INTERNATIONAL COURT OF JUSTICE
P
CASECONCERNING MARITIMEDELIMITATIONINTHE
BLACKSEA
(ROMANIA v.UKRAINE)
l'
COUNTER-MEMORIAL
SUBMITTED BY UKRAINE
VOLUME 31
19May2006 TABLEOFCONTENTS
CHAPTER1 TEE BACKGROUNDANDSCOPEOFTHEDISPUTE ...................
Section 1 Introductjon ................................................I
Section 2 The.Structureof Ukraine'sCounter-Memorial ................-.....
CHAPTER2 THE COURT'SJURISDICTION ..................................................
CHAPTER 3 THEGEOGRAPIIY OF THE RELEVANT AREA ...................13...........
Section I The Geographyof the BlackSea .............................13.................
Section 2 TheRelevantCoasts of theParties...........................14................
A . Ukraine'sCoast ............................................16........
....
The Continental Coastsof Ukraine .....................1.......
(i)
(ii) The Geographical Characteristics of
Serpents'Island......................................20.............
B . Romania's Coast ...........................................25..........
.................
Section3 The RelevantArea ........................................................
CHAPTER4 THE ERRONEOUSAND ARTIFICIALNATURE OF
ROMANIA'SMETHODOLOGY .....................................3...........
Section 1 Introduction ..............................................33.......
................
Section 2 The ArtificialCharacter of Romania'sTwo-Sector
Approach ..................................................34..
.................
A . Romania'sNorthern "Adjacent Coasts"Sector ................3....
(i) Romania's ProvisionalEquidistance Line Is
Wrongly Calculated...................................3...........
Romania's Use of Artificial Basepoints on
(ii)
Its Coast while Ignoring Geographic
BasepointsonUkraine'sCoast ..........................7......
(iii)Romania then Claims More than Its
"ProvisionalEquidistance Line" ........................7....... (iv) Romania's Methodology Ignores AI1 of
Ukraine'sSouth-Facing Coast ...........................9.......
B. Romania'sSouthern "Opposite Coasts" Sector ................40........
(i) Romania'sSelective Approach to theParties'
RelevantCoasts ......................................40........................
Section3 Romania's"EnclosedSea" Argument ........................43.............
.................................................
Section 4 The Relevanceof State Practice 47
A. Legal Constraints on the Relevance of State
Practice....................................................48........................
B. IndividualExamples Cited byRomania ....................4.....
C. Examples of State Practice Where Full or
Substantially Full Effect Was Given to Small
Islands......................................................55.
................
l (I AdjacentCoasts ......................................56.......................
~ (ii) OppositeCoasts .......................................8...........
I . (iii) Examples Where the Length of the Coasts
Was anImportantFactor ..............................62.................
l
l
D. Conclusions to Be Drawnfrom StatePractice ................63....
CHAWFR 5 TEE DIPLOMATIC HISTORY .......................................6......
Section 1 Introduction ...............................................65.......
...............
Section 2 Brief Review of Historical Developments ....................65..........
Section 3 Establishment of the Border Between the Soviet
Union and Romania, and the Allocation of
Serpents'Islandto the Soviet Union, 1947-1948 ..............74......
A. Treaty of Peace between Romania and the Allied
and AssociatedPowers 1947 ("the 1947 Peace
Treaty "1....................................................77...
..............
Protocol of 4 February 1948 to Specify the Line of
B.
the StateBoundaryBetween thePeople'sRepublic
of Romania and the Union of the Soviet Socialist
Republics ("the 1948 Protocol")..............................-78.............. Proc2s Verbalof 23 May 1948("the1948 Procbs
Verbal").....................................................80..
.............
Section 4 The 1949 State Border Line Delimitation and
Demarcation ................................................8.......
......
Procts Verbal Signed on 27 September 1949 ("the
General 1949Procks Verbal") ................................0.......
The Individual Prods virbaux for Points 1438
and 1439 ....................................................85...
...........
The Overall Effect of the 1949ProcksVerbaux ...............8....
The USSR-RomaniaTreaty on the Regime of the
Romanian-Soviet State Border. 25 November
1949("the 1949 State Border Treaty") .........................4......
Section 5 Soviet-Romanian Border AgreementsAfter 1949 ..............5..
A . Act Relating to Border Sign 1439. 26 December
1954 ........................................................9...................
Soviet-Romanian State Border Regime Treaty.
27 February 1961 ("the 1961 Border Regime
Treaty ").....................................................97.
...............
Procgs Verbal of 4 September1974 ("theGeneral
Proc2s Verbal 1974") .......................................100...................
Soviet-Romanian Border NegotiationsAfter 1974 ............04.
Soviet-RomanianContinentaS l helfand EEZ
Negotiations 1967-1987 .....................................05.......
Section 6 Ukraine-Romania Maritime Negotiations After
1991 .......................................................10
................
A . The 1997 Treaty .............................................09..........
B . The 1997Exchange of Letters ..................................................
C . The 2003 Treaty ............................................112........................
Section 7 Romania's 1997 Notification of Its Straight
Baselines to theUnited Nations ...............................................
Section 8 The Cartographic Evidence ..................................1...........
A . Cartographic Evidence in General............................118............. ......................................................
.................
H . Proportionality 166
Section 7 Conclusion Regarding the Applicable Law .....................7....
CHAPTER7 THE PROVISIONAL EQUIDISTANCE LINE ......................169...........
Section1 Tncroduction ..............................................169......
................
Section 2 The Provisional Equidistance Lne Is a Strict
Equidistance Line Drawn from the Relevant
Basepoints on Each Party'sCoasts ...........................................
Section 3 Serpents' Island Is Necessarily One of the
Basepoints ................................................177....
................
A . Serpents' IslandIsan "Island". Not a "Rock"...........................
.....................................
B . Serpents'Island Is a Significant Island 185
(i) TheHistorical Importance of SerpentsYsland ...........1..6.
(ii) PresentImportanceof Serpents'Island..............................
Section4 The Course of the ProvisionalEquidistanceLine ............198.....
CHAPTER 8 THERELEVANTCIRCUMSTANCES .............................201.................
Sectionl The Geographical Factors.................................201....................
A . Introduction ..............................................201......
................
B . The Physical Geographical Framework of the
Area .....................................................203 .................
The Shape of the Relevant Maritime Area.............20...
(i)
(ii) The Geographical Predominance of Ukraine
inthe Area ..........................................2.............
(iii) TheDisparity Between Coastal Lengths ...............2....
C . TheRelevantFactors of PoliticalGeography ...............211........
Section2 StateActivitiesin the RelevantArea........................2........
A . Licences Granted for the Exploration and
Exploitation oOil and Gas in the RelevantArea ............213..... B. State Activities in Respect of Fishing Practices in
the Relevant Area ..........................................216........................
1 Section3 Third StateDelimitations in theBlack Sea .....................9...
A. The Relevance of Third State Delimitations in the
Black Sea ...................................................1....
.........
~ B. The Black Sea Agreements Cited by Romania ................2..
Turkey-USSR Agreements, 1978and 1986-
(i) 1987 .................................................224...
................
(ii) The Agreement Between Bulgaria and
Turkey,1997 ........................................226.....................
(iii) The "Relevant Circumstances" Established
by These Agreements .................................228..................
CHAPTER9 UKRAINE'S DELIMITATION LINE ................................231.................
Section l Reminder and Explanation of Ukraine's
Negotiating Line Proposed to Romania .....................231...........
Section 2 The Adjustment of the Provisional Equidistance
I Line in the Present Proceedings to Achieve an
Equitable Solution .........................................235......................
A. Disproportion in Coastal Lengths Must Be
Reflected in Order to Reach anEquitableSolution. .........,237.
B. Serpents' IslandDoes Not Justify Any Adjustment
of the Provisional Eguidistance Line in Romania's
Favour .....................................................23..
..............
