Non-Corrigé
Uncorrected
CR 2008/28
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Thursday 11 September 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Maritime Delimitation in the Black Sea
(Romania v. Ukraine)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le jeudi 11 septembre 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à la Délimitation maritime en mer Noire
(Roumanie c. Ukraine)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-PresiKntasawneh
Judges Ranjeva
Shi
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Cot
Oxman
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-Kh.vce-prh,ident
RanMjv.
Shi
Koroma
Buergenthal
Owada
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skoteiskov,
CotMM.
jOges an, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Romania is represented by:
Mr. Bogdan Aurescu, Director General, Ministry of Foreign Affairs of Romania, Professor
Lecturer, Faculty of Law, University of Buchar est, President of the Romanian Branch of the
International Law Association, member of th e Permanent Court of Arbitration, substitute
member of the Venice Commission,
as Agent, Counsel and Advocate;
Mr. Cosmin Dinescu, Director General for Legal Affairs, Ministry of Foreign Affairs of Romania,
as Co-Agent, Counsel and Advocate;
H.E Mr. Călin Fabian, Ambassador of Romania to the Kingdom of the Netherlands,
As Co-Agent;
Mr. James Crawford, S.C., F.B.A., Whewell Prof essor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers,
Mr. Vaughan Lowe, Q.C., Chichele Professor of Inte rnational Law, University of Oxford, member
of the English Bar, associate member of the Institut de droit international,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, member and former
Chairman of the International Law Commission, associate member of the Institut de droit
international,
a s Senior Counsel and Advocates;
Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University
of Paris Ouest, Nanterre-La Défense,
as Counsel and Advocate;
Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,
as Counsel;
Mr. Gicu Boroşi, Director General, National Agency for Mineral Resources,
Mr. Mihai German, Deputy Director General, Nati onal Agency for Mineral Resources, member of
the United Nations Commission on the Limits of the Continental Shelf,
Mr. Eugen Laurian, Counter-Admiral (retired),
Mr. Octavian Buzatu, Lieutenant Commander (retired),
Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,
as Technical and Cartographic Experts;
Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania, - 5 -
Le Gouvernement de la Roumanie est représenté par :
M. Bogdan Aurescu, directeur général au ministère roumain des affaires étrangères, chargé de
cours à la faculté de droit de l’Université de Bucarest, président de la section roumaine de
l’Association de droit international, membre de la Cour permanente d’arbitrage, membre
suppléant de la Commission de Venise,
comme agent, conseil et avocat ;
M.CosminDinescu, directeur général des affair es juridiques du ministère roumain des affaires
étrangères,
comme coagent, conseil et avocat ;
S. Exc. M. Călin Fabian, ambassadeur de Roumanie auprès du Royaume des Pays-Bas,
comme coagent ;
M. James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat, Matrix
Chambers,
M. Vaughan Lowe, Q.C., professeur de droit internati onal à l’Université d’Oxford, titulaire de la
chaire Chichele, membre du barreau d’Anglet erre, membre associé de l’Institut de droit
international,
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
comme conseils principaux et avocats ;
M. Daniel Müller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
comme conseil et avocat ;
M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,
comme conseil ;
M. Gicu Boroşi, directeur général de l’agence nationale des ressources minières,
M. Mihai German, directeur général adjoint de l’agence nationale des ressources minières, membre
de la Commission des limites du plateau continental de l’ONU,
M. Eugen Laurian, contre-amiral (en retraite),
M. Octavian Buzatu, capitaine de corvette (en retraite),
M. Ovidiu Neghiu, capitaine, ministère roumain de la défense,
comme experts techniques et cartographes ;
M. Liviu Dumitru, chef de l’unité frontières et délimitation maritime du ministère roumain des
affaires étrangères, - 6 -
Ms Irina Ni ţă, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the
Netherlands,
Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Olivia Horvath, Desk Officer, Public Diplom acy Department, Ministry of Foreign Affairs of
Romania,
as Advisers.
The Government of Ukraine is represented by:
H.E. Mr. Volodymyr A. Vassylenko, Adviser to th e Minister for Foreign Affairs of Ukraine,
Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law,
National University of Kyiv Mohyla Academy,
as Agent;
H.E. Mr. Oleksandr M. Kupchyshyn, Deputy Foreign Minister of Ukraine,
Mr. Volodymyr G. Krokhmal, Director of the Lega l and Treaty Department of the Ministry of
Foreign Affairs of Ukraine,
as Co-Agents;
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the New York Bar,
Eversheds LLP, Paris,
Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of ParisI
(Panthéon-Sorbonne),
Sir Michael Wood, K.C.M.G., Member of the English Bar, Member of the International Law
Commission,
Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris , Member of the Rome Bar,
Eversheds LLP, Paris,
as Counsel and Advocates;
H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine,
Ms Cheryl Dunn, Member of the State Bar of California, Eversheds LLP, Paris,
Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,
Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty
Department of the Ministry of Foreign Affairs of Ukraine, - 7 -
Mme Irina Niţă, deuxième secrétaire, conseiller juridique à l’ambassade de Roumanie au Royaume
des Pays-Bas,
Mme Catrinel Brumar, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Mirela Pascaru, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Ioana Preda, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Olivia Horvath, responsable du départem ent des relations diplomatiques du ministère
roumain des affaires étrangères,
commceonseillers.
Le Gouvernement de l’Ukraine est représenté par :
S. Exc. M. Volodymyr A. Vassylenko, conseiller du ministre des affaires étrangères de l’Ukraine,
ambassadeur extraordinaire et plénipotentiaire d’Ukraine, professeur de droit international à
l’Académie Mohyla (Université nationale de Kiev),
comme agent ;
S. Exc. M. Oleksandr M. Kupchyshyn, vice-ministre des affaires étrangères de l’Ukraine,
M. Volodymyr G. Krokhmal, directeur du départem ent des affaires juridiques et des traités du
ministère des affaires étrangères de l’Ukraine,
comme coagents ;
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,
M. Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
(Panthéon-Sorbonne),
sir Michael Wood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,
Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Eversheds LLP, Paris,
comme conseils et avocats ;
S. Exc. M. Vasyl G. Korzachenko, ambassadeur extraordinaire et plénipotentiaire d’Ukraine,
Mme Cheryl Dunn, membre du barreau de Californie, cabinet Eversheds LLP, Paris,
M. Nick Minogue, Solicitor à la Cour suprême d’Angleterre et du pays de Galles,
M. Oleksii V. Ivaschenko, directeur par intérim de la division du droit international, département
des affaires juridiques et des traités du ministère des affaires étrangères de l’Ukraine, - 8 -
Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic,
Ms Mariana O. Betsa, Second Secretary of th e Embassy of Ukraine in the Kingdom of the
Netherlands,
as Legal Advisers;
Mr. Robin Cleverly, M.A., D. Phil, C. Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of
Ukraine,
as Technical Advisers. - 9 -
M. Maxime O. Kononenko, premier secrétaire à l’ambassade d’Ukraine en France,
Mme Mariana O. Betsa, deuxième secrétaire à l’ambassade d’Ukraine au Royaume des Pays-Bas,
comme conseillers juridiques ;
M. Robin Cleverly, M.A., D. Phil., C. Geol., F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Borys D. Tregubov, général de division, assistant du chef du service de protection des frontières
d’Etat de l’Ukraine,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. The sitting is now open for the continuation of the first
round of pleadings of Ukraine and Sir Michael you are to continue your submissions.
Sir Michael WOOD: Thank you very much, Madam President.
VI. A BSENCE OF A PRE -EXISTING ALL -PURPOSE MARITIME BOUNDARY
AROUND S ERPENTS ’ ISLAND
(CONTINUED )
1. Madam President, Members of the Court, yesterday, I was explaining why Romania’s
thesis of a pre-existing agreement on an all-pur pose maritime boundary around Serpents’ Island is
unconvincing. Romania has not discharged the burden upo n it, if it is to substantiate its claim that,
already in 1949, the Soviet Union and Romania had agreed on such a boundary.
2. I covered yesterday Romania’s misreading of the text of the 1949 procès-verbaux, and
also its unconvincing speculation about the intentions of the negotiators in 1949, which completely
ignored the state of international law of the sea at that time.
3. Today, after some words about subsequent agreements, I will consider Romania’s reliance
upon “map evidence”. Then, at the end, I shall list briefly the inconsistencies between its thesis
and recent agreements entered into by the Parti es and in particular those of 1997 and 2003, and
with their activities or, rather, in the case of Romania, lack of activities in the relevant area.
(iii) Reference to sketches, charts and subsequent agreements
Instruments of 1954, 1961, 1963 and 1974
4. Madam President, Romania originally re lied upon certain subsequent agreements to
“confirm” the agreement which it claims to fi nd in the 1949 procès-verbaux; these are the
agreements of 1954, 1961, 1963 and 1974. The Parties now seem to be in agreement that these
1
change nothing .
5. The Act of 1954, and the procès-verbaux of 1963 and 1974, merely effected technical
adjustments of certain border marks. The Treaty on the Border Régime of 1961, updated and
CR 2008/19, p. 34, para. 39 (Crawford). - 11 -
replaced the Treaty on the Border Régime of 1949. Article1 simply confirmed the State border
agreed in 1949.
6. This is perhaps the moment to mention Romania’s argument, first raised in the Memorial , 2
that the procès-verbaux–– and also the 1997 Exch ange of Letters–– are “agreements in force
between the States concerned”, within the meani ng of Article74, paragraph4, and Article83,
paragraph4, of the Convention on the Law of th e Sea, so that “questions relating to the
delimitation of the continental shelf [or the EEZ] shall be determined in accordance with” their
provisions. Last Tuesday, ProfessorPellet confessed that he had difficulty seeing the interest in
this debate 3–– “cette querelle”. I respectfully agree.
7. The purpose of paragraph 4 of Articles 74 and 83 may not be immediately apparent. The
paragraphs were, I think, intended to be savi ng provisions, having regard to Article311 of the
Convention, which concerns the relations of the Convention to other agreements. But, in any
event, as regards the procès-verbaux of 1949, and subsequent agreements dealing with the State
border, the argument in Romania’s written pleadings falls at the first hurdle. These instruments
simply do not deal with any question relating to the delimitation of the continental shelf or the
EEZ. There is nothing upon which the provisions in question could bite 4. As regards the 1997
Exchange of Letters, as ProfessorQuéneudec explained, once the negotiations had failed, all that
the Exchange of Letters provides is that the question of delimitation of the continental shelf and the
EEZs shall be referred to this Court.
Sketches and maps: general consideration
8. I turn now to the question of maps. Romania has sought to bolster its assertion of a
pre-existing agreed boundary deriving from the 1949 agreements, by reference to a whole series of
sketches and charts of varying dates, quality and origin.
9. The Court’s case law gives useful guidance on the weight, or lack of weight, to be
attached to map evidence. We set out, in th e Counter-Memorial, paragraphs54 to 56 of the
Chamber’s Judgment in Burkino Faso/Mali (Frontier Dispute (Burkina Faso/Republic of Mali) ,
2RM, paras. 7.5-7.6.
3
CR 2008/18, p. 44, para. 29 (Pellet).
4CMU, paras. 5.98-5.102, and paras. 6.23-6.26. - 12 -
I.C.J. Reports 1986 , pp.582-583 (cited at CMU, para. 5.129)). For convenience, we have
reproduced the key paragraphs at tab 48.
10. The Chamber’s decision in Burkina Faso/Mali is widely acknowledged to be a classic
statement on the weight to be given to maps. You referred to it recently in Nicaragua v. Honduras
(Territorial and Maritime Dispute between Ni caragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment of 8October2007, paras.209-219) . In Burkina Faso/Mali,
the Chamber referred to the “considerable degree of caution” with which maps have traditionally
been treated in judicial decisions ( I.C.J. Reports 1986, p.583, para.56). I shall quote just three
sentences from paragraph54 of the Judgment, in which the Chamber was confining itself to
principle. It said, “Whether in frontier delimitations or in international territorial conflicts, maps
merely constitute information which varies in a ccuracy from case to case. ” The Chamber then
referred to maps which “fall into the category of physical expressions of the will of the State or
States concerned”, such as “when maps are annexed to an official text of which they form an
integral part”. It continued, in the last senten ce of paragraph54: “Except in this clearly defined
case, maps are only extrinsic evid ence of varying reliability or unreliability which may be used,
along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.” As
the Chamber said at paragraph56, “maps can.. . have no greater legal value than that of
corroborative evidence endorsing a conclusion at which a court has arrived by other means
unconnected with the maps” (ibid., p. 583).
11. Madam President, this caution was equally apparent in Nicaragua v. Honduras. Here
you were concerned with the evidential value of maps in confirming sovereignty over certain
islands (Territorial and Maritime Dispute between Ni caragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment of 8 October2007, paras.209-219). None of the maps was
“part of a legal instrument in force nor more specifically part of a boundary treaty concluded
between Nicaragua and Honduras” ( ibid., para. 218). You concluded that you could “derive little
of legal significance from the official maps submitted and the maps of geographical institutions
cited” (ibid., para. 217).
I12. Malaysia/Singapore, you were referred to nearly 100 maps. This was, again, in the
context of territorial sovereignty, not maritime boundaries –– the two are very different, especially - 13 -
as regards the accuracy to be expected of their depiction on maps. The parties in
Malaysia/Singapore agreed “that none of the maps establish title in the way, for instance, that a
map attached to a boundary delimitation agreement may” ( Sovereignty over Pedra Branca/Pulau
Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) , Judgment of 23May 2008,
para.267). You nevertheless attached some si gnificance to six of the maps, published between
1962 and 1975, which contained annotations that the Court held to be “clear” and to “support
Singapore’s position” ( ibid., para.271). The Court thus regard ed them as an indication that
Singapore had sovereignty over Pe dra Branca/Pulau Batu Puteh ( ibid., para.275). Having said
that, it would seem that the maps, relied upon in co nnection with territorial sovereignty, played
only a secondary role 5.
13. For present purposes, I would suggest that two conclusions may be drawn from
Malaysia/Singapore. First, the Court reaffirmed the a ll-important distinction between maps
annexed to boundary agreements, a nd other maps. The latter may ha ve only a confirmatory role;
they may confirm a result reached upon the basis of other evidence. Second, the six maps which
were considered of some significance, were considered significant because they contained
annotations which the Court held to be “clear” as regards Singapore’s sovereignty over Pedra
Branca Pulau Batu Puteh. That is all far rem oved from the charts upon which Romania seeks to
rely in the present case. They do not concern sovereignty over land territory. Most of them were
not published officially by the Soviet Union or Ukraine. And those that were do not contain
similarly “clear” annotations.
14. Madam President, I now turn to the vari ous sketches, maps and charts relied upon by
Romania. None, in our submission, gets near to establishing what is now asserted, that in 1949
Romania and the Soviet Union agreed on a maritime boundary extending beyond their respective
(or in the case of Romania, prospective) 12-mile territorial seas, thus allocating maritime zones not
then claimed or even under consideration for claim by the Parties.
15. In accordance with your case law, I shall first look at those maps or sketches which are in
some way related to the 1949 Agreements. Here th ree sets of maps or sketches are at issue:
5They are referred to, and briefly at that, in one of the separate and dissenting opinions, that of
Judge ad hoc Dugard (ibid., para. 24). - 14 -
map 134 itself ⎯ which you have already seen ⎯; the sketches included in the procès-verbaux of
the individual border marks 1438 and 1439; and plates I and V.
Map 134
16. First, then, there is the map (Karta) referred to in the general procès-verbal and annexed
thereto. That is map 134 [put map 134 on screen]. It is now on the screen and it was at tab 15 of
your folders for Tuesday. Map 134, in so far as it was intended to indicate the State border beyond
point 1439, shows the approximate point where that border would end when, as anticipated,
Romania extended its territorial sea to 12 miles.
17. It will be seen that the border runs along the outer limit of Ukraine’s territorial sea
around Serpents’ Island, which is depicted on map 134, and stops at a point whose co-ordinates are
approximately 30° 02' 18" E, 45° 5' 25" N.
18. I think it is common ground between the Parties that map 134 is one of the maps referred
to at point 1 in the list at the end of Volume III of the general procès-verbal. That list is headed
“The following documents are attached to this Prot ocol”, and point 1 reads: “Maps of the state
border between the USSR and the RPR at a scale of 1:25,000”.
19. While, unlike the other maps, including map 133, the scale of map134 is in fact
1:150,000, this is explicable because it covers a maritime area and did not need to be on the same
scale as the land maps. But it is not, as I have said, disputed that map134 is among the maps
referred to under the heading in the Protocol.
20. The main heading at the top of map 134, Russian to the left and Romanian to the right,
reads “maps of the State Border [ ⎯ State Border ⎯ ] between the USSR and the People’s
Republic of Romania”. That, I would suppose, appears on all the other maps as well. Between the
Russian and the Romanian headings, there is anothe r, smaller heading reading (in both languages):
“Border Marks from No. 1438 to No. 1439”. Prof essor Crawford rather conflated these two
separate headings when he said, last week, that the map is entitled “map of the State Border
between the Union of Soviet Socialist Republics and the People’s Republic of Romania from
border signs No.1438 to No. 1439” , and concluded from this that the purpose was only to depict - 15 -
“the boundary between those two border signs and nothing else” . The primary purpose of the map
was to depict the location of the two border posts. But it also showed the State border.
21. As we have pointed out in the written pl eadings, whereas the depiction of the mainland
continues right to the lower edge of the map, the map depicts the State border at sea, the final point
of which stops short of the bottom of the map. There is no indication that the State border was
intended to continue any further along the outer limit of the territorial sea. There is no such
indication, either in words, or by an arrow pointing in the desired direction, or in any other way. In
short, map134 depicts a border which ends only a short distance along the outer limit of the
territorial sea around Serpents’ Island.
22. Romania has suggested that, if significance had been attached to the final point depicted
on map 134, the Parties would not have hesitated to describe with precision that one last point. The
same applies, of course, to the failure of the Parties to describe with precision ⎯ or even to
mention ⎯ anywhere in the documentation a final point such as Romania’s “point X”. But it is not
difficult to see why the Parties did not, in 1949, specify precise co-ordinates of the final point
foreshadowed in map134. The Parties were seeki ng to establish the State border. The “State
border” would only go as far out to sea as the point at which the outer limit of the Soviet Union’s
12-mile territorial sea intersected with the outer lim it of Romania’s prospective 12-mile territorial
sea, which happened shortly afte rwards. Pending the establishment of Romania’s 12-mile
territorial sea, it was not possible to give precise co-ordinates for the point of intersection ⎯
although its approximate location could be ⎯ and was ⎯ indicated on the map.
23. I will not deal with all of Romania’s attemp ts to explain away the fact that the agreed
border line on map134 ends a short distance round the outer limit of Ukra ine’s territorial sea
7
around Serpents’ Island. We have answered them point by point in the Counter-Memorial .
24. It is a fact that the border line does stop short of the edge of the map, whereas the
relevant mainland coast continues to the edge of the map. The line stops where it does. Romania
has pointed to nothing to suggest that it was nevertheless intended to continue further.
6
CR 2008/19, p. 30, para. 26.
7CMU, paras. 3.25-3.48. - 16 -
25. Romania says that “in any case, such a conclusion [i.e., that the endpoint of the map’s
line was the final point of the agreed boundary] woul d be inconsistent with the clear terms of the
instrument to which it was annexed”. But there are no “clear terms” in the 1949 general
procès-verbal which say anything about the final point of the State border being at “point X”.
26. Next, Romania argues that, because map 134 does not depict all the mainland features in
any detail, even though there was ample room to do so, no weight should attach to the gap between
8
the end of the boundary line as depicted and the edge of the map . This argument ignores the fact
that the purpose of the map was to depict the loca tion of the State border marks. It was a State
border map. It showed the agreed State border, along with such other detail as was relevant.
27. A comparison of three depictions of the State border line along the outer limit of the
territorial sea around Serpents’ Island is very re vealing [show on screen]. They are now on the
screen ⎯ and they are also at tab49. They are [poi nt to them] first, the distance along the outer
limit of the territorial sea depicted on map134; second, the equivalent distance depicted on the
chart submitted by Romania in 1997 when notifyi ng its straight baselines to the United Nations,
and third, the equivalent distance to pointF. They are similar. The two later depictions are
expressly related to the outer limit of Romania’s territorial sea. It seems clear that, with due
allowance being made for uncertainties surroundi ng the precise extent of Romania’s 12-mile
territorial sea in 1949, and the extension of th e Sulina dyke, map 134 was intended to foreshadow
the same point.
9
28. ProfessorCrawford addressed map134 at some length last week . He even suggested
that “Ukraine bases its whole case in relation to this issue on the fact that the boundary depicted on
the 12-mile arc around Serpents’ Island on map 134, terminates short of the edge of the map,
leaving a gap” 10. This is not so, far from it, as I have already set out our main submission on the
issue, that Romania has failed to meet the burden that rests upon it if it is to show the existence of
an agreed all-purpose line.
8
RR, para. 4.57.
9
CR 2008/19, pp. 30-31, paras. 26-30.
10Ibid., p. 31, para. 29. - 17 -
29. In response to our point that the border around the outer limit in map134 ends
approximately where pointF now is, ProfessorCrawford pointed to the fact that the depiction on
the same map of the State border to the west of point1438 is not shown as going all the way to
point 1437, notwithstanding that there is undoubt edly a border between points 1438 and 1437. He
said that it would be absurd to suggest that the absence of the depiction of a border line there means
11
that the border to the west only extends as far as is shown in map 134 . Indeed it would be absurd.
The border between points 1437 and 1438 is shown on a different map. It is shown on map 133. It
was obviously not necessary to show on our map the border all the way back to 1437.
[Remove from screen]
Sketches in the PVs
30. Next, I would invite the Members of the Court to look at the sketches included in the
individual procès-verbaux for border marks Nos. 1438 and 1439 (these are at tab 50 in the folders).
And I can deal with them very briefly. Professo rCrawford drew attention to them last week,
inviting you to conclude that “[w]hat map 134 and the sketches together sh ow is an interstate
12
boundary going around the 12-mile arc and not st opping at any defined or stipulated point” . As
we explained in the written pleadings, the sket ches in the individual procès-verbaux, whose
purpose was simply to describe the position of the bo rder marks, are pretty unreliable for any other
purpose. We certainly would not follow Prof essorCrawford’s argument that the carefully
13
constructed map 134 should, as he put it, “be treated as subordinate” to these sketches .
Plates I and V
31. Finally, as regards contemporaneous maps or sketches, Romania included in its Reply
plates I and V. These can be found at tab51 in the folders. They are described at “schematic
sketches”. They are on a far smaller scale than map134 and the other maps showing the border
marks. In fact, they are on a scale of 1:1,500,000 and 1:500,000 respectively. They are not among
the maps referred to as “documents... attached to this Protocol” in the general procès-verbal.
1Ibid., p. 31, para. 30.
12
Ibid., p. 28, para. 19.3.
1Ibid. - 18 -
14
Professor Crawford said that they were “included in the catalogue” . It is not entirely clear what
he meant by this. We were told in the Reply th at they had been “discovered” since the completion
15
of the Memorial . In any event, they are not actually referred to in the text of the procès-verbaux.
32. These two plates are said by Romania to “depict the boundary around” Serpents’ Island.
Quite apart from their dubious status, they do not do so. Both of them, like map 134, only depict a
line going a short way along the outer limit of the territorial sea around the Island. Romania further
asserts that the two plates “clearly depict the boundary on the 12 nautical-mile arc around Serpents’
Island, with areas appertaining to Romania on the other side of the line”. That is simply not the
case. The territorial sea around Serpents’ Island is indeed identifiable on both plates, but neither
includes any indication that the water column or the sea-bed to the south of the outer limit
appertains to Romania.
33. ProfessorCrawford relied heavily on these tw o sketches, in so far as they depict a line
extending somewhat further than that in map 134. We have set out in the Rejoinder a whole raft of
reasons why little weight attaches to these sk etches, and I shall not repeat them here 16. I shall just
mention one. ProfessorCrawford’s response to all the points in the Rejoinder is simply that the
sketches “form part of the catalogue, which itself forms part of the overall delimitation
agreement” 17. But their “inclusion” in a “catalogue” says nothing about their significance. For
that, one has to look at their purpose, and what, if anything, the text of the agreement says about
them. In fact, as we explained in the Rejoinder, ne ither sketch was prepared in order to depict the
border. The purpose of plate I was to show which of the two States was responsible for the
demarcation work in each of eight sectors. The pur pose of plate V was merely to provide a key to
the areas covered by the maps 18.
34. In our submission, the plates are of no va lue in determining how far “along” the outer
limit around Serpents’ Island the State border agreed in 1949 was to extend. The primary map in
14Ibid., p. 31, para. 31.
15
RR, para. 4.65.
16
RU, paras. 3.35-3.37.
17CR 2008/19, p. 32, para. 34.
18RU, para. 3.36 (e). - 19 -
this context, as even Romania appears to accept, is the map ⎯ map134 ⎯ referred to in the
relevant part of the 1949 procès-verbal.
35. In short, Romania has produced no contem poraneous evidence that an agreed maritime
boundary extended as far as its alleged “point X” or indeed any distance beyond point 1439. It is
Romania which has access to and possession of the available material relating to the
1949procès-verbal. It is significant that Roma nia has failed to point to any contemporaneous
evidence that Romania and th e Soviet Union agreed on an all-purpose maritime boundary
extending along the outer limit of the territorial sea “point X”. Even Romania admits that the 1949
procès-verbal depicted the maritime boundary as running, “around the 12-mile arc surrounding
Serpents’ Island to a point undefined, in the te xt, by geographical co-ordinates. Nor did the
subsequent boundary agreements concluded between Romania and the Soviet Union identify this
19
point by geographical coordinates.” The same is true of the individual procès-verbaux for the
border marks, in respect of which Romania admits, “[ i]t is true that the final point of the boundary
following the arc of circle around Serpents’ Island is not specified in any of the procès-verbaux and
20
is not shown on any of the sketch maps” .
Non-contemporaneous maps
36. Madam President, I now turn to the second category of maps, the non-contemporaneous
maps that Romania relies upon, to confirm the result it claims to have reac hed on its interpretation
of the 1949Agreements. None is referred to in the Agreements or even in diplomatic
correspondence between the Parties. In our s ubmission, these non-contemporaneous maps provide
no evidence of what the 1949 general procès-verbal meant. Nor indeed do they establish any
subsequent agreement between the Parties regarding its interpretation.
37. I shall not take you through the maps in Romania’s map atlas one by one. With the
exception of the late filed Soviet map, No. 552, we have set out detailed comments on each of them
21 22
in the Counter-Memorial and the Rejoinder .
1MR, paras. 11.51-11.52.
20
RR, para. 4.43.
2CMU, paras. 5.127-5.215.
2RU, paras. 3.52-3.103. - 20 -
38. I shall, however, make some general points concerning the use of symbols on
navigational charts (“symbology”, as I understand car tographers call it). And then I shall say a
word about one or two of the maps, in particular the newly introduced Soviet map from 1957.
39. It is a feature of some of the maps that they highlight the presence of Serpents’ Island by
what I shall call a “hook” (to use a non-technical term), shown as going varying distances around
the outer limit of the island’s 12-mile territorial sea to the south and east of the island. Romania
appears to attach huge importance to these “hooks” (which are depicted with varying lengths and
symbols), the “hooks” are depicted on some charts (the majority published by third parties or
Romania itself), but not on others ⎯ not, for example, on the currently available British Admiralty
Chart of the area 23 ⎯ Romania seeks to argue that the depiction of these “hooks”, “confirms” that
there already exists an agreed boundary between the Parties deli miting Ukraine’s territorial sea, on
the one hand, and maritime zones appertaining to Romania, on the other. In our submission, the
depiction of a “hook” on some charts does nothing of the sort. Charts are the work of
hydrographers and cartographers, not lawyers or diplomats. Not all hydrographers and
cartographers are necessarily aware of the niceties of current legal disputes, or even of their
existence.
40. The earliest charts that Romania has produced showing a “hook” are the two Soviet
charts from 1957 ⎯ that is some eight years after the 1949Agreements. There may have been
many reasons, in 1957, for including on the charts a clear and visible depiction of the Soviet
Union’s 12-mile territorial sea around Serpents’ Island. Among these reasons, not the least could
have been Soviet security concerns. The charts ar e intended for navigation, by ships of all kinds.
Serpents’ Island is a prominent island in the Black Sea. It belonged to one of the two superpowers,
the Soviet Union. The earliest charts showing a “hook” were produced by the Soviet Union at the
height of the Cold War. Vessels heading north into the Black Sea would surely need to be alerted,
unambiguously, to the fact that the Soviet Un ion had a 12-mile area of territorial sea around
Serpents’ Island, in which innocent passage, as understood at the time by the Soviet Union, not
freedom of navigation, was the rule. The Black Sea was a sensitive area. Serpents’ Island had a
23
Black Sea Romania and Ukraine, Gura Sfîntu Gheorghe to Dnistrov’ski Lyman. - 21 -
significant military presence. I would recall that in 1960, upon ratifying the Territorial Sea
Convention, the Soviet Union declared that it cons idered “that the coastal State has the right to
establish procedures for the authorization of the p assage of foreign warships through its territorial
24
waters” . Romania made a similar declaration. These countries would be particularly sensitive to
foreign State ships, including submarines, which of course are required to navigate on the surface
25
and to show their flag in the territorial sea , coming near their territorial sea. I note that
Romania’s Territorial Sea Decree from 1956 ⎯ we looked at it yesterday ⎯ provides that “foreign
submarine ships in immersion in the territorial waters of the People’s Republic of Romania shall be
followed and destroyed without warning” 26. Clearly the States concerned did not want foreign
vessels entering their territorial seas inadvertently.
41. The 1957 “hooks” reappear on some later char ts. As is the way with maps and charts,
they often simply copy earlier ones. Indeed, I understand that hydrographic offices routinely use
data from other hydrographic offices under formal agre ements. This “copycat effect” is only to be
expected. Those who draw up charts do not start with a blank sheet of paper. They base
themselves on existing charts and data.
42. Romania also draws attention to other symbols used on the various charts it has selected,
issued by various technical services over a longish period. The most one can say about the
proliferation of symbols is that the charts show a considerable de gree of confusion and
inconsistency. Moreover, the use of symbols on ch arts has varied over time, and it varies between
the various issuing authorities, symbols are not always a reliable guide to the real position. The
lack of consistency is compounded by what I have referred to as the “copycat effect”. In my
submission, nothing of significance can be read into the symbols for the purposes of this case.
Certainly the far-reaching conclusions that Romania seeks to draw from them are unjustified.
43. Madam President, Romania relies inter alia upon a small number of Ukrainian charts and
publications. They have even recently submitted to the Court a picture book entitled Lighthouses
of Ukraine, which includes a graphic showing a “hook”. They have tried to make much out of the
2See Multilateral treaties deposited with the Secretary-General of the United Nations.
25
UNCLOS, Art. 20.
2MR, Ann. 81, Art. 8. - 22 -
symbols on one Ukrainian chart in particular, dating from 2001. As for that, I would merely note
that it is a one-off chart. Its purpose, like all the other charts, is to aid navigation, not to show
political borders. For all we know, the cartogra pher may have read too much into the “hooks”
which he found on earlier charts. If so, he was in error. There is no later chart before the Court
with similar markings. In any event, the 2001chart predated the conclusion of the 2003 Border
Treaty, in which the Parties finally agreed on the co-ordinates of pointF; any relevance it might
have has been overtaken.
44. Madam President, it involves a great leap to say that, because certain publications of
technical Ukrainian bodies have, from time to time, included an ambiguous symbol, a “hook”,
Ukraine has made an “admission against interest”. “PointX” simply played no part in the
diplomatic relations of the Parties, and it could not suddenly become a reality because of symbols
placed by cartographers on a few charts. It is important to remember that the essential purpose of
the charts was an aid to navigation or, in some c ases, they were sketches to accompany projects, or
in one case even an illustration in what looks like a “coffee table book”. They were not prepared
for diplomatic purposes, or as an official depiction of State boundaries. In any event, in so far as
some of Ukraine’s charts and publications depict a “hook”, they would all seem to go back to the
Soviet charts of 1957, the likely significance of which I have already discussed. Depiction of a
“hook” on certain sketches and charts can in no way be interpreted as an “admission” by Ukraine
that there was an agreement in 1949 on a pr e-existing all-purpose maritime boundary, as urged by
Romania.
45. I said I would say a word about Soviet map No. 552, since this was admitted late and is
not dealt with in our written pleadings. It dates from 1957. It is the second edition of a Soviet
chart first published in 1951. It is one of the two charts from 1957 to depict the “hook”, the first
maps to do so that have been produced to the Court. Nineteen fifty-seven, as I have said, was some
eight years after the 1949 agreements. Map552 adds nothing significant to Romania’s case. I
would recall, however, that Romania has not submitt ed the original 1951version of this map. In
this connection, you will recall that the other map provided by Romania, from 1957, a Soviet
map— map500— was also a second edition. Ukrain e, however, subsequently located the first
edition, the 1951 edition of that map, which cont ained no “hook”. That first edition was obviously - 23 -
more nearly contemporaneous with the 1949agreements, and in our submission undermined any
value that Romania might seek to attribute to the later 1957 edition. We have not, unfortunately,
succeeded in locating the 1951 version of the late en try, Soviet map 552. But I would respectfully
suggest that, like map500, the value of that 1957map552 as an aid to interpreting the
procès-verbal is zero.
(iv) Inconsistency of Romania’s claim with the Parties’ own actions and recent agreements
46. Madam President, Members of the Court, I now turn to my last point, and this will be
very brief: the inconsistency of Romania’s asser tion of a pre-existing maritime boundary with its
own action, or inaction, and with recent agreements between the Parties.
47. In our submission Romania’s own subseque nt actions, or inactions, confirm that there
was no pre-existing agreement between the Parties on the delimitation of the shelf or EEZ –– and I
shall just list them.
(a) Legislation
48. First, as I mentioned at the outset, Romania’s own legislation confirms that the
1949 agreements did no more than delimit the territorial sea. The Romanian Territorial Sea Decree
of 1956 stated that “the territorial waters of Romania... are delimited in the Black Sea by a line
determined by agreement between [Romania and th e Soviet Union]”. Romania’s EEZ Decree of
1986, as you will recall, on the other hand makes no reference to any EEZ delimitation having been
agreed.
(b) UNCLOS
49. Second, during the Third United Nations Conference on the Law of the Sea in the 1970s
and early 1980s, Romania made prolonged efforts to secure a provision that would have included
Serpents’ Island within the scope of Article 121, paragraph 3, of the Convention. These efforts will
be described by my colleague, Ms Malintoppi. They would have been pointless if there had been a
pre-existing agreement, and are thus incompatible with the position that Romania now adopts. - 24 -
(c) Bilateral negotiations
50. Third, during the negotiations leading to the Exchange of Letters of 1997, setting out the
principles for the negotiation of a delimitation agreement, Romania made no mention of the idea of
a pre-existing agreement between the Parties covering part of the line to be delimited. Indeed, as
we have said, Romania took precisely the opposite position. There is, of course, no hint of any
such pre-existing agreement in the text of the Exchange of Letters itself.
(d) Petroleum and coastguard activities
51. Fourth, the significance of petroleum and coastguard activities in the relevant area will
be dealt with next in a little more detail by MsMalintoppi. It is significant that they give not the
slightest indication that Romania thought there was a pre-existing continental shelf or EEZ
boundary.
Conclusion
52. Madam President, Members of the Court, my conclusion is simple. Romania has not
discharged the heavy burden that it bears if it is to establish that the Parties agreed, in 1949 or
subsequently, on an all-purpose maritime boundary going around the outer limit of Ukraine’s
territorial sea around Serpents’ Is land to “pointX” or “thereabouts”. Romania has not provided
any evidence, let alone compelling evidence, of any such agreement. They could not do so,
because no such agreement exists.
Madam President, Members of the Court, that concludes my presentation. I thank you for
your patience. I would request that you invite Ms Malintoppi to continue our case. Thank you.
The PRESIDENT: Thank you, Sir Michael. We now call Ms Malintoppi.
Ms MALINTOPPI: Thank you, Madam President.
VII. P ETROLEUM AND COASTGUARD ACTIVITIES
I. Introduction
1. Madam President, Members of the Court, it is an honour and a great privilege to appear
again before you and to represent Ukraine in this case. It falls to me this morning to address the
Parties’ arguments relating to their petroleum licensing activities and coastguard operations. - 25 -
2. But before I discuss these activities, some introductory remarks are necessary in light of
the oral arguments introduced by Romania last week.
3. It is important to emphasize that Ukraine does not point to this conduct of the Parties in
order to show the existence of a lin e arising from a tacit agreement or a modus vivendi. For
Ukraine, the significance of this aspect of the case is twofold: first and foremost, as SirMichael
has just mentioned, the Parties’ conduct is funda mentally inconsistent with Romania’s argument
that there was a pre-existing maritime delimitation in the disputed area extending out to “point X”;
and, second, the lack of any comparable operations by Romania in the disputed area at a minimum
is incompatible with the claim that Romania advances in these proceedings.
4. In this context, it is no accident that the notion of effectivités was never mentioned before
in this case by either Party, and at least until Romania’s first round presentation last week. Ukraine
is not relying on its petroleum and coastguard activities as acts à titre de souverain establishing a
de facto line, but as considerations that, in its submis sion, should be taken into account in order to
assess the claims of the Parties in relation to their actual conduct.
5. As to the notion of a critical date, another legal concept borrowed from territorial disputes,
27
this has also been introduced in a novel way during Romania’s first round presentation . It is true
that there had been a passing reference to a critical date in the Reply, but there Romania fixed the
critical date at 1997, at the date of the 1997 Exchange of Letters 28. The date has now been pushed
back to November 1995, from the date of an exch ange of correspondence between the Parties that
took place at that time, but the reasons for this change of heart are not given.
6. This discussion of the critical date is baff ling, not only because the issue is introduced by
Romania so late in the case, but also because the date chosen, 1995, is a date of no particular
significance in the history of this dispute. It wa s not until 1997 that the Parties even agreed on the
principles for the conduct of their negotiations. It is evident that the dispute had not crystallized in
1995, or even in 1997. Even assuming that there was a critical date at all, and that the critical date
would have a role to play in ma ritime delimitation, it is the date of Romania’s Application:
16 September 2004.
27
CR 2008/20, pp. 60-61, paras. 13-15.
28RR, p. 165, para. 5.106. - 26 -
II. Description of the relevant activities
7. With these caveats in mind, I shall now turn to the relevant factual background.
8. Ukraine has shown in its written pleadings that it has been Ukraine, not Romania, which
has awarded licensing rights and conducted surve illance patrols on a regular basis in the area now
29
disputed by Romania .
(a) Oil and gas activities
9. First, the petroleum activities. In orde r to illustrate Ukraine’s licensing of petroleum
activities, notably in respect of the exploration of hydrocarbons, we are projecting on the screen a
map, which is also under tab 52 of the folders, which depicts the limits of the oil and gas licences
granted by Ukraine in relation to the boundary lines claimed in these proceedings.
10. The location of the Ukrainian licences–– the Delphin, Olympiiska and the Gubkina
blocks–– is shown on the map. The licence area of the Delphin block is depicted as a rectangle
straddling Romania’s claim line, and extending into the area of the Parties’ overlapping claims.
Rights to this particular area were awarde d in 1993 under a licence agreement between the
Ukrainian State Committee on Geology and the Utilization of Mineral Resources and a joint
venture between the Crimean State Property Fund and J. P. Kenny, a United Kingdom company 30.
11. The second concession, the Olympiiska block, covering about 120 sq km, was granted to
the Ukrainian company Chornomornaftogaz by the Mi nistry of Ecology and Natural Resources of
Ukraine in 2001 for the exploration of petroleum in an area lying closer to the western limit of
31
Ukraine’s continental shelf . The licence area is depicted as a rectangular block falling entirely
within the area in dispute on the map on the screen.
12. In 2003, the Ministry of Ecology and Natural Resources of Ukraine granted a further
licence to the same Ukrainian company 32. This licence concerned rights in respect of hydrocarbon
resources in the Gubkina block, an area of 456 sq km lying in the northern part of the maritime area
29CMU, Chap. 8, Sect. 2; and RU, Chap. 6, Sect. 4.
30
The licence agreement is reproduced in CMU, Ann. 97.
31The licence is reproduced in CMU, Ann. 98.
32A copy of the licence is reproduced in CMU, Ann. 99. - 27 -
now in dispute, straddling the southern limit of the te rritorial sea of Serpents’ Island. It is depicted
as a narrow rectangle partly straddling Romania’s claim line.
13. The existence of these licences demonstrat es that Ukraine, both before and after the
1997 Exchange of Letters, authorized activities relating to the exploration of oil and gas deposits in
areas of the continental shelf to which Romania lays claim in these proceedings.
14. In sharp contrast to Ukraine’s practice, Romania cannot point to any comparable
conduct. This is striking in light of the argument advanced for the first time in this litigation that
Romania and the Soviet Union had agreed in 1949 that the limit of Ukraine’s sovereign rights over
maritime areas should be restrict ed to a 12-mile arc surrounding Serpents’ Island to “pointX”.
Had such an agreement existed, surely it would have been reflected in Romania’s subsequent
practice in respect of petroleum operations. And yet, Romania’s practice shows nothing of the sort.
15. In fact, Romania has not produced any licensing agreements or other documentation
evidencing the terms of the concessions that it has gr anted in respect of offshore areas in the Black
Sea. However, the firm Petroconsultants published a map in 1998 which shows that the location of
the blocks apparently licensed to both Romanian and international oil companies has no relation to
the line claimed by Romania in these proceedings.
16. We are now projecting on the screen a copy of the Petroconsultants map, which is also at
tab53 (CMU, fig.8.8). The four blocks licensed by Romania are depicted and labelled, running
from north to south: Pelican, or block XII, which is marked as having been licensed to the United
Kingdom oil company Enterprise Oil; Istria , which was licensed to the Romanian State-owned
company Petrom; Midia, or block XV, which was licensed to Enterprise Oil; and Neptun, the
block lying to the south-east, which was licensed to Petrom.
17. If we now project on the screen the sketch-map depicting the limits of both Parties’ oil
33
and gas licences in the area of overlapping claims, which is also under tab 54 , it is apparent that
the line corresponding to the eastern limit of the blocks licensed by Romania up until 1998 bears no
relation to its claim that Romania’s continental shelf lies to the south and east of a 12-mile arc of
territorial sea around Serpents’ Island. In fact, as it is evident from this sketch, the outer limit of
33
CMU, fig. 8.7. - 28 -
the blocks stays well clear of an imaginary 12-mile arc and does not correspond to Romania’s
claim at all.
18. In its Reply, Romania has argued that the concessions depicted on this map “represent
34
only a minor part of the activities performed by Romania in the delimitation area” . Romania
added that “Romanian activities in the area date since the 1960s...” 35 and that “[e]ver since
extended seismic profiles have been carried out in an area whose outer limit coincides almost
36
exactly with the maritime boundary claimed by Romania in the present proceedings” . The
Co-Agent of Romania maintained this position although now he appears to have placed the starting
37
date of Romania’s alleged exploration activities in the 1970s . It is worth mentioning that,
curiously, Romania relies on secondary sources for this information ⎯ the authority cited is a study
published in 2000 by the magazine Marine Geology ⎯ rather than relying on its own records 38.
19. Romania’s statements remain mere assertions as, remarkably, no documentary evidence
of any probative significance has been filed to subs tantiate them. The map projected on the screen
by Romania’s Co-Agent last Friday, which ha d been filed by Romania as figureRR26 of its
Reply, provides a good example. We will show it again on the screen now. The sketch is not dated
and the source is not provided. It is not a paragon of clarity, to say the least, as a number of lines
have been superimposed onto the map, along with symbols representing exploratory wells. It is
unclear when the claim lines and the “well” symbol s were superimposed on this map. There is no
indication whatsoever in the document filed by Romania when the alleged seismic profiles were
carried out, by whom, on whose authority. The Co-Age nt of Romania shed no further light in this
respect last week. He simply stated that these profiles “resulted from intense exploration activities
39
in the 1980s and 1990s” .
20. But to the extent that Romania’s oil and gas activities can be ascertained in the disputed
area on the basis of third party sources, the out er limits of its concession blocks appear to
34RR, p. 255, para. 7.33.
35
RR, p. 256, para. 7.34.
36
RR, p. 256, para. 7.34.
37CR 2008/21, p. 28, para. 30.
38CR 2008/21, p. 28, para. 30.
39CR 2008/21, p. 28, para. 29. - 29 -
40
correspond to what is depicted on the screen, in green, and at tab54 . If it is true, as Romania
contends, but does not prove, that “its conduct regarding oil and gas activities was performed
during a reasonably extended period of time (mor e than 40years) and is characterised by
uniformity, continuity and constancy” 41, the location of Romania’s concession blocks certainly
gives no credence to Romania’s theory that a maritime boundary had been settled in 1949, between
the Soviet Union and Romania, out to “pointX” . Had there actually been such a pre-existing
agreement, such a line ⎯ and the areas lying south of it ⎯ could have been expected to have been
reflected in connection with the outer limit of the concessions. As can be seen from the map on the
screen, that was not the case. This line bears no relation to the line claimed by Romania in these
proceedings.
(b) Coastguard activities
21. I shall now turn to a brief description of the activities of Ukraine’s coastguard in the area
of concern.
22. As discussed in Ukraine’s written pl eadings, on 7 November 1995, the Ukrainian
Ministry of Foreign Affairs informed Romania through diplomatic channels that it was prepared to
negotiate an agreement on the delimitation of the Parties’ continental shelf and exclusive economic
zone. The letter specified that, pending a final determination of the maritime boundary between the
Parties, Ukraine’s exclusive ec onomic zone in the south-western part of the Black Sea was
delimited by a provisional line passing through specific geographical co-ordinates 42. It is clear
from the terms of this letter that Ukraine consider ed that only areas lying to the south and west of
the line defined by those co-ordinates could be in dispute.
43
23. As recalled in the Parties’ pleadings , Romania replied to this letter and rejected the
validity of this provisional line. However, Romani a has not alleged that, in its response, it stated
that Ukraine’s line was invalid because of a previous existing maritime delimitation in the area. On
the contrary, as recalled by Ukrain e’s Agent, Romania’s view was that there was no agreement on
40CMU, fig. 8-7.
41
Ibid., p. 256, para. 7.37.
42Ibid., Ann. 26.
43Ibid., p. 217, para. 8.62 and RR, p. 260, para. 7.41. - 30 -
the delimitation of the continental shelf or excl usive economic zones between the former Soviet
Union and Romania.
24. The provisional line was also communicated to third States. For example, subsequent to
several incidents in which Bulgarian fisherme n were intercepted while fishing illegally in
Ukraine’s EEZ, the Bulgarian Embassy in Kyiv contacted the Ministry of Foreign Affairs of
Ukraine, and Ukraine responded on 19November 2002, confirming that, until an agreement with
Romania was reached, the limit of Ukraine’s EEZ in the south-western part of the Black Sea was
provisionally being limited by the same line 4.
25. The record shows that negotiations with Romania continued subsequently. The record
also shows that Romania neither demonstrated any interest in patrolling the area lying on the
Ukrainian side of this line, nor did it ever object to the fact that the Uk rainian coastguard assumed
the sole responsibility of intercepting illegal fishing vessels and, when possible, escorting them out
of Ukraine’s exclusive economic zone and taking any other appropriate measures.
26. In its written pleadings, Ukraine described several incidents in which the Ukrainian
coastguard intercepted Turkish and Bulgarian fish ing vessels caught illegally fishing in Ukraine’s
EEZ, now claimed by Romania in these proceedi ngs. Documentary evidence of these incidents,
notably diplomatic Notes to the respectiv e Governments, was filed with Ukraine’s
45
Counter-Memorial . Lest there be any doubt regarding the continuous and constant presence of
the Ukrainian coastguard in this ar ea, Ukraine also filed with its Rejoinder statements of several
46
members of the Ukrainian coastguard , which confirm, beyond any doubt, that it has been Ukraine
and not Romania, that has exercised sovereign righ ts in the exclusive economic zone contemplated
by Article 73 of the Law of the Sea Convention.
27. The map now on the screen, and at tab 55, depicts the location of several of the incidents
involving the Ukrainian coastguard and Turkish an d Bulgarian fishing vessels. The number of
incidents represented on this sketch illustrates the vigilance exercised by the Ukrainian coastguard
44
CMU, Ann. 103.
45
Ibid., Anns. 104-110.
4RU, Anns. 13-19. - 31 -
in intercepting third-State vessels caught illegally fishing in these waters ⎯ activities that,
incidentally, were carried out at considerable expense to Ukraine.
28. In contrast, Romania carried out no patrolling of any kind and no Romanian fishing
vessels were detected by Ukraine in this area, not until 28April 2006, when an airplane of the
Ukrainian border service chased off Romanian fishing vessels, triggering a Romanian protest 47.
Again, this protest Note, it should be said, contains no hint of a pre-existing agreed boundary.
29. This sudden and recent interest by Romani a in the area, which only arose well after this
case commenced, does not detract from the fact that , prior to 2006, Romania’s attitude was very
different. Until April 2006, the Ukrainian coastguard had never encountered Romanian vessels in
the course of their interceptions of illegal fishing and, until that date, the Romanian authorities had
in no way opposed Ukraine’s surv eillance operations in maritime areas that Romania now claims
belong to it.
30. The attitude adopted by Romania in 2006 co mes too late to affect the Parties’ legal
positions as they stood when this case was initiated. Romania cannot improve its legal position by
new conduct inconsistent with its earlier behaviour. If anything, this new Romanian conduct
reveals a belated awareness by Romania of the weakness of this aspect of its case and a belated
attempt to improve its position.
III. Legal relevance of these activities
31. I shall now discuss the legal relevance of these activities.
32. The evidence on the record with respect to oil and gas activities ⎯ which, I would recall,
has been submitted only by Ukraine ⎯ demonstrates that, whereas Ukraine, since the granting of
the Delphin concession in 1993, has awarded rights in blocks situated in the area in dispute, this
has not been the case with Romania. On the contrary, Romania, in its licensing practice, appears to
48
have carefully respected the outer line that is now shown on the screen and that is also at tab 54 .
33. Romania’s rebuttal of Ukraine’s arguments hinges primarily on an analysis of the legal
relevance of oil and gas activities according to previous decisions of the Court and arbitral
47
RR, Ann. RR37; RU, p. 127, para. 6.100 and Ann. 12.
48RU, fig. 6.2. - 32 -
49
tribunals, and on the fact that Ukraine’s activities were protested by Romania . Romania also
contends that it refrained from pursuing exploration and exploitation activities in the area because it
50
confined its licences to an area which was not in dispute .
34. As to the first part of Romania’s arguments, Romania relies on the case law for the
proposition that oil concessions can be taken into account in maritime delimitations only if they
demonstrate a consistent behaviour displayed over a period of time and evidencing a tacit
agreement between the parties 51. However, in the present case, as I have just discussed, the
relevance of the Parties’ oil licensing practices ⎯ in particular, the outer limit of Romania’s
blocks ⎯ lies in the fact that it is scarcely consistent with Romania’s claims. The pattern of these
practices is also relevant when it is considered in conjunction with the activities and responsibilities
assumed by the Ukrainian coastguard ⎯ in respect of which Romania did not protest until this case
was initiated.
52
35. As regards Romania’s attempt to mi nimize the relevance of Ukraine’s activities ,
Romania relies in particular on paragraph 4 (f) of the 1997 Exchange of Lette rs. In this paragraph,
the Parties agreed to, in terms, “refrain from exploitation of the mineral resources of the zone
submitted to delimitation, the co-ordinates of whic h shall be established at the beginning of these
negotiations . . .”. However, the co-ordinates of such a delimitation zone were never established as
anticipated in the Exchange of Letters; the pr ovision excludes exploitation of petroleum resources
and has no bearing on exploration; and in any event, a number of the licences which I discussed
earlier (such as the Ukrainian Delphin block, and, according to Ro mania, the Romanian blocks)
were awarded before 1997, therefore before the Ex change of Letters. And the relevance of this
1997 Exchange of Letters is accordingly minimal.
36. With regard to Romania’s argument th at it “consistently objected to Ukraine’s
hydrocarbon activity” 53, these contentions are overstated since Romania’s objections were limited
to just two instances. And in contrast, no objec tions were voiced by Romania in respect of the
49CR 2008/21, pp. 11-15, paras. 4-12 and p. 26, para. 24.
50
CR 2008/21, pp. 29-30, paras. 32-35.
51
RR, p. 248, para. 7.7; CR 2008/21, pp. 16-19, paras. 14-19.
52RR, pp. 248-249, paras. 7.8-7.9.
53RR, pp. 252-255, paras. 7.21-7.31. - 33 -
constant exercise of Ukraine’s sovereign rights in the disputed zone by the Ukrainian coastguard
until 2006.
37. Romania also asserts that it did not carry out any exploration and exploitation activities
in the disputed area out of respect for the “gentle men’s agreement” referred to in Romania’s 1995
54
Note Verbale .
38. But, Madam President, if this self-impos ed abstention corresponds to reality, it seems to
have gone too far because, not only did Romania’s alleged activities not remotely correspond to its
present claim, but they also did not respect the so-called “all-purpose boundary” which Romania
asserts existed since 1949. It is true that caution in granting oil concessions is sometimes exercised
where negotiations are ongoing in the delimitation of the continental shelf and exclusive economic
zones. But, if an area is already delimited, as Romania contends, what is the need for this
“precautionary conduct” 55?
39. As to the patrolling operations, they have been undertaken exclusively by the Ukrainian
coastguard. The burden of conducting the hazardous and expensive role of surveillance of illegal
fishing in the maritime area now in dispute h as rested solely on Ukraine since 1995. These
activities have been consistent with Ukraine’s rights and duties as a coastal State.
40. Romania argued during its first round presentation that the probative value of the
affidavits of members of the Ukrainian coastguard filed with the Reply should be assessed in light
of the fact that they were prepared for the purpose of these proceedings, that they were not
contemporaneous with the facts to which they a ttest, and they were sworn by Ukrainian State
officials56.
41. However, these statements stand unre butted by any similar evidence provided by
Romania. They are relevant because they prov ide the first-hand views of the people actually
involved in patrolling the area that the waters in question were frequented exclusively by Ukrainian
vessels.
54
CR 2008/21, p. 29, para. 34.
55
CR 2008/21, pp. 29-30, para. 35.
56CR 2008/21, pp. 32-33, paras. 43-44. - 34 -
IV. Conclusion
42. In Ukraine’s submission, Madam President, Members of the Court, the oil and gas
activities and Ukraine’s coastguard operations ⎯ particularly if regarded cumulatively ⎯ are
relevant for a number of reasons.
43. First, they constitute an important element of the conduct of the Parties subsequent to the
1949 agreement that fundamentally undermines Ro mania’s argument that an all-purpose boundary
had been agreed at the time.
44. If Romania’s thesis regarding the import of the 1949 agreement is correct, then its
licensing and coastguard inactivity in areas that it now contends it ha d allegedly long since
acquired sovereign rights over is inexplicable. It is also inexplicable, if one is to believe Romania’s
theory, that none of Romania’s diplomatic corres pondence in the record refers to a pre-agreed
delimitation line. For instance, the 1995 Note by Romania unequivocally stated that: “there is no
Agreement between Romania and Ukraine on the delimitation of maritime spaces in the Black
Sea” 57.
45. Second, these activities are consistent with Ukraine’s delimitation line and deserve to be
taken into account together with the other relevant circumstances ⎯ notably the physical
geography ⎯ in order to achieve an equitable solution. In its Judgment in the North Sea
Continental Shelf cases, the Court stated clearly that “there is no legal limit to the considerations
which States may take account of for the purpose of making sure that they apply equitable
procedures . . .” (North Sea Continental Shelf , Judgment, I.C.J. Reports 1969, p.50, para.93). In
Tunisia/Libya, the Court underscored the importance of applying equitable principles “as part of
international law, and to balance up the various considerations which it regards as relevant in order
to produce an equitable result” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1982, p. 59, para. 71).
46. Third, Romania has remained silent in the face of Ukraine’s assumption of
responsibilities in respect of surveillance of the dis puted maritime area in order to prevent illegal
fishing. Romania has given no convincing explan ation for its failure to object to Ukraine’s
conduct, its failure to take any coastguard measures itself, or its failure even to offer to co-operate
57
CMU, Ann. 25. - 35 -
with Ukraine in patrolling the waters that it now co nsiders appertain to it. As is evidenced by the
diplomatic Notes filed with Ukraine’s pleadings, Ukraine’s activities were known to the other
Black Sea States, and notably Bulgaria and Turkey.
47. As I said, it is particularly noteworthy that the conduct of the Parties, and notably that of
Romania, confirms that there was no pre-existing agreement delimiting a maritime boundary in the
disputed area as alleged by Romania. In other wo rds, the conduct of the Parties is an additional
aspect of this case which confirms that Romani a’s theory is nothing but a figment of its
imagination.
Madam President, Members of the Court, this leads me to the end of this brief speech.
Perhaps this may be a convenient time to take the coffee break, and then, if I may ask you to call on
Mr. Bundy after the break. Thank you.
The PRESIDENT: Thank you, Ms Malintoppi. The Court will briefly rise now.
The Court adjourned from 11.20 to 11.30 a.m.
The PRESIDENT: Please be seated. Yes, Mr. Bundy.
Mr. BUNDY: Thank you.
VIII.T HE FLAWED NATURE OF ROMANIA S CLAIM LINE
Introduction
1. Madam President, Members of the Court: yesterday morning and again this morning
Sir Michael has explained why Romania’s contention that there is a pre-existing boundary seaward
of “pointF” at this fictional pointX is without merit, and MsMalintoppi, just before the break,
demonstrated how Romania’s claim is inconsistent with the conduct of the Parties. My task this
morning is to address the remainder of Romania’s claim.
2. Now that claim falls into two segments, labelled sector1 and sector2 by Romania. The
first sector is what Romania terms the lateral boundary between the coasts of the Parties that
Romania views as adjacent to each other. This claim line proceeds seaward from “point F” around
Serpents’ Island, leaving a 12-mile arc to the iland corresponding to a territorial sea, and then - 36 -
extends further eastward of the island and eastward of pointX. The second sector of Romania’s
claim assumes a broadly north-south configuration and is described by Romania as an equidistance
line falling between what Romania considers to be the opposite coasts of the Parties in the case.
3. With respect to the first sector of Roma nia’s claim line, Romania has asserted that the
“equitable character” of its historical claim to a maritime boundary around Serpents’ Island “is
confirmed by the fact that, even if no account were taken of the series of agreements said to be
binding on Romania and Ukraine, the solution adopted pursuant to Articles 74 and 83 of the United
Nations Convention on the Law of the Sea would be the same” (MR, para. 11.45).
4. Now that argument is pure wishful thinking. It is self-evident that the equitable character
of an alleged historical boundary cannot be confir med when there is no such historical boundary in
the first place, as Sir Michael has shown.
5. Moreover, as I shall show, Romania’s argument that the application of principles and rules
of international law relating to maritime delimitation produces, mirable dictu, virtually the exact
same line, is advanced at the expense of distor ting the geographic facts and misapplying the law to
the circumstances of this case.
6. The same holds true for the second sector of Romania’s claim line ⎯ its so-called
“opposite coasts” claim line. That claim also is based on a disregard for the relevant circumstances
characterizing the area to be delimited, particular ly the marked disparity that exists between the
lengths of the relevant coasts of the respective Parties.
7. I shall address the deficiencies underlying each of the sectors of Romania’s claim in turn,
starting first with what Romania terms the latera l boundary in the north, and then I will proceed to
Romania’s version of the “opposite” coasts boundary further south.
1. The first sector of Romania’s claim
8. If we turn to the first sector of Romania’ s claim, the most practical way of exposing the
defects in this part of Romania’s case is to use Romania’s own illustrations. The first graphic I
shall be referring to was produced as figure29 to Romania’s Memorial: it now appears on the
screen and is tab 56 in your folders.
[Place fig. 29 of Romania’s Memorial on screen] - 37 -
9. The illustration on the screen shows a convoluted series of lines and alphabetically
labelled points. I shall try to do my best to unrav el this tangled web of constructs and to show why
each element of Romania’s claim in this area is flawed.
10. Starting out in the west off the mainland co asts of the Parties, the only part of this
maritime boundary that has been delimited by the Parties is the State border, including the
territorial sea, from the land boundary and internal wa ters out to point F, the co-ordinates of which
are specifically identified in the 2003 Treaty.
A. Romania’s provisional equidistance line
11. At the same time, the Court will observe that Romania has drawn a straight, dashed line
from its own mainland coast in an easterly directi on: that is being highlighted on the screen now
(tab 56) [point to line with arrow on map]. That line passes about 3 miles south of Serpents’ Island
and then connects up with a series of points labelled Y1, Y, D and T. Romania refers to this as an
“equidistance line between Romanian and Ukra inian adjacent coasts”, and equates it with
Romania’s version of the “provisional equidistance line”.
12. The line as such bears no relation to the course that a properly constructed provisional
equidistance line should follow. Romania’s equidi stance line gives full effect to the Sulina dyke
while at the same time giving no effect to Serpents’ Island which, as I have demonstrated
yesterday, has a baseline. Base points for c onstructing an equidistance line are for Romania
apparently like beauty ⎯ they rest in the eyes of the beholder. This is not a question of “trading
off” Sulina dyke for Serpents’ Island, as Professo rCrawford suggested last week (CR2008/21,
p. 43, para. 23). It is a question of assessing whether it is equitable to give full effect to an artificial
structure while giving no effect to a natura l island for purposes of plotting the provisional
equidistance line.
13. ProfessorCrawford argued that the fact that the dyke is man-made “is neither here nor
there; its use as a base point is in accordance with Article 11 of the Law of the Sea Convention”
dealing with permanent harbour works (CR 2008/21, p. 45, para. 30). Be that as it may, the use of
the baseline on Serpents’ Island to provide base point s is also justified under international law in - 38 -
accordance with Article 5 of the 1982Convention, the provision dealing with normal baselines of
coasts.
14. ProfessorCrawford also referred to the Sharjah/Dubai Award in support of his
proposition that harbour works can be used as ba se points for constructing an equidistance line
(CR 2008/21, p. 45, para. 31). But the facts in that case, Sharjah/Dubai, were very different from
what we have here.
I15. Sharjah/Dubai, both parties had harbour works which the Court of Arbitration took
into account. Each party’s harbour works were 3km in length— horizontally in length— as
opposed to the Sulina dyke, which I showed yest erday, is only 150m across. Dubai’s harbour
works extended 1.5miles, or about 2.4km, out to sea while Sharjah’s harbour works extended
about 0.5miles, or just under 1km, seaward (91 ILR 545, p.662). The Sulina dyke, in contrast,
extends 7.5 km out to sea.
16. Given the existence of harbour works along the coasts of both Dubai and Sharjah, their
effect on the equidistance line in that case was insignificant — you can see that from the map in the
Court of Arbitration’s Award. Closer to the shore, Sharjah’s harbour works caused the line to
deviate very slightly towards Dubai. And further seaward, Dubai’s harbour works caused a similar,
small deflection of the line towards Sharjah. And as the Court of Arbitration noted: “the deflection
of the line from the ‘true’ or ‘s trict’ equidistance line by reason of the effect given to the harbour
works of both Parties is slight and the resulting line is in all respects equitable as between the two
territorial seas” (ibid., p. 663).
17. In contrast, the Court may recall the graphic that I presented on Tuesday, which was also
in tab9 earlier in the folder, showing the dramat ic effect that use of the Sulina dyke has on
Romania’s equidistance line, even without taking into account Serpents’ Island.
[Place comparison slide on screen]
B. Romania’s line to the south and east of Serpents’ Island
18. To the south of Serpents’ Island, Romania does not rely on its own, or indeed on any
other, version of equidistance. Instead, Romania contends that:
“Given the close proximity of Serpen ts’ Island to the adjacent coasts of
Romania and Ukraine, as well its status of a rock falling under the provisions of - 39 -
Article121(3), [of the Convention] it is appropriate to give Serpents’ Island no
weight at all in delimiting the continenta l shelf and exclusive economic zones of
Romania and Ukraine. This means that the only effect for Serpents’ Island is
restricted to a 12 nautical mile semi-enclave.” (MR, para. 11.49.)
19. I shall come back to Romania’s argument that Serpents’ Island is entitled to no more than
a 12-mile territorial sea at the end of my presentation this morning. MsMalintoppi will also be
responding to Romania’s assertion that Serpents’ Isla nd is no more than an Article121(3) rock.
For present purposes, I would simply note that Romani a treats Serpents’ Island as if it exists in a
vacuum divorced from the overall geographic setting characterizing this part of the Black Sea.
20. To the east of Serpents’ Island, Romania’s claim line becomes even more confused.
21. The Court will note from the map on the scr een that Romania’s provisional equidistance
line intersects with the 12-mile territorial sea of Serpents’ Island at a point Romania labels Y1
[arrow on screen pointing to this point]. That point bears no relation, as I have said, to a true
equidistance line. It is based on giving the Sulina dyke a full effect and Serpents’ Island no effect
at all.
22. It is at this juncture that Romania r uns into another embarrassing problem. Romania’s
principal argument is that there is an historical delimitation extending around Serpents’ Island up to
“point X” ⎯ this is a proposition to which Sir Michael has responded. In its Memorial, Romania is
forced to concede that “pointX” is actually a “point undefined, in the text [of the 1949
procès-verbaux], by geographic coordinates” (MR, para.11.51). Romania also admits that, “Nor
did the subsequent boundary agreements concluded between Romania and the Soviet Union
identify this point by geographical coordinates.” (MR, para.11.52.) Nonetheless, that does not
deter Romania from arguing that the maritime boundar y must pass through “point X”, even though
ProfessorCrawford stated the other day, “whether or not point X is located precisely where we
propose, it must be located thereabouts” (CR 2008/21, p. 40, para. 13).
23. A glance at Romania’s map, which I have had placed on the screen, shows that its
“point Y1” ⎯ the point arrived at on the basis of Romania’s equidistance line ⎯ does not coincide
with “point X”: it lies to the south of it. Th is discrepancy in and of itself undermines Romania’s
contention that its provisional equidistance line somehow “confirms” the course of the alleged
historic boundary line. - 40 -
24. Romania is thus faced with the proble m of how to overcome this inconvenient fact ⎯ in
other words, how to link up its “point X” with its version of the equidistance line. And, in trying to
deal with this problem, Romania has embarked on a series of artifices, each of which is more
tendentious than its predecessor. With the Court’ s indulgence, I will review the rather convoluted
process that Romania has adopted in arriving at its line to show why the approach as a whole is
fundamentally misguided.
25. In its written pleadings, Romania referre d to passages from the Court’s Judgment in the
Cameroon v. Nigeria case to justify its approach and ProfessorCrawford also made a similar
reference last Friday (CR2008/21, p.40, para.12) . To facilitate an understanding of Romania’s
argument, you can see on the screen now the relevant map from the Court’s Judgment.
[Sketch-map No. 12 at p. 449 of I.C.J. Reports 2002 in Cameroon v. Nigeria]
26. Romania’s argues that in Cameroon v. Nigeria the Court had to connect up the
delimitation resulting from an historical boundary agreement ⎯ the 1975 Maroua Declaration,
which ended at pointG on the map ⎯ with the starting-point of the equidistance line running to
seaward that was decided by the Court ⎯ point X. This the Court did by connecting points G and
X with a line running due west along an azimuth of 270°. Romania then argues that the Court
should do more or less the same thing here in linking up Romania’s own “point X” with its version
of the equidistance line. Romania contends that “under normal circumstances” this could be done
by drawing a perpendicular between “point X” a nd point Y1, but then curiously Romania does not
actually follow that method.
27. I will return to Romania’s line in a minute, but first it is important to point out why the
situation confronted by the Court in Cameroon v. Nigeria is not at all comparable to the situation
we have here.
28. Unlike the present case, pointG in Cameroon v. Nigeria was a point that had been
identified and specifically agreed by the parties in an international delimitation instrument which
the Court ruled was binding. The agreement in question ⎯ the 1975 Maroua Declaration ⎯
provided that:
“The Two Heads of State of Cameroon and Nigeria agree to extend the
delimitation of the maritime boundary between the two countries from point12 to
point G on the Admiralty Chart No. 3433 annexed to this Declaration.” - 41 -
29. Thus, not only did the 1975 Maroua agreem ent expressly provide that it related to the
delimitation of the maritime boundary out to point G, the co-ordinates of pointG itself were
specified and referred to as such in the agreement. They were also identified and referred to as
such in Court’s dispositif in the case (I.C.J. Reports 2002, p. 456, para. 325 IV. (B)).
30. As Sir Michael has demonstrated, nothing of the kind exists in this case with respect to
Romania’s “point X” in our case. There is no delimitation agreement either between Romania and
the Soviet Union or between Romania and Ukraine beyond pointF. “PointX” is nowhere
mentioned in any instrument and, as Romania its elf has conceded, its co-ordinates are nowhere
defined. There is simply no pre-existing boundary out to “pointX” and no “pointX” at all. It
follows that the methodology adopted by the Court in the Cameroon v. Nigeria case for linking up
points G and X in that case has no role to play in this case.
31. It is also striking that, having set out Cameroon v. Nigeria as the relevant precedent,
Romania then discards the method used by the Court in Cameroon v. Nigeria in favour of yet
another line that it has conjured up out of thin air. For, if we return to Romania’s illustration of its
position [place Romania Memorial fig. 29 back on screen], the Court will observe that Romania’s
claim line does not actually proceed south from “pointX” to pointY1; instead it extends in an
east-south-easterly direction to connect up with ye t another artificially c onstructed point labelled
“point Y” [point to point Y on map].
32. In other words, having first wrongly plotted the provisional equidistance line which gives
full effect to the Sulina dyke and no effect to Serp ents’ Island, Romania then claims more than this
equidistance line ⎯ a claim that includes the triangular-shaped area that is now being highlighted
in red on the map on the screen [arrow pointing to hatched area].
33. The justification Romania uses for this methodology and for its choice of arriving at
point Y is eccentric in the extreme. In Romania’s words:
[Place quote on screen]
“The solution would lead to the allocation to Romania of a maritime area of
about 68 km². This roughly equals the area lost by Romania because of the unjustified
departure from equidistance when delimiting the territorial seas between Romania and
the USSR, a factor which should be kept in mind when considering the overall equity
of the solution adopted.” (MR, para. 11.72.) - 42 -
34. In other words, Romania is claiming an additional slice of continental shelf and exclusive
economic zone to the east of Serpents’ Island, in order to compensate it for areas that Romania
perceives it “lost” when it delimited its territorial sea boundary with the former Soviet Union
in1949. The so-called “lost” area in question is now the area in blue being highlighted on the
screen; it is also at tab 57 [arrow pointing]. This area is labelled by Romania on its own map as
“Maritime area lost by Romania as a consequen ce of the establishment of the 1949 boundary”.
And Romania apparently feels that it is now entitled to some form of compensation for past
agreements it entered into. This was made very clear by Romania’s Agent last week in his opening
presentation, when he discussed at considerable length the so-called “injustices” that Romania
claims it suffered at the hands of the Soviet Union (CR 2008/18, pp. 22-25, paras. 23-31).
35. Quite apart from the fact that Roma nia “lost” no maritime areas in 1949, the
1949Agreement was determined by a valid treaty entered into by two States. Romania has not
invoked any of the grounds of invalidity set out in Part V of the Vienna Convention on the Law of
Treaties. And the 1949 Treaty has been reaffirmed on many occasions ⎯ most recently in 2003.
Romania’s current manner of justifying its claim is really no more than an ill-disguised attempt to
make out a plea for a kind of politically inspired “d istributive justice”. Ukraine pointed this out in
its Counter-Memorial (paras. 4.15-4.19). And as Ukraine also noted, in the Tunisia/Libya case, the
Court firmly rejected the proposition that mariti me delimitation should be based on distributive
justice. As the Court stated with respect to its task–– and I am citi ng from paragraph71 of the
Judgment:
[Place quote on screen]
“It [the Court] is bound to apply equitable principles as part of international law,
and to balance up the various considerations which it regards as relevant in order to
produce an equitable result. While it is clear that no rigid rules exist as to the exact
weight to be attached to each element in the case, this is very far from being an
exercise of discretion or conciliation; nor is it an operation of distributive justice.”
(I.C.J. Reports 1982, p. 60, para. 71.)
36. Following the submission of Ukraine’s Counter-Memorial, Romania came up with yet
another construct to justify its line. Having prev iously admitted that “point X” was never defined
in any agreement between the Parties, Romania advanced a brand new argument in its Reply,
which ProfessorCrawford also ran with last Fr iday. Pursuant to this new argument, Romania - 43 -
contends that “point X actually represents the intersection of the 12 nm arc around Serpents’ Island
with a line drawn from the last point of the Romanian/Soviet land-river boundary on a
perpendicular to the segment closing the Musura Bay” (RR, para.4.97). This new construct is
illustrated in Romania’s Reply at fig. RR21 –– it is now being reproduced on the screen [fig. RR21
on screen]. Professor Crawford asserted that the point where this new construct crosses the 12-mile
arc around Serpents’ Island corresponds to “point X” (CR 2008/21, p. 39, para. 10).
37. Madam President, Members of the Court, once again, our opponents are engaging not
simply in a refashioning of history but also a refashioning of geography.
38. On the historical plane, there is no evidence that the Soviet Union or Romania paid any
attention, or ever referred, to Romania’s perpendicular line when they ag reed their State border
in 1949, or that Ukraine and Romania had in mind any such perpendicular when they entered into
the 1997 and 2003 Agreements. Romania’s pe rpendicular theory is no more than an ex post facto
attempt to justify something that is otherwise completely unsubstantiated ⎯ the location of
“point X”. Let me repeat once more, “point X” h as no basis in fact or law, and it certainly was not
the practical result of constructing any perpendicular line, whether in 1949 or thereafter.
39. Geographically, Romania’s version of the general direction of the coast on the basis of
which its red perpendicular line has been constructed is the product of myopic vision. The red line
you see on the map does not even begin to represent the general direction of the Parties’ coasts in
this area. It lops off part of Ukraine’s coast , it treats the seaward end of the Sulina dyke as if it
alone represents the general direction of Roma nia’s coast, and it does not begin to reflect the
overall general direction of both Parties’ coasts.
40. If lines drawn perpendicular to the genera l direction of the coast were to have any
relevance in this case, such lines would have to be drawn in a way to represent faithfully the actual
geographic orientation of the Parties’ coasts. A properly constructed line, representing the general
direction of the Parties’ coasts in this area, would adopt the course that is now being shown on the
map and which you can also see at tab58 [superpose a new “coastal front” on Romania’s
fig. RR21]. As can be seen, a line drawn perpendicu lar to the coastal façade of both Parties, even
ignoring for the moment the presence of Serpents’ Island, would pass to the south of Romania’s - 44 -
12-mile arc drawn around Serpents’ Island and it would come nowhere near to any of Romania’s
other points, whether labelled “point X”, “Y”, “Y1”, “D” or “T”.
[Place MR fig. 29 back on screen]
41. It is abundantly clear that “pointX” and “pointY” are both a product of Romania’s
imagination and no justification is given by Romania for the location of pointY, other than to
assert that it lies “approximately in the middle” of its equidistance line lying between points Y1
and T.
42. This brings me back to Romania’s version of equidistance, since points Y, D and T on its
line, are all said to be situated on the provisional equidistance line.
[Place MR fig. 28 on screen]
43. The map that now appears on the screen is figure28 to Romania’s Memorial. It is
labelled “The equidistant line between the adjacen t relevant Romanian and Ukrainian coasts”, and
it depicts the base points that control the course of Romania’s equidistance line–– it is also at
tab 59.
44. As the Court will observe, the entire course of this line is controlled by a single base
point situated on Sulina dyke. The distance betw een the land boundary separating the two Parties
and Sulina dyke is very short ⎯ it is no more than about 5 nauticalmiles. Yet this very limited
stretch of coast ⎯ and in fact, just one point not even located on the coast but rather at the tip of a
man-made structure ⎯ dictates the entire course of Romania’s claim line in the first sector out to
sea. In his presentation last Tuesday, Professor Crawford displayed a map (tab IV-3) which labelled
this line as the “Mainland coasts equidistance line”. And I would suggest that it probably should
have been more accurately called the “Sulina d yke equidistance line”, since Romania’s only base
point for constructing the line is situated at the end of the dyke.
45. Several important points stand out from this analysis of the actual coastal geography.
⎯ First, the length of Ukraine’ s relevant coast in this area ⎯ the area which Romania posits as
relevant to its lateral boundary ⎯ is significantly longer than the corresponding length of
Romania’s coast even if Romania’s coast is taken as extending from the land boundary with
Ukraine down to the Sacalin peninsula. - 45 -
⎯ Second, a line drawn perpendicular to the general direction of the Parties’ coasts projects in a
south-east direction as can be seen on the illustration on the screen, not in an easterly direction
as Romania would have the Court believe [add perpendicular line to the coastal front line].
⎯ Third, Romania’s versions of equidistance produces a marked cut-off effect of the projection of
Ukraine’s coastal front north of the land boundary. While Romania’s methodology accords the
very, very short stretch of Romania’s coast around the Sulina dyke a projection due eastwards,
the projection of Ukraine’s much longer coast is amputated despite its greater length.
⎯ Fourth, the cut-off effect produced by Romania’s line is even more pronounced when Serpents’
Island is included in the equation, as it shoul d be. Romania obviously ignores Serpents’ Island
for the course of its equidistance line. But Serpents’ Island forms part of Ukraine’s coastal
geography and it is surely entitled to greater weight than a man-made structure having the
characteristics of Sulina dyke.
46. All of these elements undermine the legitimacy of the first part of Romania’s claim line.
However, there is still a further important point, and an important defect in that line which merits
attention. For not only does Romania’s line encroach upon the extension or projection of Ukraine’s
south-east-facing coast ⎯ the coast just above the land boundary ⎯ it also produces a cut-off
effect on the projection of Ukraine’s south-facing coast lying beyond Odessa.
47. This is the long stretch of coast that Romania has been at pains to suppress throughout
these proceedings. As Ukraine has shown, its sout h-facing coast generates maritime entitlements
throughout the relevant area on a basis that is no less deserving than the entitlements generated by
the other coasts of the Parties. I have previously observed that the 200-nautical-mile entitlements
that this south-facing stretch of Ukraine’s coast gives rise to extend well south of Romania’s claim
line connecting up points X, Y, D and T. Yet that portion of Romania’s claim line connecting those
points runs parallel to the south-facing Ukrainian coast and hence cuts in front of its natural
prolongation, to borrow Professor Lowe’s words.
48. Romania’s failure to take this part of Ukraine’s coast into account once again is telling.
On the one hand, Romania proceeds on the basis that its very short east-facing coast, and the Sulina
dyke, are entitled to a maritime projection extending due east and east of Serpents’ Island. On the - 46 -
other hand, Romania denies the same treatment to Ukraine’s much longer east-facing coast, as well
as to its south-facing coast and Serpents’ Island.
49. Any balanced application of equitable principles must respect the actual geography of the
area being delimited and must give appropriate wei ght to the relevant coasts of the Parties on an
equitable basis. Romania’s claim line fails to do this . It not only fails to take into account the long
stretch of Ukraine’s coast lying between Odessa and Cape Tarkhankut, but it also fails to reflect the
substantial difference in the overall lengths of the Parties’ coasts abutting the area to be delimited.
When it is recalled that Romania’s provisional equidistance line is improperly calculated in the first
place, the failure thereafter of Romania to take any account of the marked differences in the lengths
of the Parties’ relevant coasts and the configur ation of those coasts exacerbates the inequitable
nature of Romania’s claim line.
2. The second sector of Romania’s claim
50. Madam President, Members of the Court, I now turn to the second sector of Romania’s
claim ⎯ I have dealt with the lateral portion and I will deal with the second sector, the part of
Romania’s claim that it characterizes as an “opposite coasts” delimitation. That is the line, as I have
mentioned, that extends south from Romania’s point T and is said to be equidistant between the
opposite coasts of the Parties. And as with Romania’s first sector, this element of its claim also
suffers from numerous shortcomings.
[Place MR fig. 30 on screen]
51. The map on the screen is taken, once again, from Romania’s Memorial and shows how
Romania has plotted the initial part of the second sector of its claim south of pointT. I would
suggest that what is interesting about this figure is the fact that, while the base points on Ukraine’s
coast which control this part of Romania’s line now lie on the other side of the Black Sea ⎯ at
Cape Tarkhankut in Crimea ⎯ on the Romanian side, the line is still controlled by a single base
point situated at the seaward end of the Sulina dyke. Moreover, the presence of Serpents’ Island
continues to be ignored by Romania for equidistance purposes.
52. It is only further south ⎯ as can be seen on the graphic on the screen [fig. 32 to MR on
screen] which is also at tab 60 ⎯ that the Sulina dyke ceases to provide the relevant base points for - 47 -
Romania, and is replaced by a second base point located on the Sacalin peninsula where the
Romanian coast then recedes back sharply to the west. The part of Romania’s claim line controlled
by the single point ⎯ the Sulina dyke ⎯ is highlighted in red on the map that you have in your
folders. South of the Sacalin peninsula, the Ro manian coast does not provide any base points for
Romania’s delimitation line. In fact, most of that part of Romania’s coast actually faces south and
south-east. Yet that does not prevent Romania from considering this entire stretch of coast as a
relevant coast.
53. On the Ukrainian side, Romania identif ies the relevant base points as located at
Cape Tarkhankut and Cape Khersones. Of course, Professor Lowe rightly observes that base points
do not generate maritime zones, the coastline do es (CR2008/21, p.56, para.19). And as he also
noted, “each segment of the relevant coastline must be permitted to generate its own maritime
zones” (CR 2008/21, p. 62, para. 52).
54. The problem is that Romania’s blinkered approach to geography denies to long stretches
of Ukraine’s coast precisely such zones. As I poi nted out yesterday, just as the United States coast
at the back of the Gulf of Maine was deemed by the Chamber to be relevant to the determination of
an equitable delimitation throughout the Gulf and we ll into the Atlantic, so also should the entirety
of Ukraine’s coast be taken into account in th is case with respect to the whole course of the
delimitation line.
55. When it comes to the “opposite coasts” sector of its claim, Romania counts its coast
between the land boundary with Ukraine and the S acalin peninsula as a relevant coast for a second
time. It has already used it for its adjacent coast, but for the opposite coast it also counts this part
of the coast for a second time. But then it adds to this stretch of coast the remainder of Romania’s
coast all the way down to the land boundary with Bulgaria. Ukraine, on the other hand, is limited
to its west-facing coast along the Crimea between Cape Tarkhankut and Cape Khersones, and is
once again not allowed to take into account its own south-facing coast ⎯ parts of which are just as
close to Romania’s claim line as the Romanian coast south of the Sacalin peninsula, as I showed
with a slide in my opening presentation on Tuesday.
56. In Ukraine’s submission, such a self-serving approach to the geographic realities of the
case is at odds with a delimitation based on the application of equitable principles. The proper way - 48 -
of proceeding, both for purposes of plotting the provisional equidistance line and for considering
whether there are any relevant circumstances justifying the shifting of that line, is to compare “like
with like”.
57. If Romania wishes to use the Sulina dyke for equidistance purposes, then at the very least
it should be prepared to accord Serpents’ Island th e same, if not more favourable, treatment. If
Romania wishes to consider its entire coast stretching from Ukraine down to Bulgaria as a relevant
coast for delimitation purposes because, so it claims , that coast generally abuts the area to be
delimited, then it should also be prepared to accep t that all of Ukraine’s coast fronting the same
general area should be similarly treated as a releva nt coast. On the other hand, if Romania wishes
to eliminate all of Ukraine’s south-facing coast from consideration because it is allegedly too far
away or points in the wrong direction, it should also be prepared to eliminate its own coast south of
the Sacalin peninsula. That coast points in a differe nt direction too and I have shown that it is far
away from the claim line as well. And if Romania wishes to rely on its short stretch of coast
between the land boundary with Ukrain e and the Sacalin peninsula twice ⎯ once for its lateral
boundary and a second time for its opposite boundary ⎯ then it should be prepared to accept that
there is a fundamental difference in the overall length of the Parties’ coast justifying a shift of the
provisional equidistance line.
58. Once a balanced approach is adopted, and even leaving to one side for the moment the
conduct of the Parties to which MsMalintoppi has referred earlier, two key factors stand out that
Ukraine considers constitute circumstances which should be given their appropriate weight in
arriving at an equitable solution.
59. The first is the marked disparity that exis ts between the lengths of the relevant coasts of
the Parties that front the area to be delimited. Th at is a geographic fact, and it exists even without
taking into account Serpents’ Is land. Yet neither sector of Romania’s claim line takes this
important circumstance into account.
60. The second is the presence of Serpents’ Island. While this case is not about Serpents’
Island in isolation, as Romania appears to believe is the case, Serpents’ Island is a geographic fact
that forms part of Ukraine’s coastal geography. And it would seem evident that a natural feature - 49 -
such as Serpents’ Island should not be given less e ffect than an artificial structure such as the
Sulina dyke, or a sand spit such as the Sacalin peninsula.
3. The legal entitlement of islands
61. Madam President, Members of the Court, this leads me to the final part of my
presentation in which I would like to address Romani a’s argument that because Serpents’ Island is
a small island, it should be entitled to no more th an a 12-nautical-mile territorial sea, but no
continental shelf or exclusive economic zone.
62. In support of this argument, Romania h as referred both in its written pleadings and in
oral argument last week to a number of judicial precedents and examples of State practice where
small islands have been accorded a reduced effect for maritime delimitation purposes. In some
cases small islands have been acco rded what is commonly known as a “half-effect”. This is what
happened, for example, with respect to the Scilly Isles in the Anglo-French Arbitration, the
Kerkennahs, albeit it was a different kind of half-effect, in the Tunisia/Libya case, and Seal Island,
which was still another version of the half-effect, in the Gulf of Maine case.
63. In other examples cited by Romani a, such as the Channel Islands in the Anglo-French
Arbitration, and the island of Abu Musa in the Sharjah/Dubai arbitration, islands received partial
enclaves.
64. In still other cases, such as in the Libya/Malta with respect to the rock of Filfla which lay
just off the southern coast of Malta, or a very small sand bar named Qitat al-Jaradah that was at
issue in the Qatar v. Bahrain case, very small features have had no effect on the delimitation line.
65. Ukraine is obviously well aware of these pr ecedents. It is also well aware of the
examples of State practice cited in Romania’s written pleadings where small islands have
sometimes been accorded less than full equidi stance treatment. Ukraine addressed all of these
examples cited in Romania’s written pleadings in its Counter-Memorial. And in addition, Ukraine
presented other examples of State practice, of which there are many, where small islands have
received full or substantially full effect; I would respectfully refer the Court to pages48 to64 of
Ukraine’s Counter-Memorial where there is a full discussion of these examples. - 50 -
66. The important point, however, ⎯ and this is a point which Romania’s pleadings have
conspicuously overlooked ⎯ is that each delimitation situation is unique and each case must be
assessed in the light of its own particular geographi c facts and circumstances. To recall what the
Court said in the Tunisia/Libya case: “There can be no doubt that it is virtually impossible to
achieve an equitable solution in any delimitation without taking into account the particular relevant
circumstances of the area.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, p. 60, para. 72.)
[Map of north-west corner of Black Sea]
67. Much as Romania would like the Court to believe the contrary, the present case is not
primarily about Serpents’ Island. It concerns de limitation in the entire north-west corner of the
Black Sea. Here, as a glance at any map of the area shows, the factor that really stands out is the
predominant geographical position that Ukraine’s mainland coast possesses. No matter how those
coasts are measured, along their sinuosities, according to their coastal fronts, using the system of
straight baselines both Parties have enacted, Ukra ine’s coast is significantly longer than that of
Romania.
68. Obviously, Serpents’ Island is located with in the area surrounded by these coasts. But it
is only one element of the overall coastal relationship between the Parties.
69. When it comes to plotting the provisional equidistance line, ProfessorPellet has
acknowledged that such a line should be a line, “every point of which is equidistant from the
nearest points on the baseline from which the bread th of the territorial seas of each of the two
States is measured” (CR 2008/20, p. 15, para. 12). That formula is taken verbatim from Article 15
of the Law of the Sea Convention and it is the sa me formula that the Cour t referred to in the
Qatar v. Bahrain and Cameroon v. Nigeria cases.
70. Madam President, Members of the Court, there are not many areas of agreement between
the Parties in this case. But this is certainly one of them ⎯ and it is an important one. Once it is
accepted that Serpents’ Island has a baseline ⎯ as I hope I demonstrated yesterday ⎯ then under
the formula agreed by both Parties, that baseline must provide relevant base points for constructing
the provisional equidistance line. - 51 -
71. That being the case, it is not necessary to rehearse past examples where small islands
have been used for the plotting of a provisiona l equidistance line, as was the case, for example,
with the Scilly Isles in the Anglo-French arbitration, or where small islands have not been used for
that purpose, as in some of the examples cited by Professor Pellet last week. The Parties agree that
the provisional equidistance line should be drawn from the nearest points on the baselines from
which their respective territorial seas are measured.
72. Therefore, the important question is how to assess all of the relevant circumstances
characterizing the area to be delimited for purposes of determining whether they justify a shifting
of the provisional equidistance line. These circumstances include not only Serpents’ Island, but
more importantly, the overall relationship between the Parties’ mainland coasts.
73. Last Thursday, ProfessorPellet discussed a number of cases where islands have been
accorded a reduced effect for delimitation purposes. But, the key point, I would suggest, is that ⎯
perhaps with the exception of the Gulf of Maine case ⎯ none of the examples cited by
Professor Pellet involved an overall geographic situation that is remotely comparable to the present
case.
74. The first case cited by my eminent colleague was Anglo-French (CR2008/20, p.24,
para. 36). But the geographic position of the Channel Islands in that case bears no resemblance to
the location of Serpents’ Island in the present case. The Channel Islands fell on the “wrong side”
so to speak, of a median line that was otherw ise between opposite coasts of the same approximate
length. Here, Serpents’ Island does not fall on the “wrong side” of any median line, and Ukraine’s
mainland coast ⎯ unlike the situation in Anglo-French ⎯ is some four times longer than the
mainland coast of Romania.
T7h5e. Libya/Tunisia case, in which the Kerkannah Islands were accorded a kind of
“half-effect”, also did not involve a geographic situation where the relevant area was circumscribed
by the coasts of parties the length of which were markedly different. There, the Court had no need
to make any adjustment to the line ⎯ in fact, equidistance did not figure in the line at all. It is
listed in our opponent’s folders as an example wher e islands have not been used for a provisional
equidistance line. There was no provisional equidistance line in Libya/Tunisia . The Court never
addressed the point. Moreover, in that case, the C ourt had no need to make any adjustment to the - 52 -
line to take into account a disparity between the lengths of the Parties’ coasts. Here the situation is
very different.
In76. Libya/Malta, Professor Pellet notes that Filfla was given no effect (CR 2008/20, p. 25,
para. 36). That is obviously correct. But Filfla was unquestionably a rock, and disregarding it for
delimitation purposes had a negligible effect on the Court’s adjusted median line. What was
important in that case ⎯ and what justified an adjustment being made to the median line in the first
place ⎯ was the marked difference in the lengths of the parties’ overall relevant coasts. That is
what we have here, a marked difference in the length of the Parties’ relevant coasts. The same
considerations applied in the Jan Mayen case, where the median line was once again adjusted in
favour of the State with the longer coast, and in the Barbados/Trinidad and Tobago arbitration,
where an adjustment was made for the same reason.
T7he. Sharjah/Dubai case cited by Professor Pellet (CR 2008/20, p. 25, para. 36) involved
primarily a delimitation between States with adja cent coasts, on a very smooth coastline. Neither
party in that case had a coast which surrounded the delimitation area on three sides. It too is not
comparable to the geographic facts that are presented in this case.
78. Eritrea/Yemen involved coasts of roughly equivalent length which did not require an
adjustment being made to what was otherwise a mainland-to-mainland equidistance line which did
give full effect to islands on both sides lying close to the mainland. It did not involve a case where
one’s coast surrounded three sides of the area and was markedly longer than the other party’s coast.
And the Nicaragua v. Honduras case also involved a geographic situation which is much different
from the present case, as I hope I illustrated yesterday when I put the no-man’s zone slide on the
map.
79. Counsel then referred to Qatar v. Bahrain where the very small island ⎯ and it was
really just a sand bar ⎯ of Qit’at Jaradah was given no effect for equidistance purposes
(CR 2008/20, p. 25, para. 36). Once again, the geographical context of that case bears no relation
to the present case where we have the coast of one Party surrounding three sides of the area to be
delimited.
80. There is another point about Qatar v. Bahrain that I would like to highlight. The
delimitation line in Qatar v. Bahrain actually fell between Qit’at Jaradah and a low-tide elevation - 53 -
called the FashtadDibal. The Court noted there that the low-water line of a low-tide elevation
falling within the territorial sea of the mainla nd or an island may be used as a baseline for
measuring the breadth of the territorial sea. FashtadDibal met this requirement and thus had a
baseline, despite the fact that it was a low-tide elevation. As I said, the delimitation line decided by
the Court in that case actually fell between Qit’at Jaradah on the one hand and the Fasht ad Dibal
on the other. That is, again, the kind of situation which we do not have in this case.
81. Professor Pellet then referred to the Gulf of Maine case and the Chamber’s treatment of
Seal Island which was accorded a kind of “half-e ffect” (CR2008/20, p.32, para.53). However,
the reduced effect given to Seal Island in that case was only for the purpose of constructing the
closing line across the Gulf, and shifting the lo cation of the point where the delimitation line
intersected that closing line from a ratio of 1.38 to 1 in the United States favour, to a ratio of
1.32 to 1 (I.C.J. Reports 1984, p. 337, para. 222). As the Chamber noted, the practical effect of this
small displacement was, to use the Chamber’s words, “limited” (ibid.).
82. What was much more important in the Gulf of Maine case, as I pointed out yesterday,
was the fact that the Chamber viewed the whole of the coasts along the Gulf of Maine, and even
significant parts of the Bay of Fundy, as relevant coasts, and considered a difference in coastal
lengths in the magnitude of 1.38 to 1 ⎯ which was much less than our 4 to 1 magnitude in this
case ⎯ that difference justified and warranted an important adjustment to be made to the
equidistance line.
4. Conclusions
83. Madam President, Members of the Court, tomorrow ProfessorQuéneudec will be
discussing the relevance and the weighting to be gi ven to these kinds of factors when he addresses
Ukraine’s delimitation line tomorrow.
84. For my part, this morning I hope that I have showed the manner in which both “sectors”
of Romania’s claim line are based on artificial constructs and a selective approach to the
geographic facts. “Point X” is a fictitious point, and Romania’s after-the-fact attempt to justify it
on geometrical grounds is misguided. The rest of Romania’s alphabet soup fares no better.
Romania’s equidistance line is improperly plotted, and its failure to take into account the marked - 54 -
difference that exists between the lengths of the re levant coasts of the Parties, both for the lateral
part of the boundary and for the boundary as a whole, according to Romania, is contrary to the case
precedents.
85. I wish to thank the Court very much fo r its attention, and I would now be grateful,
Madam President, if the floor could be given back to Ms Malintoppi. Thank you.
The PRESIDENT: Thank you, Mr. Bundy. Now we call Ms Malintoppi.
Ms MALINTOPPI: Thank you, Madam President.
IX. ROMANIA ’S IRRELEVANT CIRCUMSTANCES : THE B LACK SEA AS AN ENCLOSED
OR SEMI -ENCLOSED SEA ,DELIMITATION AGREEMENTS THEREIN
AND THE SIGNIFICANCEOF S ERPENTS ’ ISLAND
A. Introduction
1. Madam President, Members of the Court, Romania’s written and oral pleadings emphasize
certain aspects of the maritime delimitation w ith Ukraine that are said to represent the only
“special” circumstances to be taken into account in this case5.
2. In its Memorial, Romania relied on the enclosed nature of the Black Sea and maritime
delimitation agreements concluded therein so far as the only elements which constitute “relevant”,
59
or “special”, circumstances .
3. In its Reply, and in its first round presen tation last week, Romania added Serpents’ Island
to its list of relevant circumstances, and argued that this island should be accorded no more than a
60
12-mile band of territorial sea .
4. Within this context, I shall address first, Romania’s arguments concerning the enclosed or
semi-enclosed nature of the Black Sea; second, the relevance of other delimitation agreements
concluded by Black Sea States for this case; a nd, third, the significance of Serpents’ Island,
including the fact that it is not a “rock” under th e definition provided in Article 121 (3) of the Law
of the Sea Convention.
58
MR, pp. 108-129 and RR, pp. 188-245.
59
MR, pp. 128-129, para. 8.126 (h).
60RR, pp. 188-189, paras. 6.1-6.5; CR 2008/20, pp. 38-39, para. 66 and pp. 39-40, paras. 3-4. - 55 -
B. Romania’s arguments concerning the enclosed or semi-enclosed nature of the Black Sea
5. As for the first point, Romania puts great st ore on the characterization of the Black Sea as
an enclosed or semi-enclosed sea and the im portance of maritime delimitation agreements
previously concluded between certain States bordering the Black Sea as providing the applicable
methodology for delimitation in this present case: unadjusted equidistance, save for a 12-mile arc
around Serpents’ Island.
6. Romania’s arguments find no support in law or in the factual context.
7. Legally, there is no special régime governi ng delimitations taking place in an enclosed or
semi-enclosed sea simply because of its “enclosed” or “semi-enclosed” nature. Part IX of the Law
of the Sea Convention dealing with enclosed or semi-enclosed seas does not provide for a specific
delimitation methodology to be applied with respect to such seas. Article122 ⎯ which has been
reproduced for ease of reference in your folders under tab 61 ⎯ contains the following definition:
“For the purposes of this Convention, ‘enclosed or semi-enclosed sea’ means a
gulf, basin or sea surrounded by two or more States and connected to another sea or
ocean by a narrow outlet or consisting entirel y or primarily of the territorial seas and
exclusive economic zones of two or more coastal States.”
8. In addition to this general definition, Article123 of the Convention— the only other
provision of Part IX ⎯ invites States bordering on an enclosed or semi-enclosed sea to co-operate
with each other in the management and con servation of living resources and the marine
environment. Aside from these provisions, there are no particular rules under the Law of the Sea
Convention governing enclosed and semi-enclosed se as, and there are no specific rules applying to
maritime delimitations taking place in such seas. As a result, delimitations in enclosed, or
semi-enclosed, seas, as far as c ontinental shelf and exclusive economic zones are concerned,
remain governed by Articles 74 and 83 of the Convention — and as we know, these Articles make
no exception for enclosed or semi-enclosed seas.
9. Romania relies on the Tunisia/Libya and Libya/Malta cases as supporting its contention
that enclosed seas are to be considered “special circumstances” in the context of maritime
61
delimitation . However, these cases are of no assistan ce to Romania, because the semi-enclosed
61
MR, p. 70, paras. 6.26-6.28; RR, p. 204, para. 6.48. - 56 -
nature of the Mediterranean Sea ⎯ or, for that matter, pre-existing maritime delimitations in that
area ⎯ played no role in the delimitation methodology adopted by the Court in each of these cases.
In0. Tunisia/Libya, the Court emphasized that the starting-point of any maritime
delimitation is the particular geographical situation ⎯ and notably in terms “the extent and features
of the area found to be relevant in the delimitation” ( Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Judgment, I.C.J.Reports1982, p.82, para.114). No mention was made in the
Judgment that the semi-enclosed nature of the Mediterranean, or ⎯ for that matter ⎯ the existence
of other delimitation agreements in that sea, were relevant circumstances dictating the method of
delimitation to be employed as between Tunisia and Libya in order to achieve an equitable result.
11. The Court’s decision was in fact based on a combination of geographical and historical
considerations specific to that case, and including the parties’ own conduct. To the extent that the
Court’s Judgment mentioned third States’ interest s at all, it was for quite a different purpose ⎯
namely, in order to limit the area affected by the delimitation in the light of the existing or potential
claims of third States ( Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, pp. 91-94, paras. 130, 131 and 133 B.(5) and C.(3)).
12. With respect to Libya/Malta, Romania asserts that, in that case, the semi-enclosed
character of the Mediterranean Sea was “a factor to be taken into account in order to achieve an
equitable result, influencing the scope of the adjustment of the boundary northwards” 62. This is
incorrect, and Romania misconstrues that aspect of the Court’s Judgment on two accounts.
13. First, the focus of the Court’s decision was not on the semi-enclosed nature of the
Mediterranean as such, nor on the existence of a delimitation methodology purportedly adopted by
other States in their bilateral agreements, but, rath er, on the fact that Malta had a short coast facing
the much longer coast of Libya. This was an important relevant circumstance which weighed
heavily on the Court’s decision to adjust the me dian line northwards towards the State with the
shorter coast ⎯ a fact which Romania omits to mention. This is also a crucial aspect of the present
delimitation that should similarly play a key role for purposes of achieving an equitable result.
62
RR, p. 204, para. 6.48. - 57 -
C. The role of existing delimitation agreements in the Black Sea
for purposes of this delimitation
14. I will now move on to discuss the role of existing delimitation agreements in the Black
Sea for purposes of this delimitation.
15. Professor Pellet stated last week that Ro mania’s arguments regarding the semi-enclosed
nature of the Black Sea and the delimitation ag reements concluded so far in this area are
fundamentally linked. His argument was that it is due to the semi-enclosed nature of the Black Sea
that delimitation agreements between other States bordering that sea are important and must be
63
taken into account . Romania’s written pleadings, and Romania’s Co-Agent in his first speech,
had, in fact, taken this reasoning much further.
16. In its Reply, Romania argued that the enclo sed nature of the Black Sea is such a decisive
factor that a new maritime delimitation ⎯ such as the present ⎯ cannot depart from the methods
already used in existing delimitation agreements 64. In other words, Romania treated the existing
maritime delimitation agreements in the Black Sea not only as falling into the category of relevant
circumstances, but also as imposing a particular methodology on the Court. Romania also argued
that, since existing agreements in the Black Sea are allegedly “based on the assumption that the
equidistance line leads to an equitable result” despite disparities in coastal lengths, “a dramatic shift
from equidistance” would bring about inequitable results in our case 65.
17. Last Tuesday, the Co-Agent of Romania went as far as stating that:
“il est nécessaire qu’il existe une consistence entr e les méthodes de délimitation
utilisées – en ce sens que l’utilisation dans les nouvelles délimitations de méthodes
largement différentes de celles déjà utili sées a toutes les chanc es d’abou66r à des
résultats inéquitables et incompatibles avec les délimitations existantes” .
18. In other words, Romania insists that ⎯ in order to reach an equitable result in the present
case ⎯ the Court is bound to apply the methodology employed in the two pre-existing maritime
delimitations in the Black Sea, which are promoted to the rank of a “véritable pratique de
délimitation” 67. We were also told that this “prac tice” might be growing to three agreements,
63CR 2008/20, p. 30, para. 47.
64
RR, pp. 200-201, para. 6.37.
65
RR, p. 205, para. 6.50.
66CR 2008/18, p. 58, para. 33.
67CR 2008/18, p. 55, para. 19. - 58 -
according to Professor Crawford’s announcement last week that the on-going negotiations between
68
Romania and Bulgaria may lead to an agreement adopting a similar method . However, that
agreement is not yet concluded, we are not privy to the contents of what is being negotiated, and
only the future will tell if an agreement will indeed be concluded, and on what basis.
19. Ukraine disagrees with Romania’s conten tions as a matter of law. As Ukraine has
69
already dealt with these arguments in detail in the written pleadings , I shall limit myself only to a
few remarks.
20. In general terms, bilatera l agreements cannot affect the ri ghts of third parties and, as
such, the existing maritime delimitation agreemen ts in the Black Sea cannot influence the present
dispute. Moreover, it would be inappropriate to use the methods employed by third States in their
maritime delimitation agreements as precedents automatically applying to the present delimitation
since there is no information as to the factors that lead to the final result in those cases and we are
not appraised of the political, ec onomic, or other considerations ⎯ or quid pro quos ⎯ that led to
those specific delimitations.
21. The starting-point of any delimitation is based on the particular facts characterizing that
case, especially the coasts abutting the relevant ar ea. Each delimitation agreement has its own
peculiarities, and a particular delimitation technique may be warranted in an individual instance in
order to meet different considerations, which coul d be dictated by the geographical, political and
economic context at hand. Consequently, it is misguided to attribute to the maritime delimitations
previously concluded between third States in th e Black Sea any privileged status for the present
delimitation.
22. The existing Black Sea maritime delimitation agreements are now on the screen. This is
a map that was shown by Mr.Bundy in his overview of the case. It is also reproduced at tab5.
The coasts of third States bordering the Black S ea are extraneous to the delimitation between
Ukraine and Romania and thus have no bearing on the method ⎯ or methods ⎯ of delimitation
appropriate as between Ukraine and Romania. The presence of third States may be relevant only to
the extent that the Court may have to take precautions in identifying a precise endpoint of the
68
CR 2008/18, p. 60, para. 2.
6CMU, pp. 43-64, paras. 4.33-4.68; RR, pp. 98-106, paras. 6.4-6.33. - 59 -
delimitation line so as to avoid potential prejudice to States situated on the periphery of the
delimitation area. Beyond that, the pre-existing maritime delimitations in the Black Sea have no
role to play in these proceedings.
23. The conclusion that delimitation agreements cannot by themselves create general rules of
international law rendering any particular method obligatory is supported by the case law involving
States bordering enclosed or semi-enclosed seas. Already in the 1969 North Sea Continental Shelf
cases, the Court set high standards for State practice in delimitation agreements to acquire legal
relevance. The Court stated as follows:
“Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e., the existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis . The States concerned must therefore feel
that they are conforming to what amounts to a legal obligation. The frequency, or
even habitual character of the acts is not in itself enough.” ( North Sea Continental
Shelf, Judgment, I.C.J. Reports 1969, p. 44, para. 77.)
24. Romania ignores this consideration ⎯ i.e., the fact that resort to a particular method of
delimitation may have been motivated by factors that are only known to the relevant Contracting
Parties which may be wholly extraneous to the present delimitation.
25. In the Libya/Malta case, the parties discussed at length the relevance of State practice in
maritime delimitation, particularly with regard to the status of equidistance in international law at
the time. While the Court recognized that State practice could be important in showing “normal
standards of equity”, nevertheless, it rejected the proposition that State practice in general could
impose any method as compulsory. As the Court observed: “Yet that practice, however
interpreted, falls short of proving the existence of a rule prescribing the use of equidistance, or
indeed of any method, as obligatory.” ( Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985, p. 38, para. 44.)
26. The Court instead stressed that “there can be no question of ‘completely refashioning
nature’; the method chosen and its results must be faithful to the actual geographical situation”
(Ibid., p. 45, para. 57).
Madam President, with your permission that takes me to a convenie nt place where I could
stop for today and resume tomorrow with the rest of this speech. - 60 -
The PRESIDENT: Well, Ms Malintoppi, you are in the best position to know what lies
ahead tomorrow and if that is your thought on these matters, the Court will indeed now rise and
resume tomorrow morning for the continuation of Ukraine’s first round.
The Court now rises.
The Court rose at 12.50 p.m.
___________
Public sitting held on Thursday 11 September 2008, at 10 a.m., at the Peace Palace, President Higgins presiding, in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine)