately due east of Serpents'Island "is not
specifiedin any of the ProcGs-Verbaux"and "isnot shown on anyof the sketch
maps".
(viii) Since the 2003 Treaty confirms that the State border between the Parties has
only been delimited for their territorial seas, and the Parties agree that the
starting point for the Court'sdelimitation of the continental shelf and EEZs
betweenthe Parties is the point identified in the 2003Treaty, it follows that the
waters beyond that agreed point, and lying outside the territorial seas of
Ukraine and Romania, are part of the open sea, in respect of which both
Ukraine and Romania have rights as regards the continental shelf and EEZs
(subject to delimitation of the relevant boundaries). There is no basis
whatsoever for Romania's contention thatin some way those waters appertain
to Romania and that Ukraine,and previously the Soviet Union, enjoysno such
rightsin respect of those waters.
(ix) Under international law, thebasic principle of delimitation for the continental
shelfand EEZ is expressedin the "equitable principleslrelevant circumstances"
rule, which the Court has identified as being similar to the
"equidistancelspecial circumstances" rule applicable to the delimitation of the
territorialsea. Application of this rule, both generally and in this case, entails essentially the
(X)
following steps:
First, it is necessary to establish a "provisional equidistance line",
(a)
which is a strictly calculated equidistance line drawn between the basepoints
on the Parties' coasts, or their baselines, from which the limits of their
territorial seas are measured, without prejudging the existence or effect of any
potentially relevantcircumstances.
(b) Second, the relevant circumstances characterizing the area to be
delimited (the "relevant area") must be identified. These circumstances are
primarily of a geographic nature, but may encompass other elements such as
State activities in the relevant area and the presence of third States at the
extremities of that area.
(c) Third, in the light of the relevant circumstances so identified, it is then
necessary to determine whether, and to what extent, the provisional
equidistance line requires adjustment in order to reflect fully the relevant
circumstances andto achieve an equitableresult.
(d) Fourth, the equitableness of the delimitation line arrived at by a
combination of the earlier steps is then to be tested by reference to the element
of proportionality to verify whether the delimitation is not unduly
"disproportionate"andwhether it thereby achieves an equitablesolution.
(xi) In the present case, theprovisional equidistance line establishedpursuant to the
first step in the delimitationprocess is the line that is depicted on Figure 7-1 of
Ukraine's Counter-Memorial and repeated in Figure 5-1 of this Rejoinder. As
described in Chapter 5, that line has been constructed using the appropriate
basepoints on each Party's coasts, including basepoints on Serpents' Island.
Contrary to Romania'sassertions, Serpents'Island is a full-fledged island with
a rich and long-standing history. It has supported considerable human
habitation and economic and other activities for many years and continues to do so in the present. All of the maps introducedby Romania depict the island,
and the historical sources are replete with references to the importance of the
island.
(xii) With respect to the relevant circumstances, Chapter 8 of Ukraine'sCounter-
Memorial and Chapters 4 and 6 of this Rejoinder have shown that the overall
geographical setting within which the delimitation is to be effectuated
constitutesthe most importantrelevant circumstance.Within the relevant area,
the relevant coasts of Ukraine are some four times longer than those of
Romania,whether such coasts are measured taking into accounttheir sinuosity
or in accordance with their general direction or coastal faqades. In addition,
Ukraine has adduced considerable evidence attesting to the numerous State
activities that Ukraine has carried out within the relevant area and the lack of
any competing Romanian activities. As for the presence of third States and
their potentialmaritime entitlements, thesemaybe relevant for determining the
end-point of the Ukraine-Romanian maritime boundary, but they are not
otherwise germane to determining the method of delimitation that produces an
equitableresult betweenthe Parties.
(xiii) In the light of the relevant circumstances, Chapter 9 of Ukraine's Counter-
Memorial and Chapters 6 and 7 of this Rejoinder have shown that the
provisional equidistance line must be adjusted in order to take such
circumstances into account, and in particular to reflect the substantialdisparity
that exists between the lengths of the relevant coasts of the Parties abutting the
areatobe delimited.
(xiv) Romaniahas introducedahighly artificial claim line which neitherrespects the
applicablelaw nor takes into account the relevant circumstances characterizing
the area. Romania first posits a provisional equidistance line which is
erroneously constructed byignoring relevant basepoints on Ukrainianterritory
along Serpents' Island. Romania then effectively refashions geography by
relyingon a very short stretchof its own coastrepresented by a basepoint lying
on a man-made structure -the Sulina Dyke -and an uninhabited sand spit -the
Sacalin Peninsula - and subsequently double counts that short stretch of coast for both the "adjacent coasts" and "opposite coasts" sector of its claim. At the
same time, Romania artificially excludes asubstantial (630km long) stretch of
Ukraine's cost directlyfronting the relevant area and thereby fails to take into
account the relevant geographical circumstances characterizing the area.
Finally, Romania artificially adjusts its wrongly calculated provisional
equidistance line in an exercise of so-called "distributive justice" in order to
compensate for what Romania perceives to be past injustices imposed on it.
None of this is supportable in the law or on the facts, asChapter 4 of Ukraine's
, Counter-Memorial and Chapters 6 and 7 of this Rejoinder havedemonstrated.
Application of theproportionality test to the delimitation lines advanced by the
(xv)
Parties confirms that Ukraine's delimitationline fully satisfied the criterion of
proportionality while Romania's method does not. The lengths of the relevant
coasts of the Parties fronting the relevant area stand in a relationship of 4 to 1
in Ukraine's favour.Ukraine'sdelimitationline, in turn, produces an areal ratio
of maritime areas appertaining to the Parties in the order of roughly 3 to 1 in
favour of Ukraine. This confirms that Ukraine's methodology more than
achieves an equitable result. In contrast, Romania's claimline produces an
areal ratio of only 1.7 to l in favour of Ukraine, and thus is demonstrably
"disproportionate",and thereby inequitable,when considered in the light of the
actual coastal geography. Romania's claimline also deprives the south-facing
coast of Ukraine of its legal maritime entitlement and produces an unjustified
cut-off effect on Ukraine's maritime entitlement toits continental shelf and
Exclusive EconomicZone. SUBMISSIONS
Inthe light of the facts and legal principles set out in Ukraine'sCounter-Memorial and
Rejoinder, andrejecting Romania's claimsto the contrary, Ukraine respectfullysubmits that
the Court adjudge anddeclarethat the delimitation of the continental shelf and Exclusive
EconomicZones betweenthe Partiesis adelimitation linethe course of which, employingthe
Pulkovodatum(i.e us,ngthe Krasovskyellipsoid),iasfollows:
From the point identified in Article 1 of the 2003 Treaty having the co-ordinates of
45"05'2T"N3 ;0°02'27"E, the delimitationline extends in a south-easterly directionto
Point 2, havingthe co-ordinates of 44"54'0OW3N0;°06'00"aEnd thence to Point3,
having the co-ordinates of 4"20'37"N; 31°059 9"E, andthen continues along the
same azimuth,until the boundaryreaches a pointwherethe interestofthirdStates
potentiallycomeinto play.
Thecourse ofthe boundary thus described is depicton Figure9-3 of Ukraine'sCounter-
Memorial and onFigure7-3 of thisRejoinder.
Respectfullysubmitted,
H.E. VolodymyrVassylenko
Agent ofUkrainebefore theInternational Courtof Justice
6 July2007 LIST OF ANNEXES
(Volume 2)
1. TheProtocolon Descriptionof Traversal of the State Border Linebetween the Union
of Soviet Socialist Republics and the Romanian People's Republic, demarcationof
which took placein 1948 -1949,Volume I,with English translation.
2. TheProtocol on Description of Traversal of the StateBorder Libetween the Union
of Soviet Socialist Republicsand the Romanian People's Republic, demarcation of
whichtook place in 1948 -1949,Volume 111 , ithEnglish translation.
3. WesternPart of theBlackSea,ChartNo. 500, 1951edition.
I
4. Enlargementof bottom lefl-handcorner of WesternPart of theBlackSea, Chart No,
500, 1951edition.
5. E. Egger, "Inscription de 1'Ilede LeucS1,Bulletin de correspondence HeEl&nique,
ErnestThorin Libraire-Editeur,Paris, 1885(pp.575-3791.
6. S.B.Okhotnikov and A.S. Ostroverkhov, "ZmeinyiIsland:the Problemsof Research
and Protection", Protectionand Research of the Monuments of Archaeology in
Odesa Oblast (ProvincIe s)ue l,AstroPrint, Odesa, 1999 (pp.25-27),with English
translation.
7. Diplomatic Note No. 42512~-112-1804from the Ministry of Foreign Affairs of
Ukraine to the Embassy of Romania in Ubaine, dated 9 July 2001, with English
translation.
8. Diplomatic Note No. 72J23-482-6629 fiom the Ministry of Foreign Affairs of
Ukraine to the Ministryof Foreign Affairs ofRomania, dated 14December 2004,
withEnglishtranslation.
9. Diplomatic Note No. 72122-480-1056 from the Ministry of Foreign Affairs of
Ukraine to theMinistry of Foreign Affairsof Romania, dated 7 April 2005, with
Englishtranslation.
l0. Diplomatic Notes No. 72123-482-4667 and 72/23-482-4668 from the Ministry of
Foreign Affairs of Ukraineto the Embassy of Romania in Ukraine, dated 35 June
2006,with English translation.Diplomatic Note No. 72122-482-5403 fromthe Ministry of Foreign Affairs of
Ukraine to the Embassyof Romania in Ukraine, dated 16 August 2006, with English
translation.
Diplomatic Notes No. 72122-482-4469 and 72/22-482-4470 from the Ministry of
Foreign Affairs ofUkraine to the Ministry ofForeign Affairs of Romania, dated 31
May2006, with Englishtranslation.
Statement of AndriyPvanovychBAZAN, dated 25 May 2007 (signed Ukrainian
original, with EngIishtranslation).
Statement of Andriy Vitaliyovych KORMECH, dated 25 May 2007 (signed
Ukrainian original, with English translation)
Statement of Borys Antonovych SHEVCHENKO, dated 23 May 2007 (signed
Ukrainian original,withEnglish translation).
Statement of Timur Albertovych TSYMBULOV, dated 23 May 2007 (signed
Ukrainian original,with English translation).
Statement of SerhiyMykhailovych RYZHYK,dated 23 May2007 (signed Ukrainian
original,with Englishtranslation).
Statement of GennadiyMykolaiovych ROSOLOVSKY, dated 29 May 2007 (signed
Ukrainian original, withEnglish translation).
Statement of IharVoZodymyrovych ZAPYANTSEV, dated 23 May 2007 (signed
Ukrainian orignal, withEnglish translation).
List of Interceptions of Turkish and Bulgarian Fishing Vessels by the Ukrainian
CoastGuard.
Certification othe Agent of Ukraine.
Rejoinder of Ukraine