CHAPTER10 TESTINGTHE EQUITABLENESSOFTHERESULT .............24...
:
Section 1 Introduction ..............................................241....
..................
Section 2 Romania's Claim Line Fails to Satisfy the
l Proportionality Test........................................243......................
l Section 3 Ukraine's Delimitation Fully Satisfies the
I Proportionality Test........................................246.......................
Section 4 Unlike Romania'sMethod, Ukraine'sDelimitation
Does Not Produce Any "Cut-OfYEffect ....................247..........
I Section 5 AllegedSecurity Interests. ..................................248..................
I Section6 Conclusion ...............................................249.............
CHAPTERl1 SUMMARY OFUKRATNE'S REASONING ........................251
SUBMISSIONS
LISTOF ANNEXES LISTOFFIGURES
~i~urg1-1 BlackSea Overview
Figure 3-1 Relevant UkrainianCoast
Figure 3-2 The Parties'StraightBaselines
1 Figure 3-3 UkrainianCoastEliminated by Romania
Figure 3-4 Projection of Ukraine'sCoastal Fronts
Figure3-5 PopulationCentres onUkraine'sBlackSea Coast
Figure 3-6 Topographic Map of SerpentstIsland
Figure3-7 Relevant Romanian Coast
Figure3-8 Romanian CoastalFaqade
1
Figure 3-9 Projection of Romania'sCoastalFront
I Figure 3-10 Both Parties'Coastal Projections
Figure 3-11 The Relevant Area
Figure3-12A Relevant Area According tRomania
Figure 3-12B Comparisonof Relevant Areas
Figure 4-1 SulinaDyke and SacalinPeninsula
l
1 Figure4-2 Effect of SnajDyke
Figure 5-1 Territorial Sea BoundaryAgreed in 1949 Contrastedto the Boundary that
Romania Alleges Was Agreed in 1949
Map 134Annexedto the 1949 ProcGs Verbal
Figure5-2
Figure 5-3 Map Annexed to the 1947PeaceTreaty
Figure5-4 Map Accompanying Romania's l997 Notification to the United Nations of its
StraighBaselines
Figure5-5 Enlargementof theRelevant Part othe Map AccompanyingRomania's 1997
NotificationotheUnited Nations of its Straight Baselines
lFigure 5-6 Map134Annexedto the 1949Proc2sVerbal
Figure 5-7 Sketch Includedin the 1949Proc2s VerbalofBorder Point 1438
Figure 5-8 Sketch IncIudedin the1949 ProcBs Verbal of Border Point 1439 *
Figure 5-9 Points1437, 1438 and 1439, theRomanian and Soviet Territorial Seaand the
Line Agreedin the 1949 Proc2s Verbalas Depicted onMap 134
Figure 5-10 The Breadth of the Territorial 6nmand 12nm TerritorialSea, Claimed by
RomaniaPre- and Post- 195111 956
Figure 5-11 The Territorial Seas oftheSoviet Union and Romania (as of 1961) and the
H~ghSeas
Figure 5-12 The Territoria'eaof the Soviet Union andthe High Seas
Figure 5-13 Map Accompanying Romania's 1997 Notification tothe United Nations of its
Straight Baselines
Figure 5-14 Enlargement of the Relevant part othe Map Accompanying Romania's 1997
Notification to the United Nationsof its Straight Baselines
Figure 5-15 Map134Annexed tothe 1949ProcBsVerbal
Figure 5-16 The Two Sectors of Romania'sAlleged Maritime Boundary
Figure 7-1 Provisional EquidistanceLine
Figure 8-1 The General Direction oftheCoasts of UkraineandRomania
Figure8-2 Location of Serpents'Island
Figure 8-3 ProjectionofUkraine'sCoastal Fronts
Figure 8-4 Projection of Romania'sCoastal Front
Figure8-5 Romania'sVersion of the Relevant Coasts
Figure8-6 TheParties'CoastalFsonts inthe North-West BlackSea
Figure 8-7 Relevant Ukrainian and RomanianLicences in Relationto the Parties' Claim
Lines
~i~ure 8-8 Relevant Extract of "Concession, Pipelin& Fiel dutline Map" Produced by
Petsoconsultants,June1998
??igurk8-9 Locations ofIllegal Fishing Incidents Involvthe Ukrainian Border Guard
Figure 8-10 EEZlContinencalShelfBoundaryAgreedbyU.S.S.R.and Turkey Figure8-1 l EEZlContinentalShelfBoundaryAgreedbyBulgaria andTurk y
Figure9-1 Ukraine'sDelimitationProposal in Negotiations
Figure 9-lA Ukraine'sDelimitation Proposal
Figure 9-1B The Coastal RatioLine
l
1 Figure9-1C Ukraine'sDelimitation Proposalin Negotiations
Figure9-2 Provisional EquidistanceLine
Figure 9-3 Ukraine'sDelimitation
Figure 10-1 Ukrainian CoastEliminated by Romania
Figure10-2 Proportianality Test LIS% OFPHOTOGRAPHS
PhotographA AerialView of Serpents'Islafrom theNortheast
Photograph B Aerial View ofSerpentsIsland fromthe West
PhotographC SurfaceView of SerpentIslandfrom theNorth
PhotographD TheLighthouse Complexin 2002 before Reconstruction
PhotographE The Lighthouse Complex in 200afteReconstruction
Photograph F The StationarBerthon Serpents'Island: DockingProcedures
PhotographG The StationarBerthon Serpents'IslanDistant View
PhotographH ResidentiaAccommodationson Serpents'Island
PhotographI Aval BankL:. . ,..-I.
- c ' ,,.-. .#;
..,l c CHAPTER 1
THEBACKGROUND ANDSCOPE OF THE DISPUTE
Section1. Introduction
1.1 This Counter-Memorial isfiled by Ukrainein accordance with the Order of the Court
dated 19 November 2004 fixing 19 May 2006 as the time-limit for the submission of
Ukraine'sCounter-Memorial.
l.2 The disputeof which theCourt has been seized by Romaniaconcerns thedelimitation
of the continentalshelfareasand exclusiveeconomic zones ofUkraine and Romania in the
Black Sea.There is, of course,no dispute between the Partiesas to the general geographical
configuration ofthe Black Sea, Romania has included as Figure 1in its Memorial,atpage 8,
a map giving a "General View of the Black Sea", and for convenience Ukraine includes as
Figure 1-1 to this Memorial an equivalentmap of the generalBlackSea area.
1.3 The dispute between the Parties is arelativelstraightforwarddispute about the way
in which the maritimeboundaryshould be delimited in accordance with the applicablerules
ofinternationallaw.
1.4 It may assist the Court to emphasise at the very outset not only what this case is
about, name1y the delimitation of the Ukraine-Romania continentalshelf and EEZ maritime
boundary, but also whatit inot about. It is, particular, not abo-t
(i) any matters of territorial title: sovereiover the relevant coasts and inland areas,
and over relevant islands, is not in dispute between the Parties, and Romania
acknowledgesthat"[t] here areno outstandingterritoriacllaims"';
I
Romania'Ms emorial(hereafter"RM"),pa1.10,2*sentence. the delimitation of the territorial sea: this follows from the terms in which the Pasties
(ii)
agreed to this reference to the Court as set out in paragraph4(h) of the 1994Ukraine-
Romania Exchangeof Letters (the "1997Exchangeof Letters"), which refers only to
the continentalshelf and EEZ, andis expresslyacceptedby Romania2;
the rights and wrongs of historical events: the present legal and factual circumstances
(iii)
regarding geegraphy andterritorial title arenot in dspute between the Parties, and are
therefore "givens" on the basis of which the Court is required to determine the
maritime boundaries in question;
(iv) the valichtyor otherwise of past agreements concluded by Romania with the USSR or
with Ukraine: Romania has expressly disavowed anyintention of seehng to challenge
past agreementsor other transactions: " ...before this Court Romania does not ask for
the reversa) of prior transactions, whatever their merits or auspicesw3.
1.5 One aspect of the coastal geography which has an impact upon the delimitation is
Serpents'Island. The proper Ukrainian name of this island, in accordance with the United
Nations Conference on the Standardization of Geographical Names, is Zmiin y i Island.
However, for purposes of this case, Ukrain e illuse its English denomination: Serpents'
Island. Three points must be made straight away about Serpents' Island and itssignificance
for this case.
1.6 As is the case in other territorial respects, Serpents'Island raises no question of
territorial title. Romania accepts that Serpents' Island is under Ukrainian sovereignty,
l
recognisingthat it "nowbelongs to Ukrainen4 and that "Romania ... accepted by thesetreaties
l l m
that serpents'Island belongs to Ukraineu5I.t is moreoverincorrect to suggest, as Romania
l
does,lthat Serpents'Island is an unimportant and insignificant feature and is therefore to be
I
l
RM,para. 1.12("Itshouldbe emphasised that theboundarybetween the territorialseas of the Parises
not included inthe Applicationpresented to the Court, whichonly concerns the delimitationof the
l Parties'continentalshelf and exclusiveeconomizone"),and para.7.19 ("The question of territorialsea
l deIimitationis not before the Court").The text of the1997 Exchangeof Letters (in the original
1 - Romanianand UkrainianlanguagesandEnglishtranslation)is attached as Annex1, Vol.2.
3 RM,para. 5.19.
4 RM, para.1.2.
5 RM, pwa. 4.31s)eealsoparas.4.34,5.16and 5.18.disregarded (see further Chapter 7). Serpents'Island has for a long time been much more than
an uninteresting and inconsequential island outcrop in the Black Sea. Finally, while Serpents'
Island has an impact upon the construction of a correctlydelimited maritime boundary, that
impact is not the central issue in this case. In arriving at an equitable solution for the
delimitation of the Ukraine-Romaniacontinental shelf and EEZ, the configuration and other
circumstances of a much larger area of the Black Sea than that in the immediate vicinity of
Serpents' Island arerelevant.
1.7 The precise extent of thatrelevant "larga rea of theBlack Sea" isa matter on which
the Parties have different views.Romania has set out its views in paragraphs 9.26-9.29of its
Memorial, and has illustrated this approach of the relevant delimitation area in Figure 12 at
page 140of itsMemorial. Ukraine's differing viewsare set out in detail laterin this Counter-
Memorial (see Chapter 3 below), but at the outset Ukraine notes that it disagrees with
Romania'sdelineation of the relevant area intwo major respects:
Romania seeks to exclude from the relevant area a large area inthe northern part of
(i)
theBlack Sea, to the north of a linejoining Cape Tarkhankut and a point referred to
by Romania as Point S (atthe mouth of the Dniester River), whereas thatarea - and
the coast abutting to it-is very relevant to the achievement of an equitable solution
and has tobe included in the relevant area;and
(ii) Romania seeks to include in therelevant area an area at the south east corner of the
area delineated on Figure 12, whereas that area is in .no way relevant to Romania's
maritime entitlements:it lies beyond anymaritime area claimed by Romania, and it
relates to thdelimitation already effectedbetween the USSR andTurkey in 1978and
which is now effective as between Ukraine and Turkey. As willbe explained (see
Chapter 31, thecorrect closing line ofthe relevant area in thissoutheastern sector is a
line drawn from Cape Sarych totheUkraine-Romania-Turkey hi-point.Section 2. TheStructureofUkraine'sCounter-Memorial
1.8 Ukraine'sCounter-Memorial comprises 11 chapters including this introductory
Chapter.
1.9 Chapter 2 dscusses the basis ofthe Court'sjurisdiction in this case based on the 1997
Treaty on Relations of Good Neighbourliness and Cooperation (the "1997 Treaty", also
called the "Additional Agreement" in Romania's Mern~rial)~and the 1997 Exchange of
Letters and the 2003 Treaty on the Ukrainian-Romanian State Border Regime (the "2003
Treaty")'.
1.10 In Chapter 3, Ukraine will set out the relevant geographic facts. The coastal
geographyof the parties abuttingthe area to bedelimited is obviously of prime importance in
any case of maritime delimitation. The need for a comprehensive discussion of the
geographic facts is necessary not sirnply for this reason, butalso be~ause of the manner in
which Romania has attempted to refashion geography in its Memorial by unjustifiably
elimihIting a large segment of Ukraine's relevant coast. After reviewing the relevant
geogiaphic details, Chapter 3 will also addressthe identification of the "relevantareat1in the
case.
1.11 Chapter 4 will then explain why the delimitation methodology advanced by Romania
is erroneous and artificiaand does not even begin to reflect the applicable rules of law or
geographic facts, and thus does not produce an equitable result. As part of thisdiscussion,
Ukraine will also address Romania's irrelevantargument that the fact that thBlack Sea is an
"enclosed sea" has a bearing on the method of delimitation in this case and Romania's
arguments based on so-calIedState practice.
!
1.12 1 Chapter 5 deals with the diplomatic history of the dispute, including thenegotiations
conducted between the Soviet Union and Romania prior to Ukraine'sindependence. As part
of its:discussionof these events, Romania has introduced a selectiveand self-serving version
6 , Annex2, Vol.2.
7 Annex 3, Vol2.of certain historical elements which, while not relevant to the present case, does need to be
corrected as amatter of principle and for the sake of therecord.
1.13 Romania also argues that a maritime boundary around Serpents'Island was agreed
with the Soviet Union and is now binding on Ukraine. Chapter 5 wiEIdemonstrate that this is
a fictitious argumentand that the diplomatic negotiations have always proceeded on the basis
that delimitationof the continentalshelf (and theexclusive economiczone)south and west of
Serpents'Islandremains to beagreed.
1.14 Chapter 6 then turns to the applicable law. In this connection, Ukraine will first
address the 1997 Treatyand the 1997 Exchange of Letters, which form the jurisdictional
basis for the case, and the five so-called "principles" set outin paragraph 4(h) of the 1997
Exchange of Letters, which Romania has fundamentally misinterpreted. Ukraine will also
demonstrate that there is no previous agreement on delimitation within the meaning of
Articles 74(4) and 83(4) of the 1982 Convention.Chapter 6 then takes up the question of the
principlesand ruIes of international law governingmaritime delimitation relevantto the case
as those principles have been deveIoped in the jurisprudence of the Court and arbitral
tribunals.
l.l5 Chapter7 will then discuss the construction of theprovisional equidistance line as the
first step in the delimitation process based on the "equitable principles/relevant
circumstances"rule. Contrary to Romania's submissions, it is apparent thatthe provisional
equidistance line must be a line which is equidistant from the nearest paints on the baselines
of each of the Parties from which the breadth of their territorial seasismeasured,including
the relevant mainland coasts of the Parties and Serpents' Island, which is unquestionably a
full-fledged island,not a "rock", within the meaning of Article 121 of the Law of the Sea
Convention.
l.16 It Jsclear that the determination of anequitable delimitation of the continental shelves
and exclusive economic zones of the Parties is a function of the relevant circumstances
characterisingthe area subject to delimitation. Chapter8 discusses the relevant circumstances
in this case and the weight to be attributed to such circumstances. The key relevant
circumstancesthat Chapter 8 will address areas follows: (i)the geographic facts, including
the relevantcoastsof the Parties abutting the area to be delimited,and the presence, location,history and importance of Serpents'Island,(ii) State activitiesthatUkraine has carried out
within the relevant area thatmust be taken into account in achieving an equitable result, and
(iii) the presence of third Statto thesouth ofthe area subject todelimitation.
1.27 In Chapter 9, Ukraine will set out its own deIisnItation line which is based on a
balancing up of the facts and circumstances of the case in theTightof the applicable law, and
on the corresponding need to adjust the provisional equidistance line in order to achieve an
equitable result.
1.18 InChapter 10, Ukrainewill then testthe equitablenessof its own position in order to
demonstrate why that position achieves an equitable solution, and will show why the
Romanian claim faiIs to satisfy the test of proportionality and disregards other equitable
principles that havebeenpreviously identified by the Court.
1.19 Chapterl l of Ukraine'sCounter-Memorjal ends with a brief summary of the case
pursuant to the Court'sPractice Direction No. 11.Ukraine'sSubmissions then follow.
1.20 The Counter-Memorial isaccompaniedby 4 volumesof documentary annexes which
are annexedhereto. CHAPTER2
THECOURT'SJURISDTCTIQN
2.1 Ininstituting theseproceedings by anApplication filedin the Registry ofthe Courton
16September2004,Romania has based the jurisdictionof the Court on paragraph4(h)of the
l997 ExchangeofLetters, taken together with Article 36(1)of the Statute oftheCourt.
2.2 Sufficeitto recallat theoutset thatArticle 36(1) of the Statuteprovidesthat the Court
has jurisdiction overall cases referredto it by agreement of the partiesand over all matters
special1yprovidedfor in treaties in force.
2.3 The 1997Exchange of Letters was concluded pursuant to Article 2 of the 1997Treaty
andappendetd o thatTreaty. Article 2, paragraph2 of the 1997Treaty provided that:
"The Contracting Parties shall conclude a separate Treaty on the regime of the
boundary between the two states and shall settle the problem of the delimitation of
their continental shelf and of economicexclusive zones in the Black Sea on the basis
of the principles and procedures agreed upon by an exchange of letters between the
ministers of foreign affairs, which shall take place sirnultaneously with the signature
of thisTreaty.Theunderstandings included inthisexchangeof letters shall enter into
force simultaneousIywith entryintoforce of thisTreaty"'.
2.4 According to paragraph 4 of the 1997Exchange of Letters, the two Governments had
undertaken to negotiatea delimitation agreement on the basisof "principlesand procedures"
enumerated therein. Thus, various principles were set out in sub-paragraph sa) to (e),and
sub-paragraph (f) established a moratorium on the exploitation of mineral resources, while
sub-paragraph(g) stipulated that the negotiations othe delimitation were to begin as soon as
possible but no later than three months after the entry into force ofthe 1997 Treaty. Sub-
paragraph (h) then provided that, should the negotiations not resultin the conclusion of an
agreement within two years, the problem of delimitation would be brought before the
International Courtof Justice at the requestof either of the Parties, provided ththe separate
Treaty on the regme of the border betweenthe two States had entered into force.
1
Foracopyof theE997 Treatysee Annex2,Vol. 2.2.5 Thejurisdiction of the Courtunder this provisionwas thus made dependent upon three
conditions - not only two "preconditions" asstated incorrectly in the Romanian Memorialz.
Thoseconditions wereas follows:
1) The entry into force of the X997Exchangeof Letters, which itself depended upon the
entryintoforce ofthe 1997Treaty;
The absence of conclusionof a delimitation agreementafter two years of negotiations;
2)
and
3) The entry into force of the 2003 Treaty on the Ukrainian-Romanian State Border
. Regime.
2.6 The 1997 Treaty and the associated 1997 Exchange of Letters entered into force on
22 October 1997. The delimitation negotiations, which began in January 1998 and were
allowed substantially more time than the anticipated two-year period, did not result in the
conclusion of any agreement. The Treaty on the Ukrainian-Romanian StateBorder Regme,
signehon 17June 2003, entered intoforce on 27 May 2004. Therefore, the three conditions
l
for the Court'sjurisdictionwere satisfied at the time of the filing of the Application, and the
Court obviouslyhas jurisdictionto decidethiscase.
2.7 However, theCourt's jurisdiction in this case is limited to what Ukraine and Romania
have agreedto refer to theCourt.
2.8 The two States have defined the subject-matterand scope of the case to bedecided by
the Court as concerning "theproblem of the delimitation of their continental shelf and of
exclusiveeconomic zones in the Black Sea" (as stated in Article 2, paragraph 2 ofthe 1997
Treaty), or "the problem of delimitation of the continental shelf and thexclusive economic
zones" (as indicated in paragraph4 (h)of the 1997Exchange of Letters).
2.9 Two main consequence rn~e from the limited character of the jurisdiction sonfemd
upon theCourt in thepresentcase.
2 M, para.1.6.2.10 First, the Court has not been grantedjurisdiction to decide any questionsoutside the
problem of maritime delimitation. In particular, the Court has no jurisdiction to decide any
question of title to or status of a territory, notably an insular territory3.The Parties agreed
neither to ask the Court to decide upon historical events and past actions undertaken by
Romania or the Soviet Union4, nor to adjudicate internal matters such as freedom of
information'. Consequently, Ukraine will not deal at any length with such questions in this
Counter-Memorial, since the Romanian allegations concerning those questions and their
possible rebuttal by Ukrainein no way fall within thejurisdiction of the Court in the present
case, and have beenadvancedbyRomaniaforpurely prejudicial purposes.
2.11 The second consequence arising from the limited character of the jurisdiction
conferred upon the Court is that the Court has been given jurisdiction only to delimit the
continental shelf and the exdusive economic zones between the two States. Ithasnot been
givenjurisdiction to delimit other maritime zones pertaining to either of the Parties, and in
particulartheir respectiveterritorialseas.
2.12 From this point of view, the situation of the Court in this case,muraris murandis, is
comparable to that of the 1977 Anglo-French Court of Arbitration entrusted with the
delimitation of the continental shelf in the English Channel and the Atlantic Western
Approaches. The Court of Arbitration did not find itself empowered, under the terms of the
Arbitration Agreement, to draw a delimitation line between the Channel Islands archipeIago
and the French coasts of Normandy andBrittany, because the line in that area would have
been acontinental shelfboundary for one party and a territorial sea boundary for the other. As
a matter of fact, from 1971 onwards France claimed a 12-mile territorialsea, while at that
time the breadth of theterritorial waters around Jersey and Guernsey was still 3 miles with a
fishing zone of up to twelve miles! Thus, the Court of Arbitrationhad to underline that its
mandate was strictlyconfined to the drawing of acontinental shelf boundary. It stated:
3 Inthis respect,many aspectof theRomanian Memorial deal withquestions not properlyrelateto
maritime delimitation.See for numerousexamples:RM,para10.12-10.131.
4 See,inparticulaRM, paras5.1-5.18.
5 See RM, para.10.10.
6 Case concerning theDelinlitatioofthe ContinentaESheEfbetween the United Kingdom of Great
Britain and Northern Ireland, anthe French Republic, Decisionof30 June1977, U.N.R.I.A.A.,
Vol. XVIII,pp.21-24,paras.13-20. "Thetaskentrusted to the Court by Article 211) of the Arbitration Agreement is to
decide 'whatis the course of theboundary(or boundaries) between theportions of the
continental shelf appertaining to the United Kingdom and the ChannelIslandsandto
the French Republict within the arbitration area. The preamble to the Agreement
likewise speaks of differences 'between the two Governments concerning the
delimitation of the portion of the continental shelf .. appertaining toeach of them
which could not be settled by negotiation'.It is, therefore, clear that the competence
conferred on the Court by Article 2(1) of the Agreement relates specifically to the
delimitation in the arbitration area of the boundary of the continental shelf. ... It
follows, in the opinion of the Court, that the Arbitration Agreement does not confer
upon it any competence to settle differences between the Parties regarding the
boundary of their respective zones of territorial sea or of their respective fishery
zones.. ."'.
2.13 Accordngly, in thiscase, the Court'sdelimitation has to begin at the outer limit othe
territorialwatersof the two States, because of the legal definition of the two categories of
zonesinvolved. As a matter of fact, "[ilhe continental shelfof a coastal State comprises the
sea-bed and subsoil of submarine areas that extend beyond its territorial seaTL8 , hile the
exclusive economic zone (EEZ) is defined as "anarea beyond and adjacent tothe rerrirorial
2.14 Besides, in a note verbale from the Ministry of Foreign Affairs of Ukraine to the
hhnistry of Foreign Affairs of Romania dated 18 October 2002, it was made perfect1 y clear
that, whenthe 1997 Exchange ofLetters established a link between thepotential submission
to the ICJ of theissue of maritime delimitation, on the one hand,and the 1997Treaty on the
other hand, itwas because "from thetechnical point of view, this document [the 1997Treaty]
should legally fix thelast joint point of Ukrainian-Romanian State border inthe territoriasea
of theBlack Sea, which shall become the initial point of the delimitation of the continental
shelfandthe exclusive economiczones"lD.
2.15 The same approach is apparently adopted by Romania in its Memorial, when it
recognizes that "the point where the outer limits of the territorial seas appertaining to
Romania and Ukraine intersect ...constitutes the starting point of the delimitation line"''in
the presentcase.
7
6 t Ibid ..21,para.13.
Accordingtothefirstsentenceof Artic74 ofthe1982UnitedNationsConventionon theLawof the
9 Sea(emphasisadded).
10 Article55 of theUnitedNationsConventionotheLawof the Sea(emphasisadded).
1I Noteverbaleno72122-431-2399 ,nnex 4,Vol.2.
RM,para. 9.3. 2.16 However, Romania then wrongly considers that there is an "initial segment of the
boundary separating the Romanian exclusiveeconomic zone and continental shelf from the
Ukrainian tenitorial waters around Serpents'Island" which was allegedly established by
previousagreements, and which the Courtis asked to "~onfinn"'~A . sa matter of fact, this is
simplyincorrect13.At this stage, and forthe purposeof the presentChapter, sufficeit to note
that such a position is certainly not in accordance with what Ukraine andRomania have
agreed torefer totheCourt,and is therefore beyond the Courts' jurisdiction14.
2.17 The jurisdiction of the Court being restricted to the delimitation of the areas of
continental shelfand the exclusive economic zones of the Parties, the Court's task cannot
include the drawingof a lineseparatingothermaritimezones, eitherin full orin part.The line
to be drawn by the Court shall be a line dividing exclusively areas of continental shelf and
EEZ.
2.18 The Court is thusexclude from drawing a boundary line inany maritime area where
the continentalshelf and exclusive economic zone of one of the Parties would be adjacent to
the territorial sea of the other Party,the hypothesis that such an area could really exist in
the regionconcernedby the present delimitation - quod non. The reasonfor that is that sucha
Iine would divide the territorial sea of oneStatefrom the continental shelf and exclusive
economic zone of the other State, and consequently it would not be the exclusively
continentalshelf/EEZ delimitation which theCourt isasked todraw in the present case.
2.19 Thatis why,for example,as alreadymentionedI5,the Courthas no jurisdictionfor the
drawing ofa delimitation lineas claimed by Romania between the so-called points F and X
along a 12-nautical mile segment of arc around Serpents' Island, since that portion of Iine
would delimit Ukraine'sterritorial sea and Romania'salleged areas of continental shelf and
EEZ. Incidentally,that situatioisreflected in Figure30 of the Romanian Memorial in which
different colours are used to hfferentiate thareas of territorialsea from the othermaritime
zones16.Nevertheless, Romania contradictorily asserts, on the preceding page of the
i 12
13 RM,para.11.62.
I4 See belowChapter5.
15 Seealso para.2.1below.
16 Seepara.2.16above.
RM, p. 224.Memorial, that "the maritime boundary between the continental shelf and the exclusive
ec~aomic zones ofRomania and Ukraineruns in Sector l fromPoint F ...up to Point X"''.
That Romanianclaim is alsoin full contradiction with,whatis said elsewhere in theMemorial
concerning "the initial segment of the boundaryseparating the Romanianexclusiveeconomic
zone and continental shelf from the Ukrainian territorialwaters around Serpents' Island
betweenPoints F and X"'S.
2.20 Those contradictory statements in the Memorial are in themselves an indication of
Romania'sindecision anduncertaintyas to thejurisdiction of thCourt to drawa dividing line
in that particulaarea.
2.21 Therefore,in this case, the Court is only asked to draw a single maritime boundary
delimitating the areas of continental shelf and the exclusive economic zones pertaining
respectivelyto Ukraine and Romaniain the Black Sea.
17
18 RM,para.i 1.7(emphasisadded).
RM, para.11.62(emphasisadded). CHAPTER 3
TEPE GEOGRAPHY OFTHE RELEVANTAREA
Section 1. TheGeographyof the Black Sea
3.1 The areas of continentalshelfand exclusive economic zone in disputein this case are
located in the northwestern partothe Black Sea.
3.2 The Black Sea isa sea of420,300 squarekilometres1(See Figure 1-1).It is connected
to the Mediterranean Sea by the Bosporus and to the Sea of Azov by the Kerchens'kaStrait.
Whilst Romania purports to find significance in the fact that the BIackSea isan "enclosed
sea" for purposes of the delimitation, this is irrelevanas will be discussed in Chapter 4
below. Nonetheless, as in any delimitation casethepresence of third States in the vicinity of
the area subject to delimitation between Ukraine and Romania may be a relevant factor in
determining the extent or prolongationof the maritime boundary, but it is not a relevant factor
that has a bearinon the method or methodsof delimitationthat produce anequitable result as
between Ukraineand Romania.
3.3 Six countries border the Black Sea: other than Ukraine and Romania, these are
Turkey, Bulgaria, Russia and Georgia. All the Black Sea littoral Statehave claimed a 12-
nauticalmile territorial sea and 200 nauticmile EEZ.No point on the coast of any riparian
Stateis morethan409 nautical miles fromthe coast of anotherrigarian State.
3.4 The southern coast of the Black Sea is relatively uncomplicated and comprises the
northern littoral of Turkey. This coastline runs in aneast-west direction, stretching in the west
from the Turkish-Bulgarian border, located tothenorth-west of the Bosporus, to the Turkish-
Georgianborder in the east.
3.5 The western coast of the Black Sea follows a general southwest-northeastdirection
from the Turkish-Bulgarian border up until a point nearOdesa, an important Ukrainian city
l SailingDirectionoJtheBlackSea and Sea oAzovfor Watersof UkraineNo. 101,Department of
Transporand Communicationsof Ukraine, Ky2005,p.33,Annex 5, Vol.2. withover one million inhabitants.The western coast of the Black Sea includes the entirety of
the coastlinesof Bulgaria and Romania, and part of the Ukrainian Black Sea coast.
3.6 The Ukrainian Black Sea coast then turnstowards the east, and continues until the
Karkinit'skaGulf. This part of the Ukrainian coast faces in a general southerly direction
before reaching the CrimeanPeninsula.
3.7 The Crimean Peninsula, which isUkrainian territory, is a prominent geographical
feature in the northern part of the Black Sea. 'It separates, to the west, that part of the
Ukrainiancoast which is relevant to the delimitation with Romania from areas lying to the
east, bordering the Sea of Azov, which are relevant in the context of an eventual maritime
delimitation with Russia.
3.8 The eastern coast of the Black Sea follows a northwest-southcast direction and is
divided between Russia and Georgia before meeting the eastern terminus of the Turkish
coastline, which borders Georgiajust south of the Georgiancityof Baturni.
l
Section2. TheRelevantCoastsof the Parties
3.9 It follows from the jurisprudence of the Court and of international arbitral tribunals
that the coasts tobe regarded as relevant for delimitation purposes are those which generate a
Iegal entitlement to continental shelf and exclusive economic zone rightswhich overlap and
intersect with each other. Frequently, the relevant coasts are also defined as the coastal fronts
or faqades of the partiesabutting the reIevant maritime area.
! 3,10 In other words, the initialstep in the examination of the coastal geography is to
I
identify the coasts of the Parties which generate continental shelf and exclusive economic
rights which project into the area subject to delimitation. It is these coasts which are the
"relevant coasts" for purposesof effecting an equitable delimitation. As the Court stated in the
Tunisia-Li bayae:
"Itshould firstbe recalled thatexclusive rights over submarine areas belong to the
coastal State.The geographic correlation between coast and submerged areas off the
coast isthe basis of the coastal State'slegal titleAsthe Courtexplained inthe North Sea Continenta Shelf cases the continental:shelf is a legal concept in which 'the
principleis applied thatthe landdominates the sea"'=.
I TheCourtthen added:
"Ashas been explained in connection with the concept of natural prolongation, the
coast of the territory ofthe State is the decisive factor for title to submarineareas
adjacent to itAdjacencyof the sea-bed tothe territory of the coastalState has been
1
the paramount criterion for determining the legal status of the submerged areas, as
distinctfrom their delimitation, without regard to the various elements which have
become significant for theextensionof these areas in the process of the legaevolution
~ of therules of international lawM3.
And the Courtconcluded:
"The coast of each of the Parties, therefore, constitutethestarting line from which
onehas to secout in order toascertainhow far the maritime areas appertaining to each
of them extend in a seaward direction,as well as in relationto neighbouring States
situatedeither in an adjacent or oppositepositionn4.
3.11 In itsMemorial, Romaniahas provided only the briefest description othe coasts of
the Parties relevant tothe delimitation of their respective continental shelveand exclusive
economiczones5.Clearly,Romania is sensitiveta a proper analysis of the coastal geography,
whichis not in Romania'sfavour, andits Memorial reflects thissensitivity.
3.12 Moreover,in what brief description of the relevant coasts that Romaniadoes provide,
the RomanianMemoriaI presents a very selecrive and self-serving treatmentof the respective
coastsof the two States. Thus,while Romania considersas relevant the entire Romanian coast
from the border withUkraine in the north to theborder with Bulgaria in the south6,and even
double counts part of that coast, it is intent on eliminating as much as possible of the
Ukrainian coast abutting the area where the delimitation falls to take place. Accordingly,
Romaniajumps immedately to a comparisonof itsentireBlack Sea coast with only a partial
section of Ukraine's coast abutting the same part of that sea in order to minimize the
2
3 ContinentShelf(TunisidLi AbaanJamahiriya)Judgmenr,I.CJ.Reports1982p.61, para73.
4 Ibid.
Ibid .,61, para. 74, cited with approval in CotirinenmlS(LibyanArab JnmrahiriydMalta),
5 Judgmenl,1.C.JReports1985,p.40,para. 47.
6 See,forexample,RM, para.2.4.
RM, paras9.20and 9.23.substantial disparity that exists in reality, andas matter of geographicfact, betwthelength
of thecoastal frontsoftheParties borderingthe area to bedelimited7.
3.13 By considering asirrelevant largestretchesofUkraine'scoast which are situatednorth
of themouth of theDniester River on the western side of the Black Sea (labelled "PointS" by
Romania on its Figure 11 at page 131of its Memorial), and virtuallyall of the Ukrainian
south-facing coast between that river andCape TarkhankutB,Romania not only gives a false
picture of thegeography of the relevant area, but also completelydistorts thenotion of the
relevant coasts of thePartieswhich generate maritime entitlements in the area tbedelimited.
Tnshort,Romania refashionsgeography.
3.14 In order to correctthis arbitraryand unsupportable treatment of the relevant coasts,
Ukraine hereafter will provide a complete description of the relevantcoastal geography and
geographical features which have a key be&ng on the determination of an equitable
delimitationline between the Parties.
A, Ukraine'sCoast
(i) The Continental Coasts of Ukraine
3.15 The Ukrainian Black Sea coast is extensive and comprises the entire northwestern
coastline of theBlack Sea. It stretches northeastward from the mouth of the Danube river,
where the border with Romania is located, along the south-facing littoral east othe cityof
Odesa, until it turns to the south, encompassing the Crimean Peninsula, terminating at
Ukraine's border with Russia inthe Sea of Azov.
3.16 For purposes of delimitation withRomania, the relevant coast of Ukraineis comprised
of three distinct sectors each of which generates an entitlement to continental shelf and
exclusive economic zone rights in the area subject to delimitation. These can be seen on
Figure 3-1.
7
a Ibid.,paras.9.24-9.25.
ibid., para.9.21.BLA CK SEA
RelevantUkrainiaCosrt
Figu3-13.17 As Figure3- 1 shows, the first sector extends fromthe State border with Romania until
a point locatedjust north of the city of Odesa. South of Odesa is the city of Illichivs'kwhich
deserves particular mention since it is the largestindustrial port in the Black Sea. This stretch
of coast follows a northeasterly trend and assumes the same general direction chat
characterizes the Romaniancoast. The length of this stretch of coast is 253 kilometres when
takinginto account the actual coastline. If, instead, one adopts a coastal front measured in
accordance with the general direction of the coast, this part of Ukraine's relevant coast is
approximately 173kilometres in length.
3.18 North of Odesa, theUkrainian coast turns to theeast and comprises the south-facing
littoral alongthe northwestern part of the Black Sea facing the area subject to delimitation
with Romania. This is the second sector of Ukraine'scoast relevant for purposes of this case
which is shown on Figure 3-1. There is an important town in this sector, the city of Mykolaiv
where a large ship-building facilityis situated.There are also two significant bays along this
portion of Ukraine'scoast -the Dniprovs'kyiFirth and the Yahorlyts'kaGulf - both of which
cut into the general direction of the coast. The Ukrainian coast then extends into the
Karhnics'ka Gulfto a point located east of the city of Skadovs'k,depicted on Figure 3-1. The
total length ofthis stretch of coast is some 380 kilometres. When measured according to its
general direction, Ukraine's south-facing coastal fitqade measures approximately
237 kilometres.
3.19 The third sector of Ukraine'scoast relevant to the delimitation comprises the western
coast of the Crimean Peninsula from the easternmost point of the Karlunits'kaGulf to Cape
Saryeh lying to the southeast of the city of Sevastopol'.This portion of Ukraine's coast is
characterized by the indentation created by the Karkinit'skaGulf and by the lesspronounced
Gulfof Kalamits'ka.The total length of this stretch of Ukraine" coast is some425 kilometres.
When measured as two straight linesreflectingthe general direction of thecoast as a whole,
this west-facing sector measures roughly 274 kilometres as also shown in Figure3-1.
3.20 The total length of the Ukrainian coastal front from the Romanian border to Cape
Sarych is thusapproximately 1,058hlometres takinginto account the sinuosityof the coast.
Measured in accordance with itsgeneral direction, Ukraine's coastal fa~adesmeasure some
684 kilometresin total.3.21 On 5 June1993U ,kraine adapteda systemof straight baselines, a depiction of which,
together with Romania'sstraight baselines,is provided at Figure 3-29. Ifone were to measure
Ukraine'scoast using Ukraine'sbaselines (both low-watermark and straight baselines, where
applicable), the total length of Ukraine's baselines between Romania's border with Ukraine
and CapeSarych would be some 664 kilometres.
3,22 As noted above, Romania has arbitrarily excluded from its determination of the
reIevant coasts a lengthypart of Ukraine'scoastline extenhng from the southern point of the
mouth of the river Dniester (labelled "Point S" by Romania) to Cape Tarkhankut on the
Crimean Peninsula''. Inother words, Romania simply disregards an important stretch of
Ukraine's relevant coast between the so-called "Point S" and Cape Tarkhankut, a relevant
coast which is some 630kilometres in length (see Figure 3-3).
3.23 Romania characterises this part of the Ulcraini coanst as "andogous to an interior
Ukrainian bay"", and arguesthat this sector of Ukraine's coast is neither adjacent to nor
opposite Romania's coast and that the maritime spacesto the north of the line Point S - Cape
TarWlankuttherefore "do not pertain to the area where the projectionsof the coasts of the two
Parties overlap and should not be taken into account in thedelimitation proces~"'~.
3.24 As illustrated onFigure 3-4, and as a matter of basic principles of the law of the sea,
Romania'sdescription of the relevant coasts is demonstrably wrong.The seaward extensions
of the Ukrainian coastalfronts, including the part of Ukraine'scoast located between "Point
S" and Cape Tarkhankut, converge in a southerly direction. In particular, it should be
emphasised that this entire south-facing coast generates, subject to delimitations with third
States, a 200 nautical mile continental shelflEEZ entitlement that extends well south of the
parallelof latitudeof the RomanianlBuigarianborder.Thus, the south-facing, central sector of
Ukraine's coastline is clearly relevant for the purposes of delimitation of the Parties'
continenta1 shelves and exclusive economic zones. Just as Ukraine'seast-facing coast lying
north of the UkraineJRomania land boundary and Ukraine's coast along the Crimean
9 Forthe relevanexrracfrom the ResolutionotheUkrainiancabinetsee Annex 6,Vol.2.
I0 SeeM, Figure l latp.137.
l I RM, para.9.21,
l2 RM, para.9.22.Romania's artificiclosingline linkin"PointS" and Cape Tarkhahkut issome 92
miles (172 km)long, far longthanany geographicdescription of a bunder Articl10of the1982
Lawof the Sea Convention.This underscorestcontrivednature of Romania'sclosingEine.BLA CK SEA
TheParties'StraightBaselinesBLA CK SEAProjectionofUkrsine'sCoastalFroafarPeninsula, the south-facingstretch of Ukraine'scoast alsogeneratescontinental shelfandEEZ
rights throughout the area to be delimited witRomania.
3.25 It therefore followsthat to exclude Ukraine'ssouth-facingcoast, as Romaniaattempts
to do, is completely unjustified. As notedabove, this portion of Ukraine'scoast generates
maritime entitlements projecting into the area subject to delimitation with Romania under
Articles55and 76 ofthe 1882Convention. As the Courtnoted in the 3unMayen case:
"The 'areaof overlappingclaims',defined in paragraph 18 above, between the two
lines representing the Parties'claims, is of obvious relevance to any case involving
opposed boundary claims. But maritime claimshave the particularfeature thatthere is
an area of overlappingentitlements, in the sense of overlap between the areas which
each State would have been able ta claim had it not beenfor the presence of the other
State; thiswas the basis of the principle of non-encroachmentenunciated in the North
Sea Continental Shelf cases (I.C.J. Reports 1969, p. 36, pan. 57; p. 53, para.
IOl{C)(1)).It isclear that in this case a true perspective on the relationship of the
opposing claims and the opposing entitlements is tobe gained by~0nsideri.n~ both the
area of overlappingclaimsand the areaof overlapping potential entitlement"I3.
3.26 In this connection, reference may also bemade to the Court's treatment of the relevant
coasts ofthe parties intheTunisia-Licb asaand in the GulfofMainecase.In Tunisia-Libya,
the Court had no hesitationin treating the entire Tunisian coast along the Gulfof Gabes as
partof the relevant coasts despite the fa- touse Romania'sterminologyappliedto the south-
facing coast of Ukraine - that theGulf of Gabes was "analogous to an interior [Tunisian]
bayHt4 S.imilarly,inGulf of Maine, the Chamber of the Court included Canada'scoast along
the Bay of Fundy as part of the relevant coasts and took that length of coast into account in
establishinganequitable boundary based, in past, on the marked difference inthe lengths of
the coasts of the parties'5It therefore follows that the Court's jurisprudencefully supports
treatingthe entire Ukrainiancoast abutting thenorthwest portion of the Black Sea as relevant
to the delimitation with Romania inthis case.
3.27 The Ukrainiancoast in the northwestern part of the Black Sea isalso of considerable
economic importance. Apart from the Danube DeIta, this sector of the Ukrainian coast
13 Maritime DelimitatiintheArea benveenGreenland andJan Mayen,Judgment,I.C.J.Reports1993,
p.64, para59.
IQ Contine~ztShelf{Tunisia/ ALlabJan ahiriyn),JudgmenLC.J.Repords1982,pp.61-62,para75
and p.91, para.131.
15
Delimitation ofthMaritime Boundary inshe Gulfoj Maine Area,Judgment,S.C.J. Repor1984,
p.336,para.221.incorporates the mouths of the riversDniester and Dnipro and a number of impbrtantcoastal
cities andports. These includethe majorregional capital of Odesa with a population of over
one million inhabitants, and the city of Sevastopol' with a population of some 378,000
inhabitants, along with other important ports such as Illichivs'k, Bilhorod Dnistrovs'ky,
Ochahv, Mykolaiv,Kherson, Skadovs'kand Yevpatoriiaon the CrimeanPeninsula.
3.28 These cities are depicted on Figure 3-5 along with the populations of the four
Ukrainian administrative regionswhich border this partof the BlackSea.The totalpopulation
of these coastaladministrativeregionsis in the order of6,600,000 representing some 15%of
Ukraine'stotal population. In other words,the social andeconomicimportance of this part of
Ukraine is commensuratewith the predominance of 'Ukrainein the area as reflected inthe
coastal geographycomprising Ukraine'sextensive coastline abutting the areaof delimitation.
(ii) TheGeographicalCharacteristics of Serpents' Island
3.29 Apartfrom the mainland coasts of Ukraine, the other salient geographical feature in
the relevant area appertaining to Ukraineis Serpents'Island. As noted in Chapter 1,there isno
dispute between the PartiesthatSerpents'Island forms part of the national territory of Ukraine
and is under Ukrainian sovereignty.
3.30 This sub-section deals with a description of Serpents' Island's physical and
geographical characteristics.The island's overallimportance and itslegal status under Article
121 ofthe Law of theSea Convention will be discussed in Chapter 7, Section 3.
3.31 Serpents' Island is situated in the northwestern portion af the Black Sea, some
E9 nautical miles due east and opposite Ukraine's mainland coast in the vicinity of the
boundary ofUkrainewith Romania".
3.32 With respect to Serpents' Island, Romania's Memorial exhibits a fundamentally
contradictory approach, On the one hand, it deals at great length with Serpents' Island's
history,its repute throughout the centuriesand the geopolitical roleithasplayed in the Black
Sea region. Chapter 10 of Romania'sMemorial devotes no less than 50 pages to the island,
16 SailinDirectionsoftheBlack Seaand Sea ofAzov forWafers ofUkraine,NO. 101, Department of
Transportand ComunicatlonsofUhcmineK, yiv2005,p.35, Annex 5, Vol.2.and thirty of the Annexes attached to Romania's Memorial are articles or book extracts
concerning Serpents' Island. Significantly, every single one of the maps contained in
Romania's Map Atlas identifies and depicts this island. Clearly, Serpents' Island is an
important feature and has beentreated as suchthroughout history.
3.33 Romania's Memorial itself contains several passages attesting to Serpents'Island's
importance.To cite afewnotable examples,Romania states the following:
0 "Chapter3 outlines the important histosical background, noting the strategic
significanceaccorded toSerpents' Island sinceatleast the 19th century ..."l'.
o "Due to its importance for security in this area, during the First World War,
Serpent'sIsland wasthe sceneof several war episodes, such as the bombingof
the lighthouse by German forces, its occupation by Russian soldiers and the
sinkingof aRussiantorpedo-carrierby Germanmines"".
e "The attention givenby theEuropeanpowers to themouths of the Danube (the
Danube delta) and to Serpents' Island ... is a proof of the geo-strategic
importance of these regions atthat time""".
o "DuringWorldWar11,Serpents'Islandhad a strategic role.On 22 June 1941it
entered under the rule of the Commandment of the Germanforcesin theBlack
Sea and was occupied by Germantroopsu2'.
4 On 23 May 1948, a proc2sverbal was 'hctually signedon Serpents'Island" by
the Deputy Foreign Minister of Romania and the First Secretaryof the Soviet
Embassy2'.
3.34 As will be seen, Romania's recognition of the historical, cultural, religious, strategic
and military significance of Serpents'Island is inevitable given its location off the Danube
Delta and the factthat itenjoys a well-documentedhistory and notoriety,
3.35 Despite these facts,Romania'sMemorial is at pains to arguethat Serpents'Island isno
more than a "rock"; in other words, that it is entitled simply to a 22 nautical mile belt of
territorialsea,but no continental shelf orexclusiveeconomic zone of its own.
17 RM,para. 1.17.
18 Ibid.,para3.15.
'' Ibid p.,ra3.19.
Ibid.,para.3.25.
21 Ibid.,para.3.29. 3.36 As will be shown in Chapter 7, Romania'sattempt to reduce Serpents'Island'sstatus to
that of a barren rock, so negligible that it should not have anyrole to play in the delimitation
of the continental shelf and exclusive economic zones between the Parties, cannot be
reconciled with the historic and geographical factsor with Romania's own evidence which
confirms the importance of the island. Serpents' Island's location, in close vicinity to and
opposite the Ukrainian mainland, its well-documented historyspanning a period of over one
thousand years, its strategicimportance and the unique attention itcommanded throughoutthe
centuries, clearly demonstrateits significance as an island. In addition, the evidence shows
that Serpents' Islandcan readily sustain human habitation and that it has an ampleand well-
documentedcapacity to sustain aneconomic life of itsown.
3.37 From above, Serpents' Island resembles a triangle, one of the angles of which is
1 elongated andcreates a capejutting out into the sea.The topographic map of Serpents'Island
i
l reproduced at Figure 3-6 shows the island'sphysical contours. On both sides of the narrowest
( '
, part of this capethere are broad and convenient bays, which are deepenough toenable vessels
l to moor. The Romanian author, R. I. Calinescu, in his 1931 monograph, recorded that
"Serpents'Island can be landed in3 places", adding in a footnote that "allships, small or big,
l will anchor atIeast 501x a1 ay fromthe island"22 T.he photographs reproduced as Photos A, B
and C in the following pages illustrate the island'sgeneralappearance from the air.
3.38 Serpents' Island is characterised by a hill in the middle of the island, the slopes of
l which lead down to the island's shores from which the shores of the island dope down
1
towards the sea. Viewed in silhouette the island therefore has the general shapeof a shallow
inverted cup. Photo A illustrates its general appearancewhen seen at sea level.
I .
1
I 3.39 Serpents' Island's coordinates are 45"1S1N 3O, 012'EuT . he island is615 metres long,
l
and 550 metres wide; its mean height above sea level is 37 metres, with a highest point of
41,3 metres above sea level.Ttstotal area is about 20 hectaresp4.
I 22 R.I.Calinescu, InsuSerpilor. Sckitn Munografic1931,p.2 (Annex RM 6).
l 23 SaiiingDirectiurasoffhe BlackSeaandSea ofAzov forWafersofUkraine,No. 101, Kiev,2005, p.35,
, Annex 5,Vol. 2.
24
See Resolution No. 197-XXII of Odesa Regional Counc~Idated 13 February 1998; Resolution
No. 841371C of the Executive Committeeof the OdesaOblastSoviet of Deputiesof Worhng People
dated 29 November 1965;ResoIutionNo. 149-XXIIIof Vitkovo Town Council dated22 November
i 2001; Resolution No. 167-XXIII-X of KiliaDistrict Council dated 27 November2001; ResolutjonAerialView of Serpents'IsIInam from the Northeast .-::. .SurfaceVofSerpenIsland fro~o6tI, 13.40 Contraryto Romania'sassertion that Serpents'Island possessesno natural water and is
entire1y dependent on external supplies25S ,erpents'Island has a smallbut sufficient supply of
fresh water. The existence of wells and cisterns was recorded by Romanian writers in 3925
and 1931. Writingin 1925,theRomanian author Popa-Lisseanumentioned two fresh water
wells located on Serpents' Island and recalled that the Roman historian Ammianus
Marcellinus had stated about the island: "Ibiet aquae sunt" (i.e., where there is also water),
thus indicating the presence of fresh drinking water,rather than salt waterz6.The same author
alsomentions theexistence of two water reservoirs,one of which was situated in the vicinity
of thetemple of Achilles.
3.41 In 2931, the Romanian writer CaIinescuZ7 rejectedthe view thatSerpents'Island had a
particularlydry climate, and instead noted a considerablerainfall28H. e also recorded the use
of rainwater, collected in fourreservoirs, for drinking and laundry purposes by the 10 or so
people living atthat time onthe island2'.
3.42 In 2003, specialists on an expedition from the Dnipropetrovsk geological survey
drilled three boreholes on Serpents'Island to a depth of 40-60 metres. Eachof them produced
fresh water. The approximate hourly flow is about 2 cubic metres from each borehole. The
water isusable after purification, and equipment has been installed for thatpurpose. The
capacity of the equipment coupled with the flow of water from the boreholes allows the
residents of theisland to obtain a sufficient volume of fresh water for their everyday needs3'.
As the 1925 and 1931 Romanian studies mentioned above show that, even before the
developmentof these boreholes, sufficientrainwaterwas available for the people who used
the island,and the existence of water storage reservoirs and cisterns on the island for many
years isconfirmed by a numberof ancientmaps showing the Iocationof reservoirs3'.
No. 393-XXITIof Odesa Regional Council dated27 December 2001; ResolutionNo. 3002-111of
25 VerkovnaRadaof Ukrainedated17January 2002 , nnex7,Vol.2.
26 RM, para.2.10.
G. Popa Lisseanu, RomanicaStudiiistorice,filologgi archeologicBucharest 1925,pp. 19-120,
Annex8, Vol. 2.
R.I. Calinescu, cit., 13(AnnexRM 6).
25 Ibid.
2g Ibid.,p.49.
30 "Information about reseaanhdrinkingundergroundwatersonZmiinyi Islandin2002-ZW", State
' Committeeof theNaturalResourcesofUkraine,Dniprope~uvsk,2004,Annex9,Vol.2.
31 1 R.1.Calinescuop. citAnnex10,Vol. 2.3.43 The lighthouse located on the island was built in 1838-1843 and has'always been
manned. It consists of a building of octagonal shape with arevolving glasslanternthat flashes
at regular A radio beacon is installed at the lighthouse and one lighthouse keeper
has traditionally Iived permanently on the The technical equipment of the lighthouse
is servicedby eight specialists.At present,management of thelighthouse is canied out by the
State Hydrographical Service of Ukraine which renovated the lighthouse complexin 2002-
2003. The coordinates of the lighthouse were frequent1y used to indicate Serpents'Island's
geographicalposition; thosecoordnates are 45" 15'19.00nNorthand30"12'15.5"East.
3.44 The geological composition and morphological structure of Serpents' Islandshows it
to be an inalienablepart of the large tectonicblock of the East European platform, asunken
part ofwhich forms the sheIf of the north-western Black Sea. At one time, some50,000 years
ago, SerpentstIsland was linked to what is now the Ukraine mainland, with which it has the
same geological origin.
3.45 Romania contends that Serpents'Island is a rock "in the geological sense" due to its
essentially rocky co~nposition~~ F.or effect,and in order to enhance its arguments, Romania
has reproduced in its Memorial some highly selective pictures of the island -such as, for
instance, Figures 15, 16 and 17 showing some rocky shores - which convey a misleading
image of itsphysical conditions.
3.46 Romania'sefforts to reduce Serpents' Island'sstatus to that ofa "rock" do not in any
event improve its legal position forthe maritime delimitