Non-Corrigé
Uncorrected
CR 2008/30
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Monday 15 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 lundi 15 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,
Mr. Simon Olleson, member of the English Bar, 13 Old Square Chambers,
as Counsel and Advocates;
Mr. Gicu Boroşi, Director General, National Agency for Mineral Resources,
Mr. Mihai German, Deputy Director General, Nati onal Agency for Mineral Resources, member of
the United Nations Commission on the Limits of the Continental Shelf,
Mr. Eugen Laurian, Counter-Admiral (retired),
Mr. Octavian Buzatu, Lieutenant Commander (retired),
Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,
as Technical and Cartographic Experts;
Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania, - 5 -
Le Gouvernement de la Roumanie est représenté par :
M. Bogdan Aurescu, directeur général au ministère roumain des affaires étrangères, chargé de
cours à la faculté de droit de l’Université de Bucarest, président de la section roumaine de
l’Association de droit international, membre de la Cour permanente d’arbitrage, membre
suppléant de la Commission de Venise,
comme agent, conseil et avocat ;
M.CosminDinescu, directeur général des affair es juridiques du ministère roumain des affaires
étrangères,
comme coagent, conseil et avocat ;
S. Exc. M. Călin Fabian, ambassadeur de Roumanie auprès du Royaume des Pays-Bas,
comme coagent ;
M. James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat, Matrix
Chambers,
M. Vaughan Lowe, Q.C., professeur de droit internati onal à l’Université d’Oxford, titulaire de la
chaire Chichele, membre du barreau d’Anglet erre, membre associé de l’Institut de droit
international,
M. Alain Pellet, professeur à l’Université de Pari s Ouest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
comme conseils principaux et avocats ;
M. Daniel Müller, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
M. Simon Olleson, membre du barreau d’Angleterre, 13 Old Square Chambers,
comme conseils et avocats ;
M. Gicu Boroşi, directeur général de l’agence nationale des ressources minières,
M. Mihai German, directeur général adjoint de l’agence nationale des ressources minières, membre
de la Commission des limites du plateau continental de l’ONU,
M. Eugen Laurian, contre-amiral (en retraite),
M. Octavian Buzatu, capitaine de corvette (en retraite),
M. Ovidiu Neghiu, capitaine, ministère roumain de la défense,
comme experts techniques et cartographes ;
M. Liviu Dumitru, chef de l’unité frontières et délimitation maritime du ministère roumain des
affaires étrangères, - 6 -
Ms Irina Ni ţă, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the
Netherlands,
Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign
Affairs of Romania,
Ms Olivia Horvath, Desk Officer, Public Diplom acy Department, Ministry of Foreign Affairs of
Romania,
as Advisers.
The Government of Ukraine is represented by:
H.E. Mr. Volodymyr A. Vassylenko, Adviser to th e Minister for Foreign Affairs of Ukraine,
Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law,
National University of Kyiv Mohyla Academy,
as Agent;
H.E. Mr. Oleksandr M. Kupchyshyn, Deputy Foreign Minister of Ukraine,
Mr. Volodymyr G. Krokhmal, Director of the Lega l and Treaty Department of the Ministry of
Foreign Affairs of Ukraine,
as Co-Agents;
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the New York Bar,
Eversheds LLP, Paris,
Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of ParisI
(Panthéon-Sorbonne),
Sir Michael Wood, K.C.M.G., Member of the English Bar, Member of the International Law
Commission,
Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris , Member of the Rome Bar,
Eversheds LLP, Paris,
as Counsel and Advocates;
H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine,
Ms Cheryl Dunn, Member of the State Bar of California, Eversheds LLP, Paris,
Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,
Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty
Department of the Ministry of Foreign Affairs of Ukraine, - 7 -
Mme Irina Niţă, deuxième secrétaire, conseiller juridique à l’ambassade de Roumanie au Royaume
des Pays-Bas,
Mme Catrinel Brumar, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Mirela Pascaru, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Ioana Preda, troisième secrétaire, unité frontières et délimitation maritime du ministère
roumain des affaires étrangères,
Mme Olivia Horvath, responsable du départem ent des relations diplomatiques du ministère
roumain des affaires étrangères,
commceonseillers.
Le Gouvernement de l’Ukraine est représenté par :
S. Exc. M. Volodymyr A. Vassylenko, conseiller du ministre des affaires étrangères de l’Ukraine,
ambassadeur extraordinaire et plénipotentiaire d’Ukraine, professeur de droit international à
l’Académie Mohyla (Université nationale de Kiev),
comme agent ;
S. Exc. M. Oleksandr M. Kupchyshyn, vice-ministre des affaires étrangères de l’Ukraine,
M. Volodymyr G. Krokhmal, directeur du départem ent des affaires juridiques et des traités du
ministère des affaires étrangères de l’Ukraine,
comme coagents ;
M. Rodman R. Bundy, avocat à la cour d’appel de Paris, membre du barreau de New York, cabinet
Eversheds LLP, Paris,
M. Jean-Pierre Quéneudec, professeur émérite de dr oit international à l’Université de ParisI
(Panthéon-Sorbonne),
sir Michael Wood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,
Mme Loretta Malintoppi, avocat à la cour d’appel de Paris, membre du barreau de Rome, cabinet
Eversheds LLP, Paris,
comme conseils et avocats ;
S. Exc. M. Vasyl G. Korzachenko, ambassadeur extraordinaire et plénipotentiaire d’Ukraine,
Mme Cheryl Dunn, membre du barreau de Californie, cabinet Eversheds LLP, Paris,
M. Nick Minogue, Solicitor à la Cour suprême d’Angleterre et du pays de Galles,
M. Oleksii V. Ivaschenko, directeur par intérim de la division du droit international, département
des affaires juridiques et des traités du ministère des affaires étrangères de l’Ukraine, - 8 -
Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic,
Ms Mariana O. Betsa, Second Secretary of th e Embassy of Ukraine in the Kingdom of the
Netherlands,
as Legal Advisers;
Mr. Robin Cleverly, M.A., D. Phil, C. Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of
Ukraine,
as Technical Advisers. - 9 -
M. Maxime O. Kononenko, premier secrétaire à l’ambassade d’Ukraine en France,
Mme Mariana O. Betsa, deuxième secrétaire à l’ambassade d’Ukraine au Royaume des Pays-Bas,
comme conseillers juridiques ;
M. Robin Cleverly, M.A., D. Phil., C. Geol., F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. Borys D. Tregubov, général de division, assistant du chef du service de protection des frontières
d’Etat de l’Ukraine,
comme conseillers techniques. - 10 -
The PRESIDENT: Please be seated. The sitting is now open. The Court meets today for
the second round of oral argument of Romania. Romania will address the Court today until 1 p.m.
and tomorrow from 10 a.m. to 1 p.m. I now call the Agent of Romania, Dr. Aurescu.
Mr. AURESCU: Thank you, Madam President.
I. NTRODUCTORY SPEECH OF THE AGENT OF ROMANIA
Introductory remarks
1. Madam President and Members of the Court, it is an honour for me, as Agent of Romania,
to open this second round of Romania’s pleadings.
2. We have listened with great attention to the arguments displayed by Ukraine last week. In
our view, they did not succeed in casting any legal light on the outstanding issues between the
Parties. Today and tomorrow Romania will reply and show that the delimitation proposed by my
country before the Court fully observes the international law on maritime delimitation and the
method developed by this Court in its ju risprudence, thus being equitable for both Parties in these
proceedings.
3. Madam President, the delimitation line pr oposed by Romania in its written pleadings and
during the first round is constructed in an appropriate way and it is a perfectly reasonable one. It is
supported both by detailed legal arguments and by the evidence.
Presentation of the line claimed by Romania and of the main arguments in its support
[Slide 1 ⎯ the line claimed by Romania]
4. The line claimed by Romania — it is now on the screen, and tab 1 in your folder — starts
from the last point of the State border with Ukrain⎯ pointF ⎯ and follows the arc of circle of
12-nautical-mile territorial sea around Serpents’ Island up to pointX. It then follows the
equidistance line between the relevant adjacent coasts of the two countries up to pointT, from
where it goes south along the median line between the relevant opposite coasts of Romania and
Ukraine. - 11 -
5. The proposed configuration of this line in the delimitation area in the vicinity of Serpents’
Island is supported by at least three concurring arguments. These arguments are not in the
alternative, as suggested by SirMichaelWood 1last week. Arguments in the alternative presume
that other arguments used are incorrect: when the arguments are autonomous, they should all be ⎯
and we believe they all are ⎯ true. They are not arguments that we have devised for these
proceedings. They are the unavoidable product of a proper legal analysis of the facts. All these
arguments establish ⎯ taken separately and altogether ⎯ that the maritime formation called
Serpents’ Island should be disregarded in dr awing the delimitation line between the maritime
spaces of the Parties, with the exception of the 12-m ile territorial sea it already has. Contrary to
2
what Ukraine’s counsel asserted , they do not show the weakness, but rather the strength of
Romania’s position.
6. These reasons why the final line should semi -enclave Serpents’ Island in this manner are
as follows:
First, there exists already a partial delim itation between Romania and the former Soviet
Union, by way of an agreement in force between Romania and Ukraine, which is supported by a
large amount of cartographic evidence, including ma ps and charts officially issued by Ukrainian
State institutions.
Secon tdly, secluded geographic position, its size and th e character of Serpents’ Island do
not justify taking it into account as a relevant coast in drawing the provisional equidistance line and
does not entitle it to any effect beyond the 12-mile territorial sea it already has.
Thirdly, Serpents’ Island is nothing but a rock within the meaning of paragraph3 of
Article121 of the United Nations Convention on the Law of the Sea (UNCLOS), not entitled
continental shelf or exclusive economic zone of its own, because its natural features cannot sustain
either human habitation, or economic life. The recent conduct of Ukraine to “improve” Serpents’
Island, its purposes and intentions behind it show clearly the admi ssion by Ukraine itself that the
natural characteristics of this maritime featur e are those of a rock within the meaning of
Article 121 (3) of UNCLOS.
1
CR 2008/26, p. 44, para. 8 (Wood).
2Ibid. - 12 -
Furthermore, the necessary equitable character of the solution of maritime delimitation in
this case implies taking also into account that the inequitable effects of the transfer of Serpents’
Island in 1948 in the legally dubious conditions I have described in my opening statement two
weeks ago, and the arbitrary manner of establishing the maritime border in 1949 should not be
further magnified by granting Serpents’ Island a supplementary effect to that already produced ⎯
the 12-mile maritime zone surrounding it. Also, the legal compromise agreed when the
1997Treaty on Relations and its Add itional Agreement were concluded ⎯ which includes
Ukraine’s acceptance that the only role Serpents’ Island may play in the delimitation is the one
prescribed by paragraph 3 of Article 121 of UNCLOS ⎯ has to be taken into consideration.
7. Madam President, I will briefly outline the structure of Romania’s arguments just invoked
and rebut some of Ukraine’s arguments. My co lleagues will complete this rebuttal in our
subsequent interventions today and tomorrow.
8. The partial delimitation agreed between Romania and the former USSR in 1949 following
the arc of circle of 12-mile radius around Serpen ts’ Island was confirmed in subsequent documents
of the same character in 1954, 1963, 1974 and is presently in force between Romania and the
successor of the USSR, Ukraine. This delimita tion was agreed by a treaty whose validity was
never contested by Ukraine ⎯ including before this Court. These documents were not ⎯ contrary
to what counsel of Ukraine tried to assert in his speech of 9September2008 3 ⎯ less formal
treaties than the other treaties between the Parties, despite their rather technical character. A quick
check on the annexes of both Parties’ written pleadings where these documents were included
4
shows the careful manner of drafting, in two orig inals, in both official languages of the Parties .
They were duly signed and approved, like any other treaty. Their object and purpose ⎯ which was
land, river and maritime de limitation and demarcation ⎯ were extremely important, and it is no
surprise that they were treated with such attention by the Parties. Their nature was not and it is not
5
that of a tacit agreement, as wrongly asserted by Ukraine’s counsel . Their texts are clear, and
despite the attempts by Ukraine to confuse the Court with various readings of the translations
CR 2008/24, pp. 40-41, paras. 21-22 (Wood).
4
See MR, Anns. 13, 14, 15, 17, 19, 20, 21.
CR 2008/26, pp. 50-51, paras. 25-28 (Wood). - 13 -
provided by the Parties or by the Registry, all these readings converge in the same sense: the
agreed boundary between ⎯ on one side ⎯ the 12-mile zone of Serpents’ Island and ⎯ on the
other side ⎯ the maritime spaces of Romania goes on this arc of circle around or surrounding this
maritime formation — and I quote the text of all these agreements — “leaving Serpents’ Island on
the side of USSR” 6, now Ukraine. Madam President, Ukraine cannot change the clear reading of
these texts.
9. Irrespective of the existence of this partial delimitation ⎯ which cannot be legally
denied — the large amount of State practice and international jurisprudence presented by Romania
shows that maritime formations in a sim ilar situation to that of Serpents’ Island ⎯ insignificant in
the context of the geography of the area, isol ated from the mainland coast of Ukraine and not
integrated with this coast ⎯ are not to be used in the first phase of constructing the delimitation
line in order to generate base points and are eventually to be granted but a minimum effect upon the
delimitation line ⎯ a 12-mile territorial sea at the most. Any different approach would generate a
manifest distortion in the result of the delimitation process, thus creating an inequitable
delimitation. Despite repeated statements by c ounsel of Ukraine last week, they were unable to
demonstrate that Serpents’ Island is integrated with the coast of Ukraine.
10. The geographic reality and the large amount of evidence ⎯ coming from a variety of
sources, including from Ukraine’s ow n annexes to its written pleadings ⎯ as I have shown on
3 September 2008, prove without any shadow of do ubt that Serpents’ Island is nothing but a small
rocky protuberance, which cannot sustain human hab itation or economic life. Thus, it falls in the
category of islands described by Article 121 (3) of UNCLOS ⎯ that is, without any entitlement to
continental shelf and EEZ.
11. Moreover, as I have demonstrated on 4Se ptember, all activities undertaken by Ukraine
in its Potemkin village in the Black Sea not only failed in transforming the factual and the legal
characteristics of Serpents’ Island, but also re present a powerful admission against interest by
Ukraine that the natural features of Serpents’ Isla nd do not allow it to sustain human habitation or
economic life. Indeed, all such acts took place after the critical date and they are not a continuation
6
See MR, Anns. 13, 17, 19, 21, 22. - 14 -
of prior acts, which were not taken before the first decision of 18 December 1995 ⎯ as it was
7
confirmed by Ukraine’s counsel on 12 September 2008 . They are undertaken for the sole purpose
of attempting to improve the legal position of Uk raine in the dispute with Romania. These acts
failed because the adverse natural conditions on Serpents’ Island ca nnot support any such
transformation and lack any legal effect. They cannot be taken into account when deciding upon
the equitable solution of maritime delimitation in this case.
12. I would like to underline that Ukraine, in its presentation last week, failed to contest the
validity of the numerous pieces of evidence displa yed by Romania which prove that the factual
reality of Serpents’ Island is that of a rock th at cannot sustain human habitation or economic life:
the antique authors, the many Romanian sour ces dating from a period when the appurtenance or
involvement of Serpents’ Island in any maritime delimitation process was not in question, and not
even the evidence in th e same sense from the annexes Ukraine itself included in its written
pleadings. Nor did it address Romania’s rebuttal of the arguments in Ukraine’s Rejoinder.
Ukraine’s counsel limited herself to repeating the same unsubstantiated ideas from the Rejoinder,
without adding anything else.
13. Instead of addressing the large amount of evidence displayed, Ukraine relied upon
inadmissible self-serving retranslation of its own annexes, which Ukraine now “discovered” that
they are allegedly wrongly translated by Ukraine it self when they were filed as evidence, again by
8 9 10
Ukraine, with the Court . It misquoted Romania’s Agent . It dismissed as unreliable the
numerous concurring presentations of the Ukrainia n press items which confirm these facts: that
Serpents’ Island is nothing but an uninhabitable rock, which cannot support economic life even at
the most basic level.
14. In his speech last week, Ukraine’s Agent a sserted, first, that “Romania’s attempts to
bring within the scope of these legal proceedings issues relating to Ukraine’s rights in respect of its
11
sovereign territory are misplaced” and, secondly, that the 1948 Protocol by which USSR illegally
7CR 2008/29, p. 12, para. 35 (Malintoppi).
8
CR 2008/29, pp. 13-14, paras. 41-42 (Malintoppi).
9See CR 2008/29, p. 14, para. 43 (Malintoppi) versus CR 2008/20, p. 56, para. 6 (Aurescu).
10CR 2008/29, p. 14, para. 44 (Malintoppi).
11
CR 2008/24, p. 11, para. 6 (Vassylenko). - 15 -
seized Serpents’ Island was not illegitimate or unequal, and does not contradict the 1947 Paris
Peace Treaty. Ukraine’s Agent added that the Protocol was a valid and binding instrument the
effect of which was confirmed by many subseque nt agreements duly ratified by the Romanian
12
Parliament “contrary to the impression given by the Agent of Romania” .
15. As to the first point, as I clearly stated in the opening of Romania’s first round of
13
pleadings, there are no territorial claims between the Parties and Romania does not seek now
before the Court to annul the injustices of 1948 and 1949 despite their highly controversial
14
nature . What Romania considers of utmost importan ce is that the inequitable effects that these
past injustices have already produced should not be further magnified by allowing Serpents’ Island
to generate maritime spaces beyond the 12-mile territorial sea it has now as a result of these illegal
transactions. As to the second point, I will respectfu lly refer the Court to the arguments that I have
shown on 2September2008 15. The 1948Protocol was deemed to specify the line of the State
boundary, apparently in accordance with the Peace Treaty, but in reality it changed the boundary in
breach of this document. Indeed, in manifest contradiction with Article1 of the Peace Treaty,
according to which it was obvious that Serpents’ Island was under Roma nian sovereignty,
Article 1 (b) of the Protocol reads: “The Island of Zmiinyi (Serpilor)... shall become a part of
USSR.” 16 Also, under its Article4, the Protocol was not submitted to ratification, which was
extremely unusual for such kind of sensitive documents dealing with border issues, and ⎯
moreover ⎯ with territorial cessions.
16. Also in connection with the same issue, Ukraine’s Agent described as “distasteful to
17
rehearse historical arguments that have no relevance for the Court’s present task” . Madam
President, the presentation of Romania of these hist orical facts does have relevance in the case, as
they are intrinsically linked with the background of this dispute that you have to solve. Historic
facts cannot be ignored as their understanding may contribute to shaping the best response of
1Ibidem.
1CR 2008/18, p. 16, para. 6 (Aurescu).
14
CR 2008/18, p. 25, para. 30 (Aurescu).
15
CR 2008/18, pp. 22-24, paras. 24-27 (Aurescu).
1Ukraine’s judges’ folder, tab 12; emphasis added.
1CR 2008/24, p. 12, para. 8 (Vassylenko); emphasis added. - 16 -
international law to the problems it has to solve, especially when these facts represent violations of
international law. It would be also unethical to expand the effects generated by manifest violations
of international law. As set forth by UNCLOS and stated constantly in your jurisprudence, any
solution of maritime delimitation has to be equita ble. This solution cannot but take into account
that it would be both unethical and inequitable to further amplify the already inequitable effects of
the illegal conduct of the former USSR, out of which Ukraine, its successor, already drew benefits.
17. Ukraine’s Agent also stated that there was no “package deal” in 1997:
“I headed the Ukrainian team at the fi nal stage of negotiations leading to the
1997 Treaty and Exchange of Letters. No deals were ‘struck’ beyond the formal
framework of these instruments . . . neither the text of 18e Exchange of Letters nor the
unilateral declaration establishes a ‘package deal’ . . .”
18. Madam President, I have already shown in my speech on 2Septemberthe context and
the terms of the bilateral legal compromise of 1997. In fact, the mentioned compromise was
reached, in 1997, when the Treaty on Relations and the Additional Agreement were concluded, and
when the head of the Ukrainian delegation for negotiations ⎯ already since 1996 ⎯ was
Mr.AntonButeiko, the second Agent appointed by Ukraine in this case. As regards the second
argument, those of us who have negotiated and concluded agreements know perfectly well that
there is no practice of specifying expressly in the te xt of the agreement that a certain package was
agreed: this results from the context and the conduc t of the parties as corroborated by the text of
the agreement.
19. This is precisely the case of the 1997 Agre ement. The context results clearly from the
intervention of the Romanian Minister for Fo reign Affairs before the Romanian Senate
of 4 December 1995, cited in my speech of 2 September 19, a piece of evidence included by Ukraine
itself in the annexes of its Counter-Memorial, but which Ukraine’s Agent overlooked in his
intervention last week. The conduct of Ukraine is also clear: although its own diplomatic practice
is to react quite promptly to the positions of Romania ⎯ for instance, in the case of the Romanian
declaration issued when the Border Régime Treaty was signed in 2003, and entered into force, in
2004 ⎯ Ukraine did not object or react at all when Romania ratified UNCLOS in 1996, or when
18
CR 2008/24, pp. 12-13, paras. 11-12 (Vassylenko).
1CR 2008/18, pp. 25-26, paras. 32-36 (Aurescu). - 17 -
the Treaty on Relations and the Additional Agreemen t were signed in June 1997, and entered into
force in October 1997 or, in 1999, when Ukraine became a party to the United Nations Convention
on the Law of the Sea. Last, but not least, the text of the 1997 Additional Agreement is consistent
with the mentioned context and conduct. In its text Romania accepted the territorial status quo,
while Ukraine agreed that the first principle of delimitation in paragraph 4 should be Article 121 of
the UNCLOS, at a time when Ukraine was not party to the Law of the Sea Convention, but it was
well aware of Romania’s understanding of this Article. Indeed, Ukraine’s counsel, in his speech of
20
9 September 2008 , acknowledged that Romania’s position that “the Island’s entitlement to
maritime space should be limited to the 12-mile territorial sea agreed in 1949” was well-known
already during the Romanian-Soviet negotiations. He continued: “That was nothing new. That
Romanian position explains . . . [Romania’s] . . . efforts at the Third United Nations Conference on
21
the Law of the Sea” regarding Article 121 (3) .
General assessment of Ukraine’s arguments in support of its claim line
20. Madam President, ProfessorCrawford will discuss Ukraine’s claim line in a couple of
22
minutes, which is about all the time that Professor Quéneudec spent on it last week . But, as to the
arguments in support of that line, it is not too mu ch to say that the only “rule” on which Ukraine’s
reasoning is based in the present case is “repetiti on”, the golden canon of advertising. I have
counted not less than 68 times when Ukraine’s couns el mentioned “the marked disparity of coastal
lengths” or a similar formula. That is almost once every ten minutes of their pleadings, which is,
Ithink, a record in maritime delimitation pr oceedings. But besides Ukraine’s inadequate
arguments why its entire coast is to be considered as relevant ⎯ which do not stand the test of both
law and geography in this case ⎯ Ukraine totally failed to explain exactly how its provisional
“equidistance” line is shifted to reach the fina l position proposed by Ukraine as an equitable
solution.
21. Nor did Ukraine provide any explanation why its proposed delimitation line coincides
perfectly with the line advocated by Ukraine during negotiations, which was the result of a
2CR 2008/24, p. 45, para. 40 (Wood).
21
Ibidem.
2CR 2008/29, p. 43, paras. 105-109 (Quéneudec). - 18 -
“method” manifestly in breach of the rules of delimitation agreed by the Parties in 1997, as I
23
demonstrated in my first speech of Romania’s first round . The only explanation is that not only
that line, but also the line supported by Ukraine before the Court, do not correspond to a correct
application of the method of delimitation developed by this Court.
22. Madam President, Ukraine strives to shift the attention of the Court away from its lack of
arguments as to the construction of its line, and on to the issue of coastal length, which is now the
alpha and omega of its case, its mantra: in Ukraine’s view, it plays an overwhelming role ⎯ both
as an alleged relevant circumstance and as the main factor justifying, when performing the equity
test, the line it proposes. Like its mysterious shifting of its wrongly constructed “equidistance”
line, this shift of attention cannot succeed. Ukrain e claims now that Serpents’ Island is not central
to its case, and that it is Romania that puts emphasis on it. But under Ukraine’s own method,
Serpents’ Island plays the first and most important role: the first step of its method is to draw the
provisional equidistance line between the Serpents’ Island and the whole Romanian coast. This
move makes 300m of the coast of a minuscule rock, isolated and not integrated with the
continental coast, a substitute for almost the entire mainland coast of Ukraine! The same coast that
Ukraine would like to use in its entirety when it comes to the following stages of delimitation. But,
as Romania will show today and tomorrow, this attempt has no basis in the applicable international
law.
23. Another Ukrainian mantra was the Sulina dyke. Ukraine tried hard to put Serpents’
Island on the same footing as the Sulina dyke, and at the same time to discard the legal importance
of the latter. Again, repetition was the golden rule. On no less than 35 mentions ⎯ that is, on
average, once every 20 minutes of pleadings ⎯ it said that the Sulina dyke is a man-made feature
jutting well out from the coast. We will show in our presentation why this allegation is
ungrounded.
24. Madam President, there is a famous sket ch based on the writings of a classic Romanian
author about a professor examining his student. It is known as the “cucumber” sketch. The story
goes like this. The professor asks the student to give the lesson on tomatoes. And the student
23
CR 2008/18, p. 22, para. 21 (Aurescu). - 19 -
answers: “The tomato is a ve getable, as is the cucumber. The cucumber belongs to the plant
family of Cucurbitaceae and has 90 per cent water.” Then the professor asks the student what is a
potato. And the student answers: “Well, the potato is a vegetable, as is the cucumber, which has
90 per cent water.” Well, then the professor asks wh at the student can tell him about mathematics.
And the student answers, mathematics is a science, exactly as biology which deals with vegetables,
among them the cucumber, which has 90 per cent wate r. Whatever the professor asks the student,
he refers only to the cucumber! And this is Uk raine’s method here. Whatever Ukraine tries to
argue in this case, it comes to the same cucumber ⎯ its alleged coastal predominance. But unlike
the cucumber in the sketch, Ukraine’s “cucumber” is not entitled to the water it claims.
The structure of Romania’s pleadings in the second round
25. Madam President, I will briefly outline th e structure of Romania’s pleadings today and
tomorrow. ProfessorCrawford, who with your permission will follow me, will show that
Ukraine’s claim line and its interpretation of the relevant coasts and the relevant area are
unfounded. Then my colleague and friend Cosmin Dinescu, Co-Agent of Romania, will briefly
address Ukraine’s argument on effectivités. He will be followed again by Professor Crawford, who
will discuss Ukraine’s arguments against the pre-existing partial delimitation around Serpents’
Island. SimonOlleson will complete this presenta tion by dealing with Ukraine’s dismissal of the
numerous maps and charts displayed by Romania. The last presentation today will address
Ukraine’s arguments against the use of the Sulina dyke in this delimitation and this will be the task
of Daniel Müller.
26. Tomorrow, Professor Lowe will present the construction of Romania’s equidistance line
and ProfessorPellet will address the issue of the relevant circumstances in this case. Then
Professor Lowe will address the proportionality test of the line proposed by Romania, which shows
its equitable character. I will close Romania’s pleadings by presenting Romania’s conclusions and
submissions.
27. Madam President, that concludes my presentation. I thank the Court for its attention and
I would respectfully ask you to call Professor Crawford to continue Romania’s presentation.
The PRESIDENT: Thank you, Dr. Aurescu. We now call Professor Crawford. - 20 -
CMRr. WFORD:
II. UKRAINE ’S CLAIM LINE IN THE CONTEXT OF THE RELEVANT COASTS AND
THE RELEVANT AREA
Introduction
1. Madam President, Members of the Court, a remarkable feature of Ukraine’s presentation
last week was its reticence as to its own claim line. By lunchtime on Thursday ⎯ after three days
of presentations ⎯ there had been no defence whatever of the claim line. It had only once been
displayed on the screen, by Mr. Bundy (tab 10) 2. Ms Malintoppi, to be fair, showed it a few times,
but she made no attempt to defend it.
2. By contrast, counsel lined up to deal with my argument about the 1949Agreement.
Mr. Bundy, Sir Michael Wood, Ms Malintoppi successively attacked it. Between them they spent
three times as long in attacking the argument as I did in making it! Perhaps they are a bit
concerned at the 31 maps showing a maritime bound ary around the Island! But however that may
be, they seemed as shy as a bongo about presenting their own line. Point X might have been
25
mysterious to them ⎯ though it is shown in essentially the same place in 19 of our maps . But
how they arrived at their claim line remained much more mysterious. They seemed to be playing
“pass the parcel” with the heart of their claim.
3. Thus it was on Friday we waited with ba ted breath for what was no doubt going to be a
detailed presentation and defence of their final lin e. Professor Quéneudec was scheduled to speak
for 80 minutes ⎯ at last they had set aside a decent amount of time.
4. But what did ProfessorQuéneudec do? He talked about Sulina dyke, the neglected
promontory of Cape Tarkankhut, the three base poi nts nestled within 300m of each other on
Serpents’ Island; anything but the real point.
[Délimitation finale selon l’Ukraine ⎯ tab 83 of Ukraine’s judges’ folder]
24CR 2008/24 , p. 34, para. 67 (Bundy).
25MR, Ann.16, Soviet map.No. 552 (1957) (Romania’s first round judges’ folder, tabV-17); MR, Ann.18;
MR, Ann. 19; MR, Ann. 20; MR, Ann. 21; MR, Ann. 23;MR, Ann. 25; MR, Ann. 26; MR, Ann. 27; MR, Ann. 31;
MR, Ann. 32; MR, Ann. 33; MR, Ann. 35; MR, Ann. 36; MR, Ann. 38; MR, Ann. 39; MR, Ann. 41; Lighthouses of
Ukraine, p. 50 (Romania’s first round judges’ folder, tab V-1). - 21 -
5. So we waited still . . . Coffee came and went. Then at 12.12p.m. on Friday, after more
than tenhours of oral argument, their claim line was justified. The justification took
three minutes 26. The claim line was shown on the screen for 63 seconds (tab 83). You can see it
on the screen now, in case you missed it.
6. And how did ProfessorQuéneudec justify th e line? Let me quote him. Unusually for
arguments made by counsel before the Court, it is more economical if I use his actual words ⎯ and
his complete words. He said, and this will not take long :
“L’un des moyens de prendre en compte, selon une formule souple et pratique,
l’ensemble des circonstances pertinentes consiste à faire subir à la ligne d’équidistance
provisoire un glissement [un glissement] vers l’ouest à partir du point B, afin de
parvenir à un tracé qui tienne pleinement co mpte de la très grande disproportion de
longueur des côtes.
Dans ce mouvement de glissement de la ligne provisoire, il est suggéré
d’éliminer le saillant constitué par le point C, de sorte qu’au-delà du point B la ligne
de délimitation soit constituée par une ligne droite suivant l’azimuth de 156°.
Ce glissement de la ligne d’équidistance en direction de la côte de la Roumanie
ne correspond à aucun ratio mathématique. Il représente un ajustement d’une certaine
importance, sans doute ; mais il n’est entouré d’aucun ‘mystère’ . . . En alignant ainsi
la ligne provisoire d’équidistance sur une ligne droite, l’Ukraine a été mue par un
souci de simplification, en même temps que par un désir de parvenir à un tracé
présentant un intérêt pratique.” 27
That is it, you will be pleased to know!
7. In this passage ProfessorQuéneudec made the following points, that is the total
justification:
⎯ First, a way of adjusting the line is to move it to the west “selon une formule souple et
pratique”.
⎯ Secondly, it should be moved “à partir du point B”.
⎯ Thirdly, the bend at point C should be removed.
⎯ Fourthly, “ce glissement . . . ne correspond à aucun ratio mathématique”.
⎯ Fifthly, the line is a straight one, which is again practical.
8. Now some of these things are true: the line is an azimuth ⎯ but why that azimuth? The
bend at pointC is removed, but why should it be? If it had been kept, the correspondence to
26
CR 2008/29, p. 43, paras. 106-108 (Quéneudec).
2CR 2008/29, p. 43, paras. 106-108 (Quéneudec). - 22 -
mathematical proportionality of areas to coasts would have been closer. The line departs from
point B ⎯ but why not from pointF? The process is undoubtedly supple, “souple”. Indeed it
carries suppleness to the extreme. For each of these things could have been different, and there is
no ground given for one line rather than another. It is true, as you know, that there is an irreducible
element of judgment and discretion in maritime delimitation ⎯ but there must be some basis on
which a line of this magnitude and effect is drawn.
9. Yet that is the full extent of Ukraine’s justification of the location of its line after 12 hours
.
A “glissement”! And so saying, Professor Quéneudec slipped away.
10. Madam President, Members of the Court, th ere is an important forensic consequence of
Ukraine’s shamefaced presentation of its line. If, as we assume, Ukraine re turns to these issues in
the second round, proposing or impl ying another line than their cl aim line, Romania will not have
been able to respond. If by good arguing the law is to be known, so also by refusal to expose one’s
case to critical argument a party deprives you of the assistance ⎯ from both sides ⎯ to which you
are entitled.
11. Madam President, Members of the Court, the purpose of this presentation is twofold.
First, I will analyse Ukraine’s claim line, and will show that it entirely lacks justification in the law
and practice of maritime delimitation. Secondly, I will revisit the issue of relevant coasts and
relevant areas.
12. The two issues are connected. Ukraine’s claim can be summarized as follows: it derives
a case for adjustment of an equidistance line fro m the disproportion of relevant coasts, then it
projects that disproportion through the focal lens of Serpents’ Island like a magnifying glass ⎯ by
way of a further adjustment of a provisional line for the drawing of which Serpents’ Island is the
overwhelming feature. An initial problem with Uk raine’s case is that it has the wrong coasts and
the wrong relevant areas. But even if it were right about both, its method of using them is
fundamentally flawed. Indeed, as we heard it fro m Professor Quéneudec on Friday, it admits to no
method at all, other than the method of the dance floor, slipping and sliding.
13. But these two issues are separate as well. The Ukrainian claim line cannot be defended
by experienced counsel such as they possess; they do not seriously maintain it, and it will shortly
be disposed to the dustbin of delimitation history. But the relevant coasts and areas do remain an - 23 -
issue, as the Parties agree. And this case presen ts a novel question for the Court. How do you
delimit a maritime boundary in a confined area wh en one party has longer coasts? Ukraine’s
answer depends ⎯ entirely ⎯ on the fortuitous presence of a tiny island which now happens to
belong to it. But the disparity in coastal lengths ⎯ to which I will return in a moment ⎯ has
nothing to do with Serpents’ Island. Serpents’ Island contributes nothing to these coastal lengths 2.
There could be a dozen Serpents’ Islands around Odessa and no one would regard them as in the
slightest degree relevant to a delimitation off the Dan ube delta. It is not an intelligible principle of
delimitation that where a State has a tiny island in the general vicinity of the land border, this can
be used to generate a massive deflection of the line just because the State happens to have longer
coasts somewhere far away. There is no precedent in maritime delimitation for an island having
such effect of magnifying coastlines to which it is as a matter of geography entirely unrelated.
14. In fact the normal outcome where an island lies just in front of the coastline of another
State is that the island is ignored or at least heavily discounted. This has happened even to big,
inhabited islands such as the Channel Islands. Similarly when small islands are located close to the
mainland coast equidistance line, as with the Honduran cays. In an adjacent coast situation, it does
not depend on the island being on the “wrong side” of the line; it is sufficient that the location of
the island relative to the mainland coast line has a disproportionate effect. The Moscow Protocol
of 4February1948 correctly described Serpents’ Island as “located in the Black Sea eastward of
29
the mouth of the Danube” . The incidental possession of a tiny island by one or other of the
coastal States in situations of this kind cannot be allowed to produce such vast differences in
outcome as Ukraine’s position dictates.
15. Thus the question becomes: how would the received method of maritime delimitation be
applied in this geographical situ ation if Serpents’ Island is disr egarded? Once that question is
answered it is possible to ask a second question: gi ven the presence of Serpents’ Island, the line so
drawn may need to be modified. If Romania is right that the maritime zone attributed to the island
is 12 miles and no more, the second question answers itself ⎯ you superimpose the 12-mile line.
But the same answer would apply in order to achieve an equitable result in any event. No island of
28
Cf. CR 2008/19, p. 12, para. 8 (Crawford); cf. CR 2008/29, p. 32, para. 50 (Quéneudec).
2CMU, Ann. 24. - 24 -
this size could possibly have any additional effect on a delimitation that was otherwise equitable
between the parties ⎯ unless it was thought that by getting 12miles the State was getting too
much!
16. Yet Ukraine never asks the first questi on, except by inference through its repeated
references to the decision of the Chamber in the Gulf of Maine case, a case it never stops to
analyse. I will return to Gulf of Maine shortly; but my present point is simple: Ukraine has
offered no articulated justification of any kind fo r the location of its claim line, or of any other
claim line. All it has done, following ProfessorQuéneudec’s three-minute glissade on Friday, is
effectively to throw itself on the mercy of the Court.
Ukraine’s adjusted line
17. Madam President, Members of the Court, you may have noted that I did not comment on
Professor Quéneudec’s fourth point, where he said: “ce glissement . . . ne correspond à aucun ratio
mathématique” 30. Mr.Bundy for his part stoutly denied that Ukraine’s claim reflected an
31
arithmetical ratio: he admits that this would not be a proper procedure . Itisatsomelevel
entertaining to hear counsel vocally denying that they have a particular, prohibited reason for doing
something ⎯ here, adjusting their provisional line in accordance with a mathematical ratio ⎯
especially when they can offer no other reason.
[Tab 2: construction of Ukraine’s claim line]
18. But it is only half true that “ce g lissement... ne correspond à aucun ratio
mathématique”. For Ukraine’s claim line before you is exactly the same as the claim line put
forward in the negotiations, a nd we do know how that was constructed. As you can see on the
screen (tab2 in your folders), it was done by splitting the difference between the provisional
equidistance line giving full effect to Serpents’ Island ⎯ that is the red-dashed line ⎯ and the
coastal ratio line, which is the blue line proceedi ng practically due south from point F. Ukraine’s
position in the negotiations, was a line which split the difference between these two lines.
30
CR 2008/29, p. 43, para. 108 (Quéneudec).
3CR 2008/28, p. 29, para. 42 (Bundy). - 25 -
19. Now it is not unknown as maritime claims move from negotiation to adjudication that a
party maintains the essential reasoning underlying its position, but modifies its position to some
degree. Courts and tribunals are sensitive to over-claiming, since a compromise between claim
lines tends to reward the State making the more extreme claim. It is less common for a litigant to
do what Ukraine has done in coming before this Court ⎯ that is, to maintain its line but to abandon
the reasons for doing so ⎯ reasons for the line. But the coincidence of the lines is telling, and it
means that Ukraine’s claim line gives half effect to its coastal ratio line, moving from a line giving
full effect to Serpents’ Island. In a phrase, one might describe that as the inequitable in pursuit of
the inadmissible.
20. One final observation about Ukraine’s line. We heard a great deal last week about
Romania’s recessed coastline south-west of the Sacalin peninsula and down to the Bulgarian
border. I will analyse it a little further in a moment, but it was said to face south-east, towards
Bulgaria and Turkey, and to be hardly relevant to the delimitation 32. The point I want to make is
this: the two lines which Ukraine has used to construct its claim line are both insensitive ⎯
completely insensitive ⎯ to the configuration of Romania’s south coast. Ukraine’s provisional
equidistance line does not depend on any base point south of the Sacalin peninsula. Its coastal ratio
line does not depend on the configuration of the coast either: it would be the same or even more
extreme if Romania’s coastline proceeded due sout h from the Sacalin peninsula, since (on that
hypothesis) Romania’s coastline would be even shor ter. Another of Ukraine’s mantras is “coastal
configuration, coastal configuration” ⎯ yet coastal configuration is ignored in constructing its
line ⎯ except for the configuration of Serpents’ Island, the starting-point for this utterly
inadmissible procedure.
[End tab 2]
Relevant coasts and relevant areas
21. Madam President, Members of the Court, I pass to the second part of this presentation,
the identification of relevant coasts and relevant areas.
[Tab 3: the Party’s opposite coasts proceeding from point Z]
32
CR 2008/28, p. 47, para. 52; p. 48, para. 57 (Bundy). - 26 -
22. As I have said, last week Ukraine te nded to focus on the northerly part of the
delimitation, in particular segments3 to 7 ⎯ despite the fact that no delimitation takes place
between those segments. At the same time they we re dismissive of our southern coast: you can
recall Mr. Bundy’s graphic which was tab 22 in their folder. For these reasons it is useful to start in
the south, at the tripoint between Ukraine, Romania and Turkey. We have called it point Z. It is an
agreed point in the sense that it is the final poi nt on the provisional equidistance lines drawn by
both Parties.
23. Now Mr.Bundy said that most of the southern cost of Romania pointed in the wrong
direction: the arrows on the screen are his arrows. But the same exercise can be performed on the
opposite Crimean coastline, segment 8, as you can see. Some bits of it point towards Turkey, some
towards Bulgaria, some towards Romania. Ye t as you can see, looking at these coastlines, three
things are obvious. First, the opposite coasts iden tify themselves readily. Secondly, they are as
coasts go, similar in outlook and configuration. Thirdly, they are of approximately equal length. If
the delimitation was to take place solely between these coasts, that would clearly enough call for an
equidistance line, and there would be no reason to adjust it.
24. I pause to note, however, that even he re between more or less equal and opposite
coastlines, Professor Quéneudec’s glissade has a pronounced effect. Uk raine’s claim line is miles
to the west and heading even further north-w est towards the delta. That between obviously
opposite coasts.
25. As we move north along the equidistance line, however, we soon reach a point, below
the latitude of Constan ţa, well below the latitude of Cape Sarych, where Ukraine’s equidistance
line based on Serpents’ Island takes effect. It does so at a point where the dominant coasts are still
the opposite coasts that I have identified. We ar e nowhere near a tripoint with any coasts to the
north of the delta. Yet the opposite coasts which st ill dominate this part of the delimitation have
ceased to be relevant to Ukraine’s drawing of the line.
[End tab 3]
[Tab 4: Serpents’ Island as displayed (1)]
26. Now on the scale of the western basin of th e Black Sea, by the way, Serpents’ Island is
wholly insignificant. Despite the fact that it h as this transmission effect of northern coasts. Our - 27 -
friends opposite have taken to displaying Serp ents’ Island in various ways. The black dot
surrounded by green was tab 5 in their bundle, it is 6.3 sq km in size and has a perimeter of 9 km.
This compares with the real thing, which at 17 hectares is about 37 times smaller than that dot. On
these scales you could not see it.
[End tab 4]
[Tab 5: Serpents’ Island as displayed (2)]
27. Another device was to show Serpents’ Island with concentric green circles, as in tab4.
The outer green circle has an area of 103sqkm, 620 times larger than the island. Realizing just
how small it is on these scales brings home just how large an effect it has on the all-points
equidistance line. The Court will remember what th ey say about real estate: location, location,
location. And yet the all-points equidistance line is not their claim line, which is off to the west.
[End tab 5]
[Tab 6: the adjacent coast delimitation]
Relevant coasts
28. I turn to the subject of the relevant adjacent coasts, shown on the screen now. Although
the distinction between adjacent and opposite coast s has been accepted by Ukraine in multilateral
and bilateral treaties and in its own legislation, th ey reject it for the purposes of this delimitation:
we murder their case if we dissect their coastline in any way. So you have heard Mr. Bundy say, in
33
effect ⎯ “the coasts, the whole coasts and nothing but the coasts” . Now it is true that the basic
principle of maritime delimitation is the same for adjacent as for opposite coasts: it is stated as
such in the 1982 Convention. It is also true th at there are situations where coasts are obviously
within a delimitation area but cannot readily be classified as adjacent or opposite: this is especially
true for small islands. But there are still importa nt practical differences between the two. For
example coastal irregularities in an opposite coast situation are less intrusive than they are as
between adjacent coasts: adjacent coasts magni fy the differences, opposite coasts reduce them.
Thus we adhere to our analysis of relevant co asts made last week, it is a reasonable estimate of
relevant adjacent coasts in accordan ce with your case law. In partic ular, it is not enough to make
3CR2008/28, pp.51-53, paras.73-82 (Bundy); see al so CR2008/26, pp.21-25, paras.8-24 (Bundy);
CR 2008/26, pp. 21-22, paras. 5-14 (Bundy). - 28 -
coasts relevant to observe that they are with in 400 miles of each other and thus generate
overlapping entitlements. That was true of coasts held irrelevant in both Jan Mayen and
Tunisia/Libya 34.
[End tab 6]
29. Ukraine’s approach to the relevant coast s issue comes down almost exclusively to the
Gulf of Maine case, to which it clings as to a lifebelt in stormy seas. In effect it transposes Gulf of
Maine to the western basin of the Black Sea. It asserts that the basin is dominated on all three sides
by its coasts, leaving Romania cowering in the corner. Instead of the “Gulf of Maine” we have the
“Gulf of Ukraine”.
[Tab 7: the “Gulf of Ukraine”: possible closing lines]
30. Now Ukraine’s vision of the “Gulf of Ukra ine” and Romania’s subordinate role in it can
be seen from the graphic on the screen, which is tab 7 in your folders. The other day Mr.Bundy
drew a closing line across from Cape Sarych to Vama Veche, the border with Bulgaria 35. But there
is no basis for doing so. I would make the following points.
(a) As a matter of toponymy, the north-western basin of the Black Sea is not regarded as a distinct
entity and it has no name of its own.
(b) This is despite the fact that geographers have not hesitated to give names to gulfs, bays and
even seas within the Black S ea which are distinct entities ⎯ Karkinits’ka Gulf, for example, a
gulf if ever there was one.
(c) Except in special markedly defined situations ⎯ the Gulf of Maine was one of them ⎯ it is
rather arbitrary to draw closing lines across areas of water encompassing several hundreds of
miles, especially when we have no conventiona l terminology to guide us. The line Mr. Bundy
drew has no significance in the law of the sea whatev er, in particular for maritime delimitation.
But if one were to distinguish a geographical sub-area here, the closing line would not be the
one drawn by Mr.Bundy, but a line we suggest drawn from Cape Khersones to the Sacalin
peninsula. And the observation which immedi ately comes to mind when one does so, as is
done on the screen, is that the bulk of Romani a’s coastline lies outside this line, looking across
34
CR 2008/18, pp. 65-66, paras. 15 and 16; p. 69, paras. 23-25 (Crawford).
3CR 2008/29, p. 50, paras. 32-35 (Bundy). - 29 -
the whole of the Black Sea at the southern tip of the Crimean peninsula and, much more
distant, the coasts of Russia and Georgia.
(d) In short, Romania as a coastal State is at large in the Black Sea. It is not to be confined by
Ukrainian closing lines, arbitrarily drawn, or by Ukrainian visions of local dominance.
[End tab 7]
[Tab 8: the Gulf of Maine]
31. Ukraine made much of the analogy with the Gulf of Maine case, but the following points
should be made about the decision of the Chamber. I start with a few points about the coastal
configuration which has to be understood to understand the case at all:
(a) The Gulf of Maine is an unusually well-defined entity. It is (except for the Bay of Fundy)
essentially rectangular in shape.
(b) The entrance is much wider than it is deep.
(c) Outside the notional closing line of the Gulf, the open Atlantic coasts of Canada and the
United States are aligned with the closing line: in other words they are at an orientation of 90°
or so to their opposite coasts within the Gulf. They do not look into the Gulf at all and they are
obviously irrelevant to the delimitation of waters, not merely within the Gulf, but also to the
south-east of the closing line on which they do not encroach.
(d) What the delimitation position would have been if the opposite coasts of either the United
States or Canada had continued out into the Atlantic one can only speculate. Yet that is
Romania’s position here, with its southern coastline.
32. As to the decision itself I would make five points:
(a) It is the decision of a chamber, not the whole Court.
(b) It is an outlier in delimitation decisions, the only occasion where the ratio of coastal lengths has
generated a precise adjustment of a closing line.
(c) That operation, eccentric and even fussy as it now seems, was only possible because of the
combination of two special facts: first, the regular geometry of the Gulf itself; secondly, the
absence of any relevant coastal frontage of the pa rties outside the Gulf capable of affecting the
allocation of open Atlantic EEZ areas beyond the no tional closing line of the Gulf. In other
words, the relevant EEZ areas in the Atlantic were, in this special situation, evidently - 30 -
attributable to the coasts within the Gulf and therefore they could be divided in accordance with
the ratio of those coasts. The ratio of those co asts could, in that special situation, create or
generate a transfer to waters beyond.
(d) That situation is unique. It has never been replicated. It is certainly not the case here.
(e) Yet in fact the line actually drawn by the Chamber did not depart very much from an
equidistance line. The line drawn, discountin g a small Canadian island, slightly favoured
Canada, the State with the shorter coastline in the Gulf.
33. As to relevant coasts, given the location of the land boundary, there was no coast within
the Gulf that was evidently irrelevant (except for the interior coasts of the Bay of Fundy), just as
there were no coasts outside the Gulf that were relevant to the delimitation. The issue of the Bay of
Fundy nonetheless provoked disagreement if not dissent from Judge Schwebel (I.C.J. Reports
1984, pp. 354-357).
34. Mr.Bundy uses Gulf of Maine to assert the relevance in the present case of segment7,
the north-facing coast of the Karkinits’ka Gulf 36. But the two situations are completely different.
What Mr. Bundy calls the “back” of the Bay of Fundy, or the “back” of Nova Scotia, was only the
“back” when looked at from the Atlantic. It fronted directly on to the land boundary. If the land
boundary between the two States had been somewhere just to the north of Cape Cod, it is doubtful
whether the coasts of the Bay of Fundy would have been relevant at all.
35. But however that may be, our situation is completely different and the opposite coasts of
the Karkinits’ka Gulf, far distant from the land bound ary and the scene of this delimitation, cannot
possibly be relevant here. Nor can a closing line drawn across or anywhere within the Karkinits’ka
Gulf be treated as a surrogate for its irrelevant coast.
[End tab 8]
[Tab 9: projections from Ukraine’s south-facing coast]
36. I turn to the question of Ukraine’s south-f acing coast, the western part of segment 6. As
I said in the first round, this does look out into the open waters of the western basin, though it is
remote from the area of the delimitation. Thus it is on average— the western coastline of
36
CR 2008/26, p. 35, para. 65; p. 36, para. 70 (Bundy); CR 2008/28, p. 47, para. 54 (Bundy). - 31 -
segment6— 100miles or so from Serpents’ Isla nd, and this in a region where the average
distances to other parts of the Ukrainian coast are much less than 100 miles.
37. Now, it is of course true that Romani a’s east-facing coast on the delta and Ukraine’s
south-facing coast generate overlapping potential entitlements. Actually so does Ukraine’s
south-facing coast generate overlapping potential entitlements with the coasts of Bulgaria and
Turkey: that does not make it relevant to either . If there were to be nonetheless hypothetically a
delimitation between Romania’s delta coast and Ukraine’s south-facing coast, the delimitation line
would be well to the north, quite irrelevant to the disputed area in the present case.
37
38. Last week Mr. Bundy showed you the graphic on the screen : it shows projections from
segment 6. It is odd that the delimitation waves — if I may coin a phrase — are powerful enough
to flow over the Crimean peninsula, but not the more distant delta area. Apparently delimitation
waves get weaker as they propagate with distance.
39. Just by itself, this graphic demonstrates the irrelevance to the delimitation of the
northwards-facing coasts of the Karkinits’ka Gulf, against which the delimitation waves from
segment 6 beat furiously.
[End tab 9]
[Tab 10: projections from all Ukraine’s coasts]
40. And this is of course the point. Segment 6 is not unopposed; it competes with other and
much closer Ukrainian coasts, as you can see displayed on the screen now. The delimitation waves
meet and rebound; the result is . . . equidistance! It is most certainly not a focusing of the force of
segment 6 through the magnifying lens of Serpents’ Island, and that is Ukraine’s theory of the case.
The graphic is a striking one ⎯ and while you see it, it gives me an opportunity to pay tribute to
Romania’s technical team, playing in the cartographic World Cup against international opposition!
[End tab 10]
[Tab 11: comparison of the Parties’ relevant areas]
37
CR 2008/26, pp. 28-29, para. 42 (Bundy). - 32 -
Relevant areas
41. Madam President, Members if the Court, I m ove finally to the question of relevant areas,
usefully compared in Ukraine’s graphic, which is tab 11 of your folder.
42. What I have said above about segments 3 to 7 determines the irrelevance of the areas in
the north, in particular the waters around Odessa and within the Karkinits’ka Gulf. I will not repeat
38
what I said on these in the first round .
43. As to the so-called “inconsequential ar ea” in the south-west, Ukraine very kindly
attributes to Romania areas south of the provisional equidistance line between Romania and
Bulgaria. This has the effect, if Ukraine’s de limitation method is followed, of increasing the areas
notionally attributed to Romania at our expen se; so, it is a Greek gift, one might call it—
regionally appropriate. The relevant area, we sa y, is bounded either by actual delimitations with
third States or, in the absence of delimitation, by a provisional equidistance line.
44. But by far the most important disagreement relates to the south-eastern triangle, which
we include but Ukraine seeks to exclude. Ukraine argues that this area has been delimited with
Turkey, and is not claimed by Romania 39. But areas may be relevant to more than one
delimitation ⎯ as in Tunisia/Libya and Libya/Malta — part of the area overlapped. And whether
an area is claimed or not does not matter for the purpose of determining relevant areas; for
example, areas very close to the coast of one State will not be claimed by the other but they are
certainly part of the relevant area for delimitation purposes. Thus Ukraine rightly counts as
relevant for the delimitation the areas of Constanţa, despite the fact that it does not claim them.
[End tab 11]
[Tab 12: comparison of the Parties’ relevant areas]
45. That the south-eastern triangle is, but for its tip, relevant here can be seen quite clearly
from these two graphics. The first — tab 12 in your folders — is the 200-mile projection from the
Romanian coasts north and south of the Sacalin peninsula: these coasts look directly on to the area
in question, without any intervening or occluding coastal frontages.
[End tab 12]
38
CR 2008/18, pp. 65-66 paras. 15 and 16; p, 69 paras. 23-25 (Crawford).
39CR2008/24, p.25, para.25; p.36, para.73 (Bundy); CR2008/26, p.40, paras.87-88 (Bundy); CR2008/29,
p. 47, paras. 17-19 (Bundy). - 33 -
[Tab 13: comparison of the Parties’ relevant areas]
46. The second graphic— tab 13 in your folders— is the eastwards projection of the
southern coast of Romania above Vama Veche. This sector, as I have explained, lies entirely south
of the latitude of Cape Sarych and looks directly eastwards. Unlike the previous graphic it does not
entirely cover the area Ukraine clai ms to exclude, but it covers most of it. There is an obvious
asymmetry in Ukraine’s counting as relevant the equivalent triangle in the west but not in the east.
47. Madam President, Members of the Court, for these reasons the relevant coastal lengths
and the relevant areas in this case are as specified by Romania. My colleagues tomorrow will
explain what impact your conclusion on this point does ⎯ or does not ⎯ have on the delimitation.
[End tab 13]
Conclusions
48. Madam President, Members of the Court, the tale of maritime delimitation is a tale of
modest adjustments even given large differences in coastal lengths: you can see this, for example,
from the Jan Mayen case. You can see it also from the decision of the Tribunal in the
Barbados/Trinidad and Tobago case, where a substantial difference in coastal lengths produced
only a very modest adjustment in the eventual delimitation. That decision has been very well
received ⎯ except, perhaps, than by losing counsel! Gulf of Maine stands alone as a case where a
strict arithmetic proportion was used to achieve what was in the end a modest departure from
equidistance; it does not depart from this tale of modest departures. For the reasons I have given,
the Chamber’s decision is of no relevance here.
Madam President, this concludes this part of my presentation. I would ask you to call upon
Mr. Dinescu to continue.
The PRESIDENT: Thank you, Professor Crawford. The Court now calls Mr. Dinescu. - 34 -
Mr. DINESCU: Thank you very much, Madam President.
III. RRELEVANCE OF “S TATE ACTIVITIES ” IN THE DELIMITATION AREA
I. Introduction and general considerations
1. Madam President, Members of the Court, in its written pleadings Ukraine asserted that the
40
so-called “State activities in the relevant area” represent a relevant circumstance that supports the
delimitation line it put forward 41. These activities were treated unde r the sections dedicated to its
42 43
relevant circumstances both in the Counter-Memorial and the Rejoinder . And the final
summaries of both the Counter-Memorial and th e Rejoinder included these activities among the
relevant circumstances as well 44.
2. In an apparent shift from the original position, in the oral pleadings Ukraine changed tack.
To quote counsel for Ukraine, MsMalintoppi, th e oil and gas activities and Ukraine’s coastguard
operations “constitute an important element of the conduct of the Parties subsequent to the
1949 agreement that fundamentally undermines Romania’s argument that an all-purpose boundary
45
had been agreed at the time” . The idea appeared for several times throughout Ukraine’s
pleadings of last week, while the “old” idea that the States’ activities might be considered as a
46
relevant circumstance for the delimitation was touched upon only once .
3. The new assertion that Ukraine introduced into the case is as unsustainable as the previous
one.
4. In the following minutes I will answer this new Ukrainian allegation and I will also briefly
refer to other aspects which, following Ukraine’s pr esentation of last Friday, must be clarified.
Before doing so, it is necessary to make two remarks.
40CMU, Chap. 8, Sec. 2, pp. 212-219.
41
See CMU, p. 213, para. 8.41; also RU, p. 119, para. 6.74.
42
CMU, Chap. 8, Sec. 2, pp. 212-219.
43
RU, Chap. 6, Sec. 4, pp. 119-132.
44See CMU, p. 253, para. 11.1 (viii); also RU, p. 153, para. 9.3 (xii).
45CR 2008/28, p. 34, para. 43.
46
See CR 2008/28, p. 34, para. 45. - 35 -
5. The first concerns the consequences of the provisions of the 19 97 Additional Agreement
on the issue of the State activities. Last Friday counsel for Ukraine tried to minimize the relevance
of the Additional Agreement for our case, but no ne of the legal arguments presented by Romania
was contested. In turn, Ms Malintoppi made two in exact statements as to the facts, namely that “a
number” of the Ukrainian licences were aw arded before the Additional Agreement was
concluded 47and that anyway the co-ordinates of the area in dispute where petroleum activities of
the two Parties were covered by the special lega l régime of the Additiona l Agreement were never
48
established .
6. The “number” of the licences awarde d by Ukraine before 1997 is, in fact, one ⎯ the
Delphin block. Of course, in terms of percentage, this number is indeed important ⎯ since
Ukraine’s petroleum activity is limited to only three concessions!
7. As far as the definition of the area in di spute is concerned, MsMalintoppi was again
wrong: that area was indeed defined on the basis of the claim lines of the Parties at the very
beginning of the process of negotiations, and was reconfirmed several times during this process. In
fact, the claim lines of the Parties were well known even earlier ⎯ as proved by the exchange of
diplomatic correspondence of 1995, by which the two States communicated to each other their
maritime claims. I referred at length to this 1995 diplomatic exchange during the first round of
Romania’s pleadings and I will not repeat what I said then 49.
8. My second remark concerns the critical date. Rather surprisingly, Ukraine concluded that
“[e]ven assuming that there was a critical date at all, and that the critical date would have a role to
50
play in maritime delimitation, it is the date of Romania’s Application: 16 September 2004” .
9. MadamPresident, Members of the Court, whenever there is a dispute, there must be a
point in time when that dispute emerged ⎯ when it crystallized. So, whenever a dispute exists, a
critical date also exists. This applies to all ki nds of disputes, and mar itime delimitation is no
47See CR 2008/28, p. 32, para. 35.
48
Ibid.
49See CR 2008/21, pp. 22-23, paras. 8-10.
50See CR 2008/28, p. 25, para. 6. - 36 -
exception. My colleague Daniel Müller explained in the first round that, as concerns the relevance
of the critical date, maritime delimitation is no different from its land counterpart 51.
10. That the critical date has a role to play in maritime disputes is confirmed by the
Nicaragua v. Honduras case. In the Judgment of October last year you said that “[i]n the context
of a maritime delimitation dispute or of a dispute related to sovereignty over land, the significance
of a critical date lies . . .” (Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para. 117) and I will
not go further, since this paragraph from the 2007 Judgment was already quoted and analysed in
our presentations two weeks ago 52.
11. Of course, to determine the critical date may not always be simple. An example is
represented by the divergent views advanced by the parties in Nicaragua v. Honduras. But our
case is not like that. In our case it would be quite amazing to hold that the dispute emerged in
2004, when Romania seised the Court. Nor can it be sustained that the dispute crystallized in 1997,
when the Additional Agreement was signed; this is obvious from the language of the Additional
Agreement itself. Incidentally I would like to correct another erroneous Ukrainian statement ⎯ in
our Reply we did not fix the critical date in 1997; in fact we said that the time of the Additional
53
Agreement was “at the latest” the critical date . The 1995 exchange of diplomatic correspondence
did not reveal the dispute for the first time either, this exchange merely confirmed its existence and
scope. In fact the reality was very eloquently presented by the Agent of Ukraine in his opening
remarks last Tuesday, when he referred to th e past negotiations on the delimitation: “Both
54
Ukraine, as successor State to the USSR, and Romania inherited a complicated problem.”
12. In conclusion, the dispute predates Ukraine’s independence. Still, for the purposes of our
case, in view of the late activities invoked by Ukraine ⎯ and I refer here both to the “State
activities” in the disputed area and the activities on Serpents’ Island ⎯ it suffices to say that the
critical date of the dispute is situated in any case at the latest in 1995.
51See CR 2008/21, pp. 17-18, para. 17.
52
See CR 2008/21, pp. 117-118 (Müller); p. 22, para. 17 (Dinescu).
53RR, p. 165, para. 5.106.
54CR 2008/24, p. 13, para. 14. - 37 -
II. Ukraine’s allegation that the State activities in the disputed area prove the inexistence of a
previous agreement in the area of Serpents’ Island
13. MadamPresident, Members of the Court, I turn now to the new interpretation given by
Ukraine to the “State activities” in the disputed area ⎯ i.e., that they constitute an element which
“fundamentally undermines Romania’s argument that an all-purpose boundary had been agreed” 55
in 1949. Unlike the previous contention (accord ing to which the State activities are a relevant
circumstance), where the focus w as on the Ukrainian activities, in th is new play the main actor is
represented by the Romanian activities ⎯ or rather, as Ukraine wants you and us to believe, their
non-existence.
14. This is based on a false assumption, just like other arguments through which our
opponents contest the validity and the meaning of the 1949 procès-verbaux.
15. This false assumption is that the concessions awarded by Romania after 1990 represent
the only State activities undertaken by Romania in the disputed area.
[Slide 1: Romania’s activities in the delimitation area]
16. The slide which is now on the screen and that you may find at tab III-1 in your folders is
an accurate illustration of Romania’s activities in the delimitation area. Last week Ukraine
criticized that map saying that it was not dated, that its source was not provided and that it was “not
a paragon of clarity” 56. In fact this map was produced by Romania in its pleadings with the
purpose of presenting the location of all activities in the delimitation area, along a period of more
than 40 years, on the basis of information provided by the Romanian competent institutions. As for
the clarity ⎯ the map includes a legend in which the meaning of the lines and dots is very clearly
explained: they represent seismic profiles carried out by Romania at different points in time and
exploration wells drilled by Romania.
17. On the other hand, if in its written plead ings Ukraine accused us of making “contentions
[which] are difficult to reconcile with the publicly available data compiled by Petroconsultants, an
57
authoritative and independent petroleum consultancy” , now Ukraine is equally dissatisfied with
data provided by Romania from specialized publications, which are as authoritative and
55
CR 2008/28, p. 34, para. 43.
56
CR 2008/28, p. 28, para. 19.
57RU, p. 125, para. 6.93. - 38 -
independent as Petroconsultants: last Thursday Ms Malintoppi found it “worth mentioning that . . .
Romania relie[d] on secondary sources for information” by invoking studies published in the
58
Marine Geology magazine . In fact these independent studies bear witness to Romania’s activities
in the disputed area.
[End of slide 1]
[Slide 2: location of Romanian industrial seismic profiles (thick lines) taken in 1970-1971 and
1981-1988, of high-resolution seismic profiles of the research cruises in 1992, 1993 and 1994 (thin
lines) and of the two drill holes 1 Ovidiu and 13 Heraclea (extract from Upper Quaternary water
level history and sedimentation in the northwestern Black Sea, Marine Geology 167(2000),
12p7.-146, also available on http://www.geo.edu.ro/sgr/mod/downloads/PDF/
Winguth-MarGeo-2000-167-127.pdf, p. 129)]
18. Thus, the authors of one study published in 2000 based their documentation, according to
the study itself, on the “analysis and interpre tation of ca 3,300 km of industrial multichannel
reflection seismic profiles obtained in 1970– 71, 1981–88 and 1994, made available by the
59
Romanian exploration companies PETROMAR and PROSPECTIUNI” . The slide which is now
on the screen (and which is also at tab III-2 in your folders) illustrates the area covered by these
Romanian exploration activities.
[End of slide 2]
[Slide 3: area explored by the Romanian comp anies Petrom and GeoEcoMar and by the joint
Romanian-French BlaSON expedition (extract from “The Danube submarine canyon (Black Sea):
morphology and sedimentary processes”, Marine Geology 206 (2004) 249-265, p. 251)]
19. Another study 60, published in the same specialized publication in 2004, shows another
area explored by Romania, alone and in co-operation with a French company, at different points in
time. The Romanian profiles made available by the Romanian companies result from the early
61
Romanian exploration activities, while the jo int Romanian-French exploration dates from 1998 .
The area covered by these exploration activities is now on the screen and at tab III-3 in your
folders.
58
CR 2008/28, p. 28, para. 18.
5“Upper Quaternary water level history and se dimentation in the northwestern Black SeaMarine Geology
16(72000), pp1.27-146, also available on http://www.geo.edu.ro/sgr/mod/downloads/PDF/Winguth-MarGeo-
2000-167-127.pdf, p. 128.
6“The Danube submarine canyon (Black Sea) : morphology and sedimentary processes”, Marine Geology 206
(2004), pp. 249-265.
6See “Messinian event in the Black Sea: Ev idence of a Messinian erosional surface”Marine Geology 244
(2007), p. 150 - 39 -
[End of slide 3]
[Slide4: area covered by the Romanian exploration activities as presented by the studies “Upper
Quaternary water level history and sedimentation in the northwestern Black Sea”, Marine Geology
167 (2000), pp. 127-146 and “The Danube submarine canyon (Black Sea): morphology and
sedimentary processes”, Marine Geology 206 (2004), pp. 249-265 and the disputed area]
20. Madam President and Members of the Cour t, you can see now on the screen the areas of
the Romanian exploration activities presented in these two studies overlapped on which we also
overlapped the area now in dispute. It is clear that the area covered by Romania’s activities
coincides practically with all the maritime area claimed by Romania, including those maritime
spaces immediately south of the maritime boundary established on the 12-nautical-mile arc around
Serpents’ Island. This shows that Ukraine’s asse rtion regarding the inconsistency of Romania’s
activities in the area with the established mariti me boundary on the 12-nautical-mile arc around
Serpents’ Island is erroneous.
[End of slide 4]
[Replay of slide 1]
21. As for the location of the Romanian concessions awarded afte r 1990, on which much
reliance is put by Ukraine, we explained that this was the expression of Romania’s cautious
approach in granting concessions in the context of the ongoing maritime delimitation
62
negotiations .
22. In response, Ms Malintoppi rhetorically asks “if an area is already delimited, as Romania
63
contends, what is the need fo r this ‘precautionary conduct’?” and quotes Romania’s 1995 Note
Verbale, according to which no agreement on delimitation between Romania and Ukraine was
64
concluded .
23. Madam President, two weeks ago, I briefl y touched on the history of negotiations on the
delimitation between Romania and the former USSR, then Ukraine after its independence, and I
explained the reasons for which Romania exerci sed caution in granting concessions for petroleum
or gas activities. As it results from the records of the Romanian-Soviet negotiations, included by
62
See CR 2008/21, pp. 29-30, paras. 32-35.
63
CR 2008/28, p. 33, para. 38.
64See CR 2008/28, p. 34, para. 44. - 40 -
65
Romania in its annexes to the Memorial , from the end of the 1970s, the Soviet Union started to
contest the validity and the meani ng of the 1949 procès-verbaux, which made the Romanian chief
negotiator in 1987 to clearly reaffirm Romania’s position that,
“in 1949, our governments established a sui generis delimitation line, which
confirmed the pass-over of Serpents’ Island to the USSR and allocated to it, in part
explicitly and in part implicitly, a semicir cular maritime space, with a radius of
12miles, whose exterior limit on the segmen t separating Romanian waters of Soviet
66
waters received the characteristics of a State boundary” .
24. This contestation of the 1949 Agreements lead to the inclusion of the areas south of the
maritime boundary on the 12-nautical-mile arc arou nd Serpents’ Island within the area in dispute
between Romania and the USSR and, consequently, within the area where Romania refrained, after
1990, from awarding concessions –– although Romania continued its exploration activities in that
area, as I have just shown. But the fact that from a certain moment one party–– the USSR ⎯
contested the validity of the 1949Agreements does not mean that the agreements do not exist or
that they do not mean what they say. Professor Crawford will deal with this point shortly.
[End of slide 1]
Madam President, I still have two pages to go; may I continue?
The PRESIDENT: Please continue.
Mr. DINESCU: Thank you very much.
III. Ukraine’s petroleum and coastguard activities in the disputed area
25. I will turn now to Ukraine’s invoked activ ities. This will not take long, since Ukraine
brought no new element into the picture.
[Slide 5: the disputed area and the Ukrainian concessions]
26. Regarding Ukraine’s gas and oil activities ⎯ an illustration of which you can see now on
the screen ⎯ Ukraine adduced no further da ta than what it produced in its written pleadings. Our
opponents continue to argue that “these activities are consistent with Ukraine’s delimitation line” 67,
65
See MR, Anns. MR 28-MR 31.
66
MR, Ann. MR 31.
6CR 2008/28, p. 34, para. 45. - 41 -
but a simple glance at the map, at their locati on, is enough to prove the contrary. Counsel for
Ukraine also affirmed that the Ukrainian hydro carbon activity was protested by Romania in “just
two instances” 68. But in Romania’s Rejoinder, evidence is produced regarding the diplomatic
69
correspondence of Romania addressed to Ukraine between 2001 and 2006 . To this we must add
the 1995 Romanian Note Verbale 70, as well as the earlier Romanian document referred to in this
Note ⎯ the aide-memoire addressed by Romania to Ukraine in 1993, after Romania became aware
of Ukraine’s plan to grant the Delphin concession.
27. Ms Malintoppi did not contest our conclusions regarding the relevance of the Additional
Agreement on the Parties’ oil and gas activities either, but for those two small issues that I touched
upon at the beginning of my intervention; thus our conclusions remain valid.
[End of slide 5]
28. Turning to the naval patrols ⎯ or, as called now by Ukraine, the “coastguard
activities” ⎯ these were all conducted after the critical date and all but one after the entry into
force of the 1997 Additional Agreement. So our conclusions remain unrebutted.
29. Ukraine resurrects from the written pleadings its argument regarding the existence of a
so-called “provisional line” 71of delimitation between Romania and Ukraine, corresponding to its
claim and communicated to Romania and third States. But Ukraine readily admits that this
“provisional line” was never accepted by Romania 72.
30. And the fact that this line was communi cated to other States has no relevance for our
73
case. No State has ever recognized the Ukrainian “provisional line” .
31. Counsel for Ukraine also referred to a 2006 incident involving an airplane of the
Ukrainian border police and Romanian fishing vessels. As Ukraine admits, Romania reacted to this
incident through a Note Verbale, which may be found as Annex 37 of our Reply. This incident ⎯
68CR 2008/28, p. 32, para. 36.
69
See RR, pp. 252-255, paras. 7.21-7.30.
70
CMU, Vol. 3, Ann. 25.
71See CR 2008/28, pp. 29-30, paras. 22, 24.
72See CR 2008/28, pp. 29, paras. 23.
73See RR, pp. 260-263, paras. 7.43-7.48. - 42 -
which by the way took place long after the critical date ⎯ has no relevance on the present
proceedings.
IV. Conclusion
32. MadamPresident, Members of the Court, from all the elements regarding the “State
activities” in the disputed area, only one clear-cut conclusion can be drawn: Ukraine failed to
demonstrate that these State activities comply, in f act or in law, with the necessary criteria that
might transform them into a relevant circumstance able to have an impact on our delimitation.
Ukraine also completely failed to build its new case, that these activities might constitute an
element undermining Romania’s argument regarding the 1949 procès-verbaux.
To paraphrase the distinguished counsel for Uk raine, all Ukrainian allegations on the State
74
activities in the relevant area are nothing but “a figment of Ukraine’s imagination”
Madam President, Members of the Court, thank you for your patient attention.
MadamPresident, I think it may be an appropriate time for the break. With your permission,
Romania’s presentation will be continued thereafter by Professor Crawford.
The PRESIDENT: Thank you, Mr. Dinescu. The Court now rises.
The Court adjourned from 11.30 a.m. to 11.45 a.m.
The PRESIDENT: Please be seated. Yes, Professor Crawford.
CMRA. WFORD:
IV. T HE DELIMITED BOUNDARY AROUND S ERPENTS ’ ISLAND
1. MadamPresident, Members of the Court, I turn to deal with the delimited boundary
around Serpents’ Island, responding to the la rge number of arguments made on this by
Sir Michael Wood in his distinguished debut.
[Slide: Ukrainian map from 2001 (RM A 23)]
74
See CR 2008/28, p. 35, para. 47. - 43 -
No new argument
2. One of Sir Michael’s points was that this was a new argument, invented by counsel for the
75
purpose of the case . One sensed he was particularly satisfi ed to be able to cry “new argument,
new argument” ⎯ like the ancient Spaniard proclaiming “Let no new thing arise!” Unfortunately
for Sir Michael ⎯ I am tempted to call him Don Miguel ⎯ the argument is not new. It is often the
task of counsel to clarify and develop positions taken by diplomats and governments who are,
sometimes, no doubt, to the despair of their legal advisers, not always models of consistency. But
there are nonetheless transactions to which the Court will give effect unless the relevant rights have
been waived or abandoned. And the fact is that the 1949 Agreement argument was developed on
the basis of the available materials. The Court will be relieved to hear that we did not forge the
maps! I never met the Ukrainian State cart ographer who produced the 2001 map on your screens
(it is tab IV-1 in your folders) 76, nor the German cartographer who independently showed the same
77
agreed border in 1991 . What they showed was clear and it was not new. My colleague,
Mr. Olleson, will, with your permission, Madam President, follow me and deal with Sir Michael’s
speculations relating to the maps ⎯ as to which even Sir Michael had some new ideas.
[End slide]
3. But it is not only the maps which show that this is not a new argument. SirMichael
referred to the record of negotiations with th e Soviet Union in October 1987: my colleague,
Mr. Dinescu, has read the relevant passage and I will not repeat it. It makes it quite clear that all
the essentials of the Romanian argument had been elaborated by that time. What is dreamt up in all
of this is Ukraine’s argument relating to Romani a’s “prospective” territorial sea, which made its
first appearance in the Counter-Memorial.
4. I would also draw your attention to the map forming part of Romania’s 1997 notification
to the United Nations Secretariat of base points from which its territorial sea is drawn. Ukraine
78
seems to have had some difficulty, in its pleadings , in reproducing this map in the appropriate
colours, though its pleadings are otherwise full of colour. An accurate reproduction of the map as
75
CR 2008/26, p. 46, para. 9 (x) (Wood).
76
CMU, Ann. RM A 23.
7CMU, Ann. RM A 41.
7CMU, Figs. 5-13 and 5-14. - 44 -
79
submitted to the Secretariat is now on the screen . You can see the line indicating the outer limit
of the territorial sea, the first of the lines parallel to the coast, the territorialsea is shaded in pink.
Sorry, it is not on my screen, that is because it is not on yours. I apologize. This document is the
Romanian Reply, figure 23, and I am sorry there has been a glitch in our arrangements. Weekends
of work do not always work out. But, I refer you to Romania’s Reply, figure 23, and you will see
that there is a line indicating the outer limit of th e territorial sea shaded in pink. Further on, the
contiguous zone is shaded in green. At the top of that chart, in the region of Serpents’ Island, you
can see clearly that the northernmost point of the oute r limit of the territorial sea, is located on an
arc around Serpents’ Island. That chart was submitt ed in 1997; no objection was ever made to it
by Ukraine. It is another example to show that this was not a new argument.
Romania’s alleged renunciations
5. Then it is said that Romania renounced its rights under the 1949 Agreement ⎯ or, at least,
recognized it had none. In this context I should re fer to the Note Verbale of 28 July 1995, referred
80 81
to both by SirMichael , and by MsMalintoppi . They suggested that Romania had explicitly
recognized that there existed no agreed delimitation. The phrase quoted by Ukraine reads “there is
no agreement between Romania and Ukraine on the delimitation of maritime spaces in the Black
Sea”. We have provided an altern ative translation of the Note Verbale which is tabIV-4 of your
folders, I hope. Properly translated, the passage should read: “Since no agreement was concluded
between Romania and Ukraine on the delimitation of the maritime areas in the Black Sea, the
Romanian party...” And it goes on. That phrase clearly refers to the absence of an agreement
concluded between the parties in relation to the delimitation of the continental shelf and exclusive
zone as a whole. It does not mean that Ro mania accepted that the 1949Agreements, concluded
with the Soviet Union, not with Ukraine, had not delimited a part of the boundary.
79
RR. Fig. 23.
80
CR 2008/24, p. 58, para. 51 (Wood); CR 2008/26, p. 43, para. 4 (Wood).
81CR 2008/28, p. 34, para. 44 (Malintoppi). - 45 -
6. Then Ukraine repeatedly invokes the 1997 Agreement, and the fact that it made no
reference to the fact of an agr eed boundary around Serpents’ Island 82. I notice in other respects it
ignores the 1997Agreement. I will deal with this point when we come to the question of
jurisdiction, at the end of this presentation.
7. It is true, as Mr. Dinescu explained, that negotiations were held with the Soviet Union and
with Ukraine in which other solutions were envisaged than a semi-enclave around Serpents’ Island.
But in negotiations, offers of settlement may be made which depart from the legal position of the
offering State. This is done on a without prejudice basis, and nothing is to be implied from such
conduct as to the strength of the underlying legal position.
Burden of proof
8. I turn to the burden of proof. On eight occasions last week, SirMichael stressed that
Romania had “the burden” or even, “the heavy bur den” of showing that there existed an agreed
83
boundary . In his words: “Romania, the Party asserting the existence of an agreement, has the
burden of establishing it.” 84
9. In this context, Sir Michael repeatedly referred to your decision in Nicaragua v. Honduras
where you said that: “The establishment of a pe rmanent maritime boundary is a matter of grave
importance and agreement is not easily to be presumed.” ( Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of
8 October 2007, para. 253.) 85 Of course, that was a case in which you were asked to conclude that
there existed a tacit agreement between the parties as to the delimitation. There have been similar
cases where an agreement was sought to be inferred from practice ⎯ the oil practice line in
Cameroon v. Nigeria, for example (Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 447,
paras. 302-304).
82
CR2008/24, p.12, para.9 (Vassylenko) ; p.28, para.36 (Bundy); pp.47, para.50 and49, para.60;
CR 2008/26, p. 44, para. 9 (i) (Wood); CR 2008/28, p. 24, para. 50 (Wood).
83
CR2008/24, p.37, para.2 (Wood); CR2008/26, p.43, paras.5 and 6; p.44, paras.7 and 9 (Wood);
CR 2008/28, pp. 10, para. 1; 16, para. 28; 24, para. 52 (Wood).
84CR 2008/26, p. 43 (para. 5) (Wood) .
85See CR 2008/24, p. 37, para. 3 (Wood); CR 2008/26, p. 43, paras. 5 and 6; and p. 51, paras. 27-28 (Wood). - 46 -
10. But the present case is different. Listening to Sir Michael, with his constant references to
“burdens” and “cases to answer”, one might think th at the issue was one of proof of the existence
of an agreement ⎯ that Romania had conjured up a non-existent agreement relating to the
maritime boundary around Serpent’s Island of which there was no trace in the record.
11. But clearly there was an agreement; indeed there are a number of agreements ⎯ you are
already familiar with them. Given that these exist and are binding on the parties, the question is no
longer one of evidence. It is not a question of proof, or of burdens, or of inferring the existence of
an agreement. It is a question of interpretation of the agreements which are binding on the parties.
What did the 1949 procès-verbaux and subsequent agreements, properly interpreted, establish?
12. As a question of interpretation, there is no presumption one way or another as to what the
parties agreed: that would amount to a special prin ciple of restrictive interpretation of delimitation
agreements, for which there is neither authority nor justification. The question is simply “What was
agreed?”
The “State border”
13. In this regard the first question to be answered is “Was there a boundary agreed beyond
the 6mile territorial sea of Romania as it existed at the time of conclusion of the
1949procès-verbaux?” The answer to that question is indisputably “Yes” ⎯ the boundary was
agreed to extend beyond the territorial sea, as I sh owed you in the first round. On the sketches
annexed to the 1949 individual procès-verbaux, th e boundary is depicted using the same symbol
along its entire length, and there are clearly visible, at locations lying well outside the territorial sea
of Romania, indicators of appurtenance on either side of the line to Romania as well as the Soviet
Union. This is true, inter alia, of map134. Undoubtedly, there was an agreed boundary beyond
areas then under the sovereignty of Romania. The suggestion that the 1949 and subsequent
agreements delimited solely a “State border”, separating areas under the sovereignty of both States
is demonstrably incorrect.
14. SirMichael attempted to avoid this obvious point by suggesting on a number of
occasions that the Parties must have had in mi nd Romania’s “prospective” territorial sea, or the
future extension of the territorial sea to 12 miles. He even went so far as to say that the endpoint of - 47 -
the supposed agreed boundary shown on map 134 wa s not identified by co-ordinates “presumably
because Romania had not yet extended its territorial sea to 12miles” 86. “Presumably”!
Apparently, “presumably” works for Ukraine.
15. Having guessed at the motivations of the Pa rties, SirMichael proceeded to suggest that
the point marking the extent of the arc around Serpent’s Island, on map134, was the same (or
nearly the same 87) as the location of pointF, the point ag reed in 2003; this was the point he
suggested which Romania and the USSR must have had in mind. But as I have explained during
88
Romania’s first round, this cannot be right . I will simply make four points:
⎯ first, there is no indication whatever in the 1949procès-verbaux or elsewhere that the parties
had in mind a “prospective” Romanian territorial sea;
⎯ secondly, if they were concerned with delimit ation only to 12miles from the mainland, one
would have expected there to be some indication of this in the text of the 1949 procès-verbaux.
There is not;
⎯ thirdly, the attributions of maritime areas on both the maps and the sketches are inconsistent
with this suggestion. They are bisected by th e outer limit of a 12-mile “prospective” territorial
sea based on the coastal geography, as it existed in 1949;
⎯ fourthly, the suggestion that the final point of map134 was intended to reflect Romania’s
“prospective” territorial sea does not fit with th at coastal geography. I have already explained
89
the process of extension of the Sulina dyke in the years since 1949 . Romania’s “prospective”
12-mile territorial sea, even if that had been in the minds of Romania and the USSR at the time,
would have intersected the 12-mile arc more than a mile to the north-west of the innominate
point on map 134. But 12 miles from the end of the Sulina dyke was no mystery at the time:
the parties knew the coastal geography, and they had the technical expertise to make the
measurements. If they had intended to draw that point one may expect that they would have
got it right.
86
CR 2008/24, p.38, para. 9; and p. 41, para. 24 (Wood) ; CR 2008/26, p. 44, para. 9(ii) (Wood); CR 2008/28,
p. 13, para. 84 (Wood); see also CR 2008/26, p. 48, para. 17 (Wood).
87
CR 2008/24, p. 38, para. 9 (Wood).
88CR 2008/19, pp. 48-49, paras. 97-109 (Crawford).
89CR 2008/19, p. 49, para. 106 (Crawford). - 48 -
16. Thus on Ukraine’s own case, Romania and the USSR agreed a substantial portion of
boundary beyond even the “prospective” 12-mile territo rial sea. SirMichael’s suggestion that in
the 2003Treaty, Ukraine and Romania did nothing more than “reconfirm[] the territorial sea...
that had been agreed in 1949 and already confirmed in 1961” 90, is untenable. It is just not true that
the boundary as far as pointF was agreed in 1949 as a territorial sea boundary. In 1949, pointF
could not have been contemplated.
17. This undermines Sir Michael’s carefully cons tructed argument that a distinction is to be
drawn between those instruments relating to the State border and those relating to the delimitation
of the exclusive economic zone and the continental shelf.
18. I note in passing that Ukraine’s original ar gument, which was that the Parties beyond the
6-mile territorial sea delimited the outer limit of the Soviet 12-mile zone, on the other side of which
was high seas 91, has disappeared without trace.
The effect of the 1949 Agreements
19. What then, as a matter of interpretation, w as the effect of the 1949Agreement? I have
shown that the USSR and Romania agreed at the very least a sector of border beyond the territorial
sea as it was at that time. That much is clear from the text of the Agreements.
20. SirMichael attempts to muddy the waters by referring to differences in the translations
92
provided . But issues as to the precise translation of the term “marine border zone” or “maritime
border strip” (or “maritime borderland”) have no impact upon the question of the extent of the
border; whatever translation is preferred, it is clear that a 12-mile zone was established, and that
from a Soviet point of view it constituted a Stat e border with Romania on the other side. The
central questions remaining are whether this was an all-purpose boundary and how far it extended.
Let me take the latter question first; I will refer to the former question shortly.
21. Ukraine accepts that the agreed border goes some way past border sign1439.
SirMichael, although maintaining Ukraine’s argumen t that the first of the two sentences in the
1949 general procès-verbal relates entirely to th e location of border sign 1439, expressly accepted
90
CR 2008/24, p. 38, para. 11 (Wood).
91
CMU, para. 5.66; RU, paras. 3.76-3.84.
9CR 2008/26, p. 52, para. 33; pp. 53-54, para. 40 (Wood). - 49 -
that the second sentence “does appear to address the continuation of the State border around the
territorial sea outer limit, in that it says that it goes on or along the limit” 93. And that is correct.
The language of the procès-verbal is clear ⎯ the boundary runs along the exterior margin of the
12-mile zone.
22. The next question is how far did that agr eed boundary go. In our view it went all the
way around the island. That is what a 12-mile zone around a tiny island must inevitably do.
Romania agreed that there was such a zone. That meant it was delimited; there is no mystery in
the word “delimited”.
23. Despite SirMichael’s protestations 94, and apart from forensic arguments based on the
burden of proof, Ukraine’s argument is wholly based on its hypothesis as to the extent of the
boundary shown on map 134, and its speculation that the intention was only to delimit a boundary
arising from a “prospective” Romanian territorial sea from the mainland coast. I have already dealt
with that speculation.
24. I briefly address some subsidiary arguments made by Ukraine on map 134:
⎯ First, reference is made to what is said to be the object and purpose of the procès-verbal and
map 134 95; this was solely “demarcation”. But th e USSR and Romania clearly also agreed a
delimited boundary beyond the last demarcated border sign ⎯ that is evident on the face of the
document. Therefore the procès-verbal was not only concerned with demarcation.
⎯ Secondly, Sir Michael complained that I had misrepresented the title of map 134 by suggesting
that the headings should be understood as meaning that the purpose of the map was to depict
96
the boundary between those border signs and nothing else . I do not think that that was a
misrepresentation ⎯ the title is clear. In any case, Sir Michael accepted that the “primary
purpose of the map was to depict the location of the two border posts”. He added somewhat
half-heartedly that “it also showed the State border”; he did not suggest that the object and
purpose of map 134 was to depict the State border beyond border sign 1439. The fact remains
93CR 2008/26, p. 53, para. 39 (Wood).
94
CR 2008/28, p. 16, para. 28 (Wood).
95CR 2008/26, p. 53, para. 39 (Wood).
96CR 2008/28, pp. 14-15, para. 20 (Wood). - 50 -
that the express purpose of map 134 was limited to depicting the relevant border signs, and the
boundary between them. There is no indication, anywhere, that map 134 was dispositive of the
extent of the boundary around the 12-mile arc.
⎯ Thirdly, SirMichael was faced with the f act that the boundary shown on map134 does not
extend all the way back to border sign 1437, in the west. His explanation was that the section
97
of the border was shown on a different map . But in construing map 134, what it shows at the
other end of the depicted line ⎯ another gap ⎯ explains what happened in the east.
25. As for the argument that Romania and Ukraine by entering into the 2003 Border Treaty,
thereby agreed that there was no delimitation beyond that point 98, the 2003 Treaty says nothing of
the sort. The dispute between the Parties, beyond 12 miles, was by 2003 of long standing. In 2003
the Parties sensibly agreed what they could, without prejudice to their respective legal positions
beyond point F, at least agree on a territorial sea ⎯ that was not an exclusive agreement.
26. Incidentally, I would observe that it is not quite true to say that the Parties in 2003 fixed
pointF indefinitely. On Friday ProfessorQuén eudec helpfully slipped in a reference to the
paragraph in Article1 of the 2003Treaty which stipulates that the territorial seas of the Parties
“shall be permanently 12miles wide at the point of their junction”. It goes on to provide that
pointF may be recalculated by the Mixed Border Commission if the base points change “due to
natural phenomena” 99. Evidently the Parties envisaged that in certain circumstances point F would
be relocated seawards along the 12-mile arc. Now that is inconsistent with pointF being a fixed
point of departure for a Ukrainian EEZ boundary to the south.
Plates I and V
27. I turn to plates I and V. You will recall these plates, they support the conclusion that the
Parties did not intend map134 to limit the ex tent of the boundary beyond border sign1439.
SirMichael suggested that these plates are “not among the maps referred to as ‘documents...
attached to the Protocol’ in the general procès-verbal”, and he was not clear what was meant by the
9CR 2008/28, p. 17, para. 29 (Wood).
98
CR 2008/24, pp. 27-28, paras. 27-37 (Bundy); pp. 49-50, para. 60 (Wood).
9CMU, Ann. 3, cited CR 2008/29, p. 34, para. 46 (Quéneudec). - 51 -
100
fact that they were “included in the catalogue” . He suggested that they were “of dubious
status” 101.
28. Now we have put in your folders, at tabIV-5, a reproduction of the initial pages of the
catalogue, which was submitted by Romania: a transl ation of the title page and table of contents
follows. As you will see from the title page, th e pages are taken from an album of maps ⎯ this is
the “catalogue” which was annexed to the 1949gene ral procès-verbal. The next page is the
contents page ⎯ you will see from the translation that the fi rst entry is for plate I, the scheme of
the trace of the State boundary line between the two States. The second entry corresponds to
plates II to V, indicating four maps showing which of the maps cover the border signs; plate V was
the last of these plates and it covered the border to the east in the vicinity of the coasts of the
Parties. There then follows an entry for 134 maps, depicting the location of border signs, of which
map 134 is the last one. If you continue, you w ill see plates I to V, as contained in the catalogue,
and then the commencement of the series of maps. The status of plates I to V is in no way dubious;
they were included in the catalogue of maps whic h was annexed to the procès-verbal. We are not
suggesting that they are delimitation maps, we are suggesting that they are relevant to the question
what the Parties intended by map 134.
The terminology used in the 1949 procès-verbaux
29. SirMichaeldrew a link between the terminology used in the Russian text of the
1949 procès-verbal for the term translated by Romania as “maritime border zone” and the fact that,
according to Professor Butler, this is one of the terms used by Soviet legislators “for waters
102
washing Soviet shores” .
30. What Sir Michael did not discuss was the point I made in the first round, referring to an
article by ProfessorButler. A similar point is made at the outset of the extract to which
SirMichaelreferred you, and the whole chapter in Butler’s work repays careful reading as to the
varying doctrinal currents both in pre-Revolutionary Russia and, subsequently, in the Soviet Union.
In 1949, there was no general Soviet claim to a territorial sea as that concept is contained in the
100
CR 2008/28, p. 17-18, para. 31 (Wood).
101
CR 2008/28, p. 18, para. 32 (Wood).
10CR 2008/26, pp. 54-55, para. 44 (Wood). - 52 -
1958 Geneva Convention. That only happened in 1960 ⎯ yet in later agreements, up to 1974, the
more general innominate term continued to be used for the Serpents’ Island zone.
The 1949 Agreement in relation to the applicable international law
31. I turn to consider a further argument of Sir Michael’s, the 1949 Agreement in relation to
the applicable international law. Citing LordAsquith in the Abu Dhabi arbitration, SirMichael
said that the parties in 1949 could have made no commitment as to claims beyond 12 miles 103. As
to this, the following points may be made –– there are six of them:
104
(1) The Truman Proclamation was issued on 29 September 1945 . It had been well prepared and
was well received. The Soviet Union was consulted in advance and said it had no difficulty in
principle with the proclamation.
(2)In fact, in 1916, the Czar had declared th at Russia’s sovereignt y extended to uninhabited
islands in the Arctic Sea, a claim made expr essly on the basis that the islands formed “the
continuation of the continental shelf”; that claim was reaffirmed by the Soviet Government
in 1924 105.
(3) The first bilateral treaty dealing with submarine resources was the Gulf of Paria Treaty of
106
1942 . It apportioned exclusive control over th e “submarine areas” of the Gulf, defined as
“the sea bed and sub-soil outside the territorial waters of the High Contracting Parties”. And it
led to the subsequent annexation of those sea-bed areas by Her Majesty’s Government.
(4) The Persian Gulf States made various proclamations of continental shelf areas in 1949 107.
(5)In 1950, in the International Law Commission, ProfessorBrierly ⎯ not a law-making
radical ⎯ concluded “the continental shelf belonged ipso jure to the littoral State”, a view
shared by some other members of the Commission, strongly opposed by none and reflected in
108
the Commission’s report for that year: 1950 .
103
CR 2008/26, p. 56, para. 49 (Wood).
104
Proclamation with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, (1946)
40 AJIL Supp 45.
105
V. L. Lakhtine, Rights over the Arctic (1928) 43-5, cited in Young, (1948) 849-50.
106205 LNTS 121.
107For details see R. Young, “Further Claims to the areas beneath the High Seas”, (1949) 43 AJIL 790.
108
See Yearbook of the International Law Commission (YILC) 1951/1, 227-9, paras. 8 (a) (Brierly), 37 (Hudson),
40 (Amado). See also YILC 1950/II, 384-5. - 53 -
(6)In 1951, the Commission adopted draft Articles 1-3 on the continental shelf; these were
109
eventually embodied in the 1958 Convention without material change .
32. Whether or not the continental shel f doctrine had assumed in 1949–– and I quote
Lord Asquith –– “the hard lineaments or the definiti ve status of an established rule of international
law” 110 is not the point. The Court is used to finding international law without always hard
lineaments. Incidentally, that question was al so completely irrelevant to the issue that
Lord Asquith had to decide, which related to the interpretation of a grant of 1939. His much cited
comments are obiter dicta. The point is different; it is wh ether informed governments could have
understood a 1949 agreement about a marine boundary zone around a tiny island as a delimitation
not limited to the territorial sea. The answer is th at they certainly could have done. It is worth
noting that the Ruler of Abu Dhabi’s grant of 1949 to a rival oil company was, in effect, upheld in
the Abu Dhabi award–– that was, as is commonly the case, a dispute between competing oil
companies.
33. So we come back to the question of interpretation. The Soviet Union in 1949 agreed a
12-mile marine boundary zone around Serpents’ Island without any reservation of further claims to
the south. We freely accept that the Soviet Un ion regarded itself as having sovereignty over that
marine boundary zone. But the point is that mari time areas were, on the other side of that line,
attributed to Romania in treaty maps, which went beyond the then existing, or even prospective,
territorial sea of Romania. Subsequent official maps show the State boundary line as delimiting a
Soviet from a Romanian domain, even to the south-east of the island. The position was reaffirmed
in subsequent treaties, again without reservati on of further claims to the south. In the
circumstances, Romania could understand, and did understand, that an all-purpose delimitation had
been agreed.
Point X
34. Madam President, Members of the Court, I tu rn to point X. This is the point where the
maritime boundary to be delimited between the Parties departs from the 12-mile marine boundary
109
YILC 1951/II, 141-2.
11Abu Dhabi Arbitration (1951) 18 ILR 144, 155. - 54 -
zone around Serpents’ Island. As I said earlier this morning–– I finish as I start–– you have to
face two questions in this case, and they are different questions. Ukraine’s whole strategy in this
case is aimed at avoiding analysis, for which they substitute the mantra: “long coasts, long coasts”.
But coherent maritime boundary delimitation requires analysis, not lumping different things
together. Of destructive analysis last week we had quite a lot; of constructive analysis virtually
nothing.
35. I repeat, you face two questions. First, what effect would you give to this coastal
configuration independently of Serp ents’ Island? Ukraine is silent on this. Second, what effect
would you give to the island as such. Ukraine says nothing on that. We answer the two questions
as follows. As to the first question, a mainland co ast equidistance line is the starting-point. Since
we say it is equitable in the circumstances, it is al so the finishing point. As to the second question,
there is ⎯ I am tempted to say, obviously ⎯ a 12-mile marine bounda ry zone around Serpents’
Island. Point X is the point where the two lin es meet. The boundary on the 12-mile zone around
Serpents’ Island as featured on all maps –– there are 19 of them that go that far –– stops at a certain
point; this is pointX, east of the island. Fr om there, the boundary moves to meet the mainland
equidistance line.
36. Let me put this another way, we do not suggest that Romania and the Soviet Union in
1949 reached an agreement as to the entitlement of mainland coasts to marine areas beyond
12miles. Their concern in the relevant part of the general and special procès-ve
rbaux was
exclusively with the island. As shown by the maps, the boundary on the 12-mile arc stops due east
of Serpents’ Island, in the location we have proposed. But where it stops is a point of detail for you
to decide. That the equidistance line does inters ect the 12-mile arc agreed around Serpents’ Island
is a geometric requirement of the situation, as certain as anything can be in the uncertain world of
maritime delimitation.
Jurisdiction
37. This brings me, finally, to the jurisdic tion argument. I will not spend much time on it
because SirMichael was extremely brief. Alt hough formally maintaini ng Ukraine’s position, he
was reduced to protesting, in the face of Professor Pellet’s onslaught in the first week, that - 55 -
Ukraine’s was a good faith interpretation of paragraph4 (h) of the Additional Agreement. He
accepted that the compromis in the Anglo-French arbitration was different. His reliance on that
decision (so unfavourable to Ukraine in other r espects) is now limited: it constituted “a useful
example of a court, in a matter of delimitation, taking care to stay within the bounds of the
111
jurisdiction conferred upon it” . Finally, he downplayed the importance of the issue on the basis
that, on Ukraine’s case, the line simply proceeds south-east from point F: that of course is a matter
112
of merits, not jurisdiction .
38. MadamPresident, Members of the Court, w ith all due respect to this fading argument,
you clearly have jurisdiction under paragraph4 (h) to give no effect to Serpents’ Island beyond
12 miles ⎯ and this is true whatever the reasons for zero effect might be. A compromis providing
for submission of “ the problem of delimitation of the continental shelf and exclusive economic
zones” covers any delimitation in accordance with international law, whether by reason of the
1949Agreement, Article121(3) of the 1982 Conven tion or the general law of delimitation. The
idea that Romania in 1997 tacitly abandoned its long-standing position that Serpents’ Island had no
effect beyond 12miles is frankly fanciful ⎯ and even more so when the 1997 Additional
Agreement makes specific reference to Article121. At a more general level, the view that you
have jurisdiction to semi-enclave the Island at 12-and-a-halfmiles and not at 12miles has no
attraction whatever. Enclaving or semi-enclavi ng tiny islands is a well- established technique in
delimitation: it is not excluded by a general ma ndate to delimit the exclusive economic zone and
continental shelf.
39. This also disposes of Ukraine’s point as to Articles 74(4) and 83(4) of the
113
1982 Convention . An agreement between two States wh ich delimited a 12-mile territorial sea
around a tiny island within the EEZ or continental shelf of another State would be an agreement to
which Articles 74(4) and 83(4) applied, and that would be true even if that was all that the
agreement did.
111
CR 2008/26, p. 49, para. 21 (Wood).
112
CR 2008/26, p. 49, para. 22 (Wood).
11CR 2008/28, p. 11, paras. 6-7 (Wood). - 56 -
Conclusions
40. Madam President, Members of the Court, to summarize:
(1) The 1949 Agreement delimited ⎯ which is to say, defined ⎯ a 12-mile maritime boundary
zone around Serpents’ Island. Such a zone w as opposable to Romania from that date, and it
was repeatedly reaffirmed.
(2)You cannot have a 12-mile zone without a boundary, and the boundary of the zone was
repeatedly shown on maps, including treaty maps, as going beyond point 1439 and beyond the
innominate endpoint shown on map134; in short, it delimited the domain of the Island
vis-à-vis Romania.
(3) That zone, and the boundary around it, goes round the Island and connects with the delimitation
line drawn from the adjacent mainland coasts of the Parties wherever you draw it.
(4) You have jurisdiction to declare that the boundary runs as we have described.
41. MadamPresident, with your permission, my colleague, Mr.SimonOlleson, will now
deal with the points made on the subsequent maps by Sir Michael. Madam President, Members of
the Court, thank you for your attention.
The PRESIDENT: Thank you, Professor Crawford. I now call Mr. Olleson.
OMLL.ESON:
V. THE MARITIME BOUNDARY AROUND SERPENTS ’ ISLAND
AS SHOWN BY THE MAP EVIDENCE
1. Madam President, Members of the Court, it is an honour to appear before the Court; it is
also an honour to have been entrusted with this part of Romania’s presentation relating to the map
evidence. Professor Crawford has already dealt with the arguments in relation to those maps
depicting the agreed boundary which formed part of the 1949 procès-verbaux. I shall deal with the
maps relied upon by Romania as confirming and corroborating its arguments as to the effects of the
1949 procès-verbaux.
2. As in its Counter-Memorial and RejoinderUkraine clearly remains embarrassed by the
map evidence. Sir Michael Wood advanced various reasons why the Court should be slow to place
any reliance on the various maps, and their clear depictions of the agreed maritime boundary. - 57 -
3. But he was slow to show you any of th e depictions of the agreed maritime boundary ⎯
not one of the maps relied upon by Romania as s howing the agreed boundary, whether in whole or
in part, was shown to you. What is more, he was unable to show you a single subsequent map
contradicting Romania’s case as to the extent of the agreed boundary.
4. The map evidence is all one way. Moreover a large proportion of the maps in question
were produced by Ukraine and, previously, the Soviet Union.
5. Sir Michael did not attempt to challenge this fact directly. Rather he mounted a collateral
attack on the map evidence on various fronts; broadly he suggested that the maps relied upon by
Romania are examples of “copy-cats” from earlier charts 11, in particular the Soviet charts from
1957, or, failing that, that they were examples of the cartographers in question going off on frolics
of their own. This was particularly the case in re lation to the official maps which are inconvenient
for Ukraine’s case and produced by its own State agencies.
6. As to the first point, the earliest charts which either side has located are the charts
produced by the Soviet Union in 1957, not long after conclusion of the 1949 agreements. The very
fact that the Soviet Union produced a chart showing the boundary extending all the way around
Serpents’ Island in 1957, just a year after Romania extended its territorial sea from 6 to 12 miles, is
significant. It is a further indication, if an y were needed, that Ukraine’s argument as to the
“prospective” territorial sea cannot be correct.
7. Further, the fact that the geographic data may be shared between States does not mean that
a State’s hydrographic services do not critically ev aluate that data, or do their own work and
research prior to producing their own charts. Furthe r, the suggestion that all the other maps were
all in some manner based on the 1957 Soviet maps has not been supported by any evidence. Those
maps, although consistent on our point, are far from being identical.
8. As to SirMichael’s second point, the very fact that Ukraine attempts to distance itself
from charts produced by the Soviet Union, and even more from the charts produced by its own
cartographers, demonstrates its discomfort. The fact is that each of the maps, showing the agreed
border, produced by the Soviet Union (and this over a period ranging from 1957 to 1985), and
114
CR 2008/28, p. 21, para. 41. - 58 -
those produced by Ukraine (from 2000 to 2007), was produced by their relevant State bodies.
These are not private sector maps.
9. You were shown in the first r ound an illustration, contained in the Lighthouses of Ukraine
volume published in 2007, which clearly showed a maritime boundary, undifferentiated along its
length, extending around Serpents’ Island to a poi nt to the east; SirMichael was reduced to
115
deriding that map as being taken from wh at appeared to be a “picture book” or a “coffee-table
book” 116. True, it is beautifully prepared ⎯ but there is nothing wrong with well-adorned coffee
tables. However, the material point is that the book was prepared by the State Hydrographic
Service of Ukraine, a part of the Ministry of Transport and Communications of Ukraine.
[Slide: chart entitled “Western Part of the Black Sea From Odessa to the Sulina Mouth”, produced
by the Ukrainian State Hydrographic Institution Branch “Ukrmorcartographia” (2001) [RMA 23]]
10. Similarly, the various other maps produced by the Soviet Union and by Ukraine were all
produced by State bodies; I will take but one example, the map entitled “Western Part of the Black
Sea from Odessa to the Sulina Mouth”, dating from 2001 11, which you have previously been
118
shown, and which SirMichael suggested was a “one-off chart” . It was tabV-20 in the first
round, and is at tabV-1 of your folders today. The chart was produced by the Ukrainian State
Hydrographical Institution, Branch “Ukrmorcartographia”. Further, as you can see on the
enlargement, it was printed by the Kyiv’ska Milita ry Cartographical Factory. Similar indications
of provenance are shown on the other, non-identical Ukrainian map published in 2003 119.
[End slide]
11. All of the maps produced by the Soviet Union and Ukraine show the agreed boundary —
depicted using the same symbol along its entire length— as extending further than the last point
shown on map 134. In most cases, the boundary is shown as extending round Serpent’s Island to
the point located to the east of the island. The sa me is true of the 11 Romanian maps, which date
from 1958 through to 2003.
11CR 2008/28, p. 21, para. 43.
116
CR 2008/28, p. 22. para. 44.
117
MR, Ann. MR A 23.
11CR 2008/28, p. 22, para. 43.
11MR, Ann. MR A 25. - 59 -
12. In the end one felt that SirMichael coul d never be satisfied. He complained when the
maps were different and also when they were the same. Not content with leaping on inconsistency,
he leapt on consistency as well!
13. Madam President, Members of the Court, in the first part of this presentation, I will deal
briefly with the correct approach to the map evidence.
14. In the second part, I will demonstrate that the maps relied upon by Romania, which show
both Sir Michael’s “hook” and the islet, are consistent and mutually reinforcing.
15. Finally, I shall deal in more detail with SirMichael’s various collateral attacks on the
map evidence.
I. The correct approach to the map evidence
16. Turning first to the correct approach in relation to the map evidence, it is common
ground that only the sketches, plates and maps fo rming part of the various procès-verbaux can be
considered treaty maps.
17. Sir Michael referred you to the dictum of the Chamber in the Frontier Dispute (Burkina
Faso/Mali) case, but limited himself to quoting only parts of the relevant passages 120. In particular,
he smoothly glided over the fact that the Ch amber referred to maps annexed to boundary
agreements as constituting only one example of ma ps which “fall into the category of physical
expressions of the will of the State” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment,
I.C.J. Reports 1986, p. 582 (para. 54); emphasis added).
18. He also sought to distinguish your recent decision in Malaysia/Singapore, on the ground
that the six maps, which you held to be significant, contained clear annotations as to Singapore’s
121
sovereignty over Pedra Branca . But the maps in the present case are clear, and consistent, as I
will show in the second part of my presentation.
19. As you made clear in the Malaysia/Singapore case, maps falling into the category of
“physical expressions of the will of the State” may be of relevance not only when they constitute
part of a boundary agreement, of which they form an integral part, but also , for instance, in so far
120
CR 2008/28, pp. 11-12, paras. 9-10 (Wood).
12CR 2008/28, pp. 12-13, paras. 12 (Wood). - 60 -
as they constitute a clear admission against interest of the State producing them. As you also made
clear, for this purpose, it is not necessary that the admission against interest should appear in a
treaty or take place in inter-State negotiations ( Sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, para.271;
Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005 , p.119, para.44). SirMichael
likewise glossed over the question of admissions agai nst interest, but it was on this basis that you
attributed significance to the clear annotations on the six maps in Malaysia/Singapore.
20. Further, as the Eritrea/Ethiopia Boundary Commission observed in a passage which you
quoted with approval in your Judgment in Malaysia/Singapore:
“‘The map still stands as a statement of geographical fact, especially when the
State adversely affected has itself produced and disseminated it, even against its own
interest’.” (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and
South Ledge (Malaysia/Singapore), Judgment of 23May 2008, para.271, quoting
Decision regarding Delimitation of the Border between the State of Eritrea and the
Federal Democratic Republic of Ethiopia, 13 April 2002, para. 3.28.)
Counsel before Ukraine sought to distinguish cases involving territorial sovereignty from maritime
delimitation: this was the point of Sir Michael’s mantra concerning the “State border”, which you
heard at length last Tuesday and at numerous other points 12. But a map produced by a State
clearly depicting its view of the course of a maritime border may just as well be considered
relevant and corroborative as a map indicating its views as to sovereignty over territory.
II. The consistency of the map evidence in depicting the agreed boundary around Serpents’
Island
21. MadamPresident, Members of the Court, I turn then to th e second part of my
presentation, in which I will briefly demonstrate that the various maps relied upon by Romania are
entirely consistent in depicting the agreed boundary as extending beyond pointF, and around
Serpents’ Island.
22. The 31maps submitted by Romania are consistent in depicting the agreed boundary
running around Serpents’ Island. Although SirMich ael was reluctant to show you any of those
maps, as I have said, his description of the agreed boundary as following the course of a “hook”
12CR 2008/24, pp. 36-50, paras. 1-61, passim (Wood); and see, e.g., CR2008/26, pp.42, para.1; 43, para.5;
44, para.9(ii); 48, para.17; p.52, para.32; 53, para.39 (Wood); CR2008/2, pp.11, para.5; 14, paras.20 and 22
(Wood); see also, e.g., CR 2008/24, pp. 12, para. 9; 26, paras. 28 and 29; 27-28, para. 35; 29, para. 38 (Bundy). - 61 -
was entertaining. However, it was also not en tirely accurate. Some of the maps show hooks,
others show circles all the way around the island; here, the relevant piratical analogy is the noose.
23. Even where the maps in question do not de pict the entire extent of the boundary because
the depiction is curtailed by the edge of the chart, they remain consistent with Romania’s case. In
particular, and irrespective of which State produced them, they are all consistent in showing the
boundaries as extending beyond point F.
[Slide: details of Soviet maps]
24. To demonstrate this, I start with a few of the Soviet maps –– they are at tab V-2 of your
folders. You can now see on the screen a detail of one of the large-scale maps produced by the
Black Sea navy of the Soviet Union in 1957 123, which shows the full extent of the 12 mile arc ⎯
Sir Michael’s “hook” –– around Serpent’s Island. Now becoming visible, as it fades into view, is
the other 1957 map, which was at tabV-17 in the folders in the first round. Although drawn to
different scales, and covering different areas of th e Black Sea, the depiction of the “hook” is very
similar, although on the second map, its full extent is curtailed to the east.
25. Now appearing, is a detail of a furt her Soviet map, this time dating from 1982 124; this
was not among the maps which you were shown by Pr ofessor Crawford in the first round. What is
notable, is that although the southern part of the boundary is cut off by the lower edge of the map, it
is clear that the Soviet Union nevertheless unders tood the boundary to extend all the way round to
the south of Serpent’s Island ⎯ as you can see, the arc–– the point of SirMichael’s hook––
reappears at the appropriate place to the east, heading northwards.
26. The last of the Soviet maps I will show you, dating from 1983 125, is this time curtailed to
the west. Despite the fact that it does not show the mainland or any part of the territorial sea
boundary, it nevertheless also depicts the agreed boundary running along the 12-mile arc up to a
point to the east of Serpents’ Island.
[End slide]
[Slide ⎯ details of Romanian maps]
123
CM, Ann. RMA 16.
124
CM, Ann. RMA 18.
12CM, Ann. RMA 20. - 62 -
27. Turning to a few of the Romanian maps –– this is tab V-3 in your folders –– you can now
see a detail of the earliest Romanian map, which the Parties have placed before you, dating from
1958 12; it shows the entirety of Sir Michael’s “hook”.
Romania also produced maps on which the boundary was curtailed. You can now see a
detail of another of the Romanian maps, dating from 1970 127. The depiction of the agreed
boundary is curtailed to the east; nevertheless, it clearly demonstrates that Romania understood
that the agreed boundary extended well beyond the poi nt depicted on map134. On this further
Romanian map, dating from 1982 128, the boundary depicted is similarly interrupted by the edge of
the chart although, in this case, this is so a little further to the west.
28. However, to the east, the boundary did extend all the way round. This is confirmed from
other larger-scale Romanian maps which depicted th e agreed boundary in its entirety; to take one
later example, you can now see a detail of a Romanian map dating from 1995, which shows the
entirety of the hook 129.
[End slide]
[Slide: Ukrainian maps]
29. Finally, I turn to the Ukrainian maps. These are clear, none of them is curtailed, and they
are all consistent in showing the entirety of the agreed boundary as extending from the last point of
the land/river boundary, through points1438 and 1439, and then along the exterior margin of the
12-mile zone around Serpents’ Island, to a point well beyond point F and, in fact, all the way to the
tip of Sir Michael’s hook.
The first Ukrainian map, dating from 2000 130, shows the 12-mile arc around to a point to the
131
east of Serpents’ Island; the same is true of a chart dating from 2003 .
132
30. The final chart I will show you, dating from 2001 , is the map which depicts the
12-mile arc to the north of Serpents’ Island using the international symbol for the outer limit of the
12CM, Ann. RMA 26.
127
CM, Ann. RMA 28.
128
CM, Ann. RMA 29.
12CM, Ann. RMA 32.
13CM, Ann. RMA 21.
13CM, Ann. RMA 25. - 63 -
territorial sea. You will recall that the boundary from the land/river boundary along the course of
the “hook” to the point to the east of the island where the line terminates on the other maps, is
depicted using the symbol for an international maritime boundary.
31. And this brings me on to the third part of my presentation, MadamPresident, Members
of the Court, and Sir Michael’s various criticisms of the map evidence.
32. In his comments on the “symbology” used on the charts, Sir Michael suggested that the
supposed “proliferation of symbols” shows a degree of “confusion and inconsistency” 13.
33. Sir Michael’s complaints in this regard are without any foundation. True, there is some
variation of the symbols used to depict the border as between the individual charts; this results at
least in part from evolving cartographical conven tions during the period of 50 or so years over
which the charts were produced. But there is neith er confusion, nor inconsistency. Each of the
maps, without exception, uses a single symbol to depict the course of the maritime boundary
constituted by the “hook”, and they consistently do so either along its entire length, up to a point to
the east of the island, or, where the depiction is curtailed by the edge of the chart, in a manner
which is consistent with the boundary extending that far.
34. The only map in which a different symbol is used along the course of the 12-mile arc
around Serpent’s Island is the 2001 Ukrainian chart ⎯ this is the map Ukraine has effectively tried
to disown as having been produced by a cartographer going off on a frolic all of his own. On this
map, although there is a difference in symbols, the reason for that difference is clear. As with the
other charts, there is a single symbol used along the entire course of the “hook”, all the way to the
point to the east of Serpents’ Island; from there, to the north, another symbol ⎯ different ⎯ is
used for the continuation of the 12-mile arc, around the outer limit of the territorial sea.
35. Sir Michael suggested a number of reasons why the Soviet Union might have produced
charts showing the “hook” in 1957; he talked of submarines, innocent passage, and “significant
134
military presence” stationed on Serpents’ Island .
13CM, Ann. RMA 23.
133
CR 2008/28, p. 21, para. 42 (Wood).
13CR 2008/28, pp. 20-21, para. 40 (Wood). - 64 -
36. No evidence was provided in this regard ⎯ again, as with other aspects of Ukraine’s
case, it was pure speculation. And his suggestion is inconsistent with the use of a single symbol
along the course of the entire boundary depicted. I recall that in 1956, prior to the production of
the 1957 maps, Romania had extended its territorial sea from 6 to 12 miles. The point of
intersection of that 12-mile territorial sea, as ProfessorCrawford stated earlier, with the zone
around Serpent’s Island would not have been diffi cult to calculate; one would have simply
measured 12 miles from the relevant base point on the Romanian coast. Nevertheless, the Soviet
cartographers used a single symbol along the entire course of the agreed boundary.
37. In any case, any speculation that the naval cartographers of the Soviet Union in 1957
were concerned with some sort of security zone around the island is also belied by the fact that they
did not go far enough! If security or military considerations had indeed been the motivation for the
depiction of the hook beyond Romania’s new 12-m ile territorial sea, the boundary should have
been depicted as running all the way around the isla nd, so as to indicate the outer limit of this
“security” zone in the north as well. A 12-mile circle would have been enough. The Soviet
security forces would have been just as concerned with submarines proceeding from Odessa as
towards it! Further, on Sir Michael’s hypothesis, one would have expected a similar indication of a
security zone along the Soviet mainland coasts. But there is none on the 1957 charts.
38. SirMichael’s other suggestion, that the depiction of the hook on subsequent charts all
goes back to the Soviet charts, that all other St ates simply “copied” the 1957 Soviet charts, is also
speculation 135. The charts submitted by Romania are on a wide variety of scales, and show a
variety of different areas of the Black Sea. They are not mere copies.
39. Further, in seeking to distance itself from the charts produced by the Soviet Union and by
itself, Ukraine suggests that the charts should not be relied upon because they are produced not by
lawyers or diplomats but by hydrographers and cartographers 136⎯ “lesser breeds without the law”,
so it is implied. But these are navigational charts which give every indication of being carefully
prepared. As, for example, is the case with the 2001 Ukrainian map. And maritime boundaries are
not only relevant to the arcane world of legal advisers ⎯ sailors need accurate information too.
135
CR 2008/28, pp. 21, para. 41 (Wood).
13CR 2008/28, p. 20, para. 39 (Wood). - 65 -
40. In the end, Ukraine is reduced to sayin g in effect: “Although our official cartographic
agencies produced and published these official charts showing a boundary on various occasions, we
did not really mean it.” But a chart publishe d by a State showing a boundary without any
qualification must be taken as “evidence of the [State’s] official view at that time”, as you said in
relation to the official French charts at issue iMinquiers and Ecrehos (Minquiers and Ecrehos
(France/United Kingdom), I.C.J. Reports 1953 , p. 71). There is no qualification in that statement
to the effect that it is necessary to verify ththe State in question really meant what the map it
produced depicted.
Conclusion
41. Madam President, Members of the Court, in conclusion, the various charts submitted by
Romania to the Court confirm Romania’s position as to the effect of the 1949 Agreements, and the
understanding of both Romania and the Soviet Union, and subsequently Ukraine, in that regard:
⎯ they consistently depict the boundary agreed by the 1949 procès-verbaux;
⎯ they consistently show that boundary as havi ng the same character along its entire length,
including beyond the Romanian territorial sea;
⎯ and they consistently show the boundary as pr oceeding to a point located to the east of
Serpent’s Island, far beyond the extent shown on map 134.
42. Further, the maps produced by the Soviet Union, and subsequently Ukraine, constitute a
clear series of admissions against interest, extending over a prolonged period of time.
Madam President, Members of the Court, tha nk you for your attention. Madam President, I
would ask you now to call on Mr. Daniel Müller.
The PRESIDENT: Thank you, Mr. Olleson. We now call Mr. Müller.
M. MÜLLER :
VI. LA DIGUE DE SULINA
1. Madame le président, Messieurs les juges, il n’est guère étonnant que la Partie ukrainienne
ait essayé, de nouveau, de discréditer l’utilisation de la digue de Sulina comme point de base pour
la construction de la ligne d’équidistance comme elle s’y était déjà employée lors de la phase - 66 -
137
écrite . M.Bundy a voulu vous faire croire que la Roumanie fait de l’«affaire de l’île des
Serpents» ⎯ ce qu’elle n’est pas et ce qu’elle ne devrait pas être à nos yeux ⎯ l’affaire de la digue
de Sulina 138 ⎯ ce qu’elle n’est certainement pas non plus , comme elle ne constitue pas davantage
celle de la presqu’île de Sacalin ou celle du cap Khersones.
2. Et pourtant, vous avez dû entendre les messages subliminaux envoyés de l’autre côté de la
barre tout au long de la présentation ukrainienne de la semaine dernière : l’Ukraine, tout en utilisant
la digue de Sulina pour la cons truction de sa ligne représentant, selon elle, l’équidistance entre les
côtes des Parties, s’emploie à jeter un doute sur la pertinence de la digue dans la délimitation, en
raison de son caractère «artificiel» 139 ou parce que cette digue est le fait de l’homme,
140 e
«man-made» . A plusieurs reprises, M Bundy a suggéré qu’il s’agit, peut-être, d’une
circonstance spéciale 141sans pour autant en tirer des conséquences concrètes quant à la
construction de la ligne soi-disant «équitable» de l’Ukraine. Beaucoup de bruit pour rien !
3. Afin de dissiper les doutes créés par la Pa rtie ukrainienne sur cette partie de la côte
roumaine, il suffit de reprendre, assez rapidement, quatre points.
La digue de Sulina constitue une installation portuaire au sens de l’article 11 de la convention
de Montego Bay
o
[Projection n 1 : photo satellite de la digue de Sulina.]
4. Sur ce point, le professeurQuéneudec se mble être d’accord. Mais il n’a pas pu
142
s’empêcher de laisser planer un certain doute . Et pourtant, rien ne semble être plus clair: la
digue de Sulina est une installation permanente faisant partie intégrante d’un système portuaire
[celui du port de Sulina] qui s’avance le plus vers le large, pour emprunter les termes de l’article 11
de la convention.
137Contre-mémoire de l’Ukraine (CMU), p. 26, par. 3.53 ; p. 37, par. 4.13-4.14. Voir aussi réplique de la
Roumanie (RR), p. 50-53, par. 3.66-3.73.
138CR 2008/24, p. 15, par. 22 (Bundy).
139CR2008/24, p.31, par.48, p.31, par.52 (Bundy); CR 2008/26, p.27, par.34, p.41-42, par.94 (Bundy);
CR 2008/28, p. 37, par. 12, p. 49, par. 60 (Bundy) ; CR 2008/29, p. 34, par. 60 (Quéneudec).
140CR2008/24, p.15, par.22 (Vassylenko), p. 30, par. 48, p. 31, par. 52, p. 33, par. 59 (Bundy) ; CR 2008/28,
p. 44, par. 44, p. 45, par. 45 (Bundy) ; CR 2008/29, p. 31, par. 11 (Malintoppi).
141CR2008/24, p.31, par.48, p.33, par.59 (Bundy); CR 2008/26, p. 27, par. 34 (Bundy) ; CR 2008/28, p. 37,
par. 12 (Bundy).
142
CR 2008/29, p. 35, par. 61-62 (Quéneudec). - 67 -
5. Comme vous pouvez le constater su r la projection actuellement sur l’écran ⎯ montrant la
digue depuis la mer ⎯, la double digue constitue le point d’entrée dans le port de Sulina qui établit
le lien entre le trafic dans la mer Noire et celui du Danube. Sans la digue, le port de Sulina ne
serait plus utilisable depuis la mer et le port, qui n’est toujours pas connecté au système routier de
la Roumanie, ne constituerait rien d’autre qu’une impasse sans beaucoup d’intérêt. Pourtant, le
port n’a pas perdu son intérêt, mais constitue touj ours la plaque tournante du bras maritime du
Danube tel que défini par la convention de Belgrade, par laquelle transite environ 2 500 000 tonnes
143
de marchandises chaque année . Et bien que la digue ait pu pa raître très petite sur la photo que
MM. Bundy et Quéneudec ont bien voulu vous mont rer la semaine dernière, elle a une largeur de
150 mètres permettant à de très grands navires d’entrer dans le port.
6. La définition du terme «installation portuai re» donné par le Bureau des affaires maritimes
et du droit de la mer des Nations Unies inclut d’ailleurs expressément des digues (ou en anglais sea
walls) 144 protégeant le port ou ses installations. En out re, la digue de Sulina ne se trouve pas «au
large des côtes», mais elle est connectée avec ce lles-ci; elle ne constitue pas non plus une île
artificielle, ce qui rend inopérantes les clauses d’ exclusion de l’article 11 de la convention de
Montego Bay à son égard.
7. On ne peut contester la qualification de la digue de Sulina et son statut par rapport à la
convention. Elle constitue, avec son phare et les bouées marquant son entrée, une installation
permanente faisant partie intégrante du système portuaire du port de Sulina. Par ailleurs, le
procès-verbal de 1948 en a expressément fait état en se référant à la «digue du port de Sulina» 145.
En raison de cette qualification, et ceci est mon deuxième point, Madame le président, la digue de
Sulina fait, de jure et de facto, partie intégrante de la côte roumaine.
143 Administration fluviale du bas Danube (Gala ţi, Roumanie), statistiques concerna nt le trafic de navires sur le
Danube maritime, online: http://www.afdj.ro/statistics_en.html.
144NationsUnies, Bureau des affaires maritimes et du droit de la mer, Le droit de la mer: lignes de base:
examen des dispositions relatives aux li gnes de base dans la convention des NationsUnies sur le droit de la mer ,
New York, 1989, Glossaire (n 38).
145Voir RR, annexe RR2. - 68 -
La digue de Sulina fait, de jure et de facto, partie intégrante de la côte roumaine
8. De jure, d’abord, parce que la convention de 1982, le dit très clairement : «les installations
permanentes faisant partie intégrante d’un systèm e portuaire qui s’avancent le plus vers le large
sont considérées comme faisant partie de la côte» (a rticle 11 de la convention) . En tant que partie
de la côte roumaine, la digue, ou plus précisément son point «le plus vers le large», est intégrée
dans le système de lignes de base normales, droites ou mixtes.
9. De facto, ou plutôt de naturae, ensuite, parce que, comme vous pouvez de nouveau le
constater sur l’image satellite projetée sur l’écran, la digue s’intègre dans la configuration générale
de la côte qui, vers le nord, continue le long de l’île sablonneuse. Cette continuité peut être
observée d’une façon particulière ment manifeste lorsqu’on prend en compte les lignes de base
(droites) de l’Ukraine de l’autre côté de la petite baie au nord de Sulina. Cette ligne, qui est
maintenant à l’écran, ne se traduit par aucun changement brusque ou remarquable.
10. Mais il y a un autre point, Madame et Messieurs les juges, sur lequel je voudrais attirer
votre attention. Bien que la digue de Sulina soit un ouvrage artificiel construit par l’homme, sa
nécessité est dictée par la nature et les circonsta nces naturelles particulières dans le delta du
Danube. Comme vous l’avez constaté l’année dernière au sujet du fleuveCoco dans l’affaire
Nicaragua c.Honduras , «[t]ous les deltas sont par défin ition des accidents géographiques de
caractère instable dont la taille et la forme évoluent sur des périodes relativement courtes»
(Différend territorial et maritime entre le Nica ragua et le Honduras dans la mer des Caraïbes
(Nicaragua c.Honduras) , arrêt du 8octobre2007, par.32 [«All deltas are by definition
geographical accidents of an unstable nature and suffer changes in size and form in relatively short
periods of time»]). Le problème du dépôt des alluvions par le Danube dans le delta est important et
a été justement à l’origine de la construction de la double digue à partir de1856 pour assurer
l’entrée dans le port et dans le bras de Sulina. L’avancée constante de la terre a rendu nécessaire
les extensions successives qui se sont terminées en1980 ⎯soit, permettez-moi de dire ceci en
passant, bien avant la date critique, qu’on la fixe à1995 146ou ⎯ce qui est extraordinaire ⎯
147
à 2004 . L’extrémité de la digue de Sulina n’est donc aucunement fixée arbitrairement; elle ne
146
CR 2008/20, p. 60, par. 14 (Aurescu) ; CR 2008/21, p. 22-23, par. 5-10 (Dinescu).
147
CR 2008/28, p. 25, par. 6 (Malintoppi). - 69 -
fait qu’anticiper la configuration de la côte te lle qu’elle va se présenter dans quelques années.
Vous avez déjà vu l’île sablonneuse qui s’est formée et qui continue à se développer au nord de la
digue. Vous pouvez également constater sur cette autre photo satellite, montrant la digue depuis la
mer, que, de part et d’autre de la digue, l’eau est déjà très peu profonde, pour le plus grand plaisir
des pélicans. Il y a même deux îles, formées naturellement par le phénomène du delta, le long de la
partie sud de la digue sur lesquelles ont été c onstruits un phare et une station météorologique
o
respectivement. [Projection n 2 : carte MR A 37 ⎯puis détail sur la digue de Sulina.] Sur la
carte marine publiée par la direction générale de la navigation et de l’océanographie du ministère
de la défense de la Fédération de Russie en 1994, on ne peut que rele ver que les profondeurs
marquées autour de la digue ne dépassent pas les trois mètres. Sur la même carte on voit également
que l’entrée de la digue était, en 1994, d’ores et déjà cernée de nouveaux sédiments.
o
[Fin de la projection n 2.]
11. Madame le président, il ne s’agit donc au cunement d’une installation créée de toutes
pièces pour étayer ou améliorer la position de la Roum anie devant la Cour ou pour le processus de
délimitation en général. Les cinq kilomètres de la digue de Sulina qui pénètrent dans la mer ⎯ et il
s’agit de cinqkilomètres seulement bien que la digue ait une longueur totale de 7,5km ⎯ ces
cinq kilomètres donc ont été dictés par la nature et ne font qu’anticiper la configuration future de la
côte roumaine dont la digue forme une partie intégrante.
12. En tant que partie de la côte, la digue de Sulina est, dès lors, tout à fait apte à générer des
espaces maritimes et à être utilisée comme point de base, contrairement à l’île des Serpents qui,
bien qu’elle soit naturelle ⎯ ce qui est dans ce cas synonyme d’«hostile» ⎯, ne fait pas partie de la
côte ukrainienne. Et, pour en venir au troisième point de ma démonstration, le point de base sur
l’extrémité de la digue a été dûment notifié et a été expressément reconnu par la Partie ukrainienne
contrairement aux trois points de base choisis par l’Ukraine sur le littoral de l’île des Serpents.
Le point de base sur l’extrémité de la digu e a été dûment notifié et a été expressément
reconnu par la Partie ukrainienne
13. En s’acquittant de l’obligation qui lui inco mbe en vertu de l’article16 de la convention
de MontegoBay, la Roumanie a dûment communi qué et notifié son système de ligne de base
résultant de la loi concernant le régime juri dique des eaux maritimes intérieures, de la mer - 70 -
territoriale et de la zone contiguë du 7août 1990. Ce texte ne précise pas seulement dans son
article premier que la ligne de base inclut «les lignes droites reliant les points les plus avancés de la
côte, y compris … des autres inst allations portuaires permanentes» 148, il définit également, par ses
coordonnées géographiques, le point 2 situé à l’extrémité de la digue de Sulina 149. Ni l’Ukraine, ni
aucun autre Etat n’a protesté contre cette notification. Du reste, l’Ukraine, pour sa part, a
également notifié des installations portuaires comme constituant des points de base pour la
construction de sa ligne de base dans la merd’Azov 150. L’Ukraine tait également qu’elle a,
elle-même, utilisé le point extrême de la digue de Sulina -- notre point 2 -- pour la construction de
son premier point de base dans la notification de sa ligne de base de 1992 151.
14. De plus, Madame le président, l’Ukraine a r econnu le point 2. Ses conseils ont expliqué
la semaine dernière qu’aussi bien la constructi on du point de départ de la délimitation dont vous
152
êtes saisis ⎯nommé par la Roumanie pointF et expr essément convenu par le traité sur les
relations de 2003 ⎯ que la soi-disant ligne d’équidistance proposée par l’Ukraine 153 s’appuie sur le
point 2, c’est-à-dire le point le plus au large de la digue, comme point de base. Et ceci ne constitue
pas une surprise, car la détermination du point 2 comme point de base n’est pas seulement légitime,
mais ⎯et c’est mon quatrième et dernier point-- l’utilisation de la digue de Sulina pour la
délimitation est également corroborée par la jurisprudence et la pratique étatique.
L’utilisation de la digue de Sulina pour la délimitation est également corroborée par la
jurisprudence et la pratique étatique
15. Dans sa réplique, la Roumanie avait cité à ce sujet la sentence arbitrale dans l’affaire de
la Délimitation entre Doubaï et Sharjah qui confirme très clairement que «there is a body of
practice, and of conventional law, in which full effect has been given to harbour works in the
148 RR, annexe3 [«the straight lines which join the mo st advanced points of the coast, including…other
o
permanent harbour installations»]. Pour la traduction française, voir Bulletin de droit de la mer, n91, p. 11.
149Ibid. (annexe). Pour la traduction française, voir Bulletin de droit de la mer, n 19, 1991, p. 23.
150Bulletin de droit de la mer, n 36, 1998, p. 54 (point 11).
151 Ibid., p.52 (point1). Voir aussi http://www. un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/
UKR_1992_CoordinatesBlackSea.pdf.
152CR 2008/26, p. 47, par. 12 (Wood).
153
CR 2008/29, p. 35, par. 62 (Quéneudec). - 71 -
154
construction of frontal maritime boundaries as between opposing States» et que ce principe
s’applique également pour la délimitation entre Etats dont les côtes sont adjacentes 155. Appliquant
ces mêmes principes au cas d’espèce, le tribunal a inclus les installations portuaires de Doubaï et de
Sharjah dans le calcul de la ligne d’équidistance.
[Projection n o3 : photo satellite du port de Zeebrugge, Belgique.]
16. Ce n’est certainement ni le lieu ni le moment d’examiner extensivement la pratique
étatique concernant les installations portuaires. Néanmoins, je voudrais vous montrer un exemple
qui ne se trouve pas très loin d’ici. Le port de Zeebrugge à quelques kilomètres de Bruges en
Belgique. Comme vous pouvez constater sur l’écran , les installations portuaires s’avancent à
environ troiskilomètres dans la mer sur une côte qui, en dehors de ces installations, est tout
simplement droite. Il est évident que la prise en compte de ce point de base a, nécessairement, une
influence sensible sur toute délimitation. Et pourtant, l’accord de délimitation de la mer territoriale
entre la Belgique et les Pays-Bas signé en 1996 précise sans équivoque dans son article 2 :
«La limite, constituée par les points énoncés à l’article premier [,qui lui énonce
la ligne des délimitations], est basée sur le principe de l’équidistance à partir d’une
ligne de base maximale, à savoir la laisse de basse mer le long de la côte. Il a ét156enu
compte de l’extension vers la mer du port de Zeebrugge en Belgique…»
Cette petite protubérance qui, contrairement à la di gue de Sulina s’écarte nettement de la direction
générale de la côte n’a pourtant pas seulement été utilisée pour la délimitation des côtes adjacentes
du royaume voisin, mais également, avec les installations portuaires d’Ostende, pour la
157
délimitation avec la côte britannique qui lui fait face .
o
[Fin de la projection n 3.]
17. Madame le président, Messieurs de la Cour, la présente affaire n’est certainement pas
l’affaire de la digue de Sulina. Toutefois, la digue y trouve sa place. Elle constitue une installation
permanente du port de Sulina et une partie intégrante de la côte roumaine. La Roumanie est donc
154Sentence du 19octobre1981, ILR., vol.91, p.662 [traduction du Greffe: «dans la pratique comme dans les
règles du droit conventionnel, il a été donné plein effet à des installations portuai res dans l’établissement des frontières
maritimes entre Etats se faisant face»].
155Ibid.
156RTNU, vol. 2051, p. 190 (I-35449) [«The boundary, consisting of the points indicated in article 1, is based on
the principle of equidistance from a maxi mum base line, namely th e low water mark along the shoreline. Account has
been taken of the seaward extension of the port of Zeebrugge in Belgium…»].
157D. H. Anderson, «Recent Boundary Agreements in the Southern North Sea», Int’l & Comp LQ, vol. 41, 1992,
p. 418. - 72 -
en droit d’invoquer ce point de base pour les besoin s de la délimitation et de lui donner tous ses
effets, malgré les insinuations de la Partie ukrainienne.
18. Madame et Messieurs les juges, ceci conclut ma présentation et je vous remercie de votre
bienveillante attention.
The PRESIDENT: Thank you, Mr. Müller. This br ings to an end to the proceedings for this
morning which will be resumed at 10 a.m. tomorrow morning. The Court now rises.
The Court rose at 1 p.m.
___________
Public sitting held on Monday 15 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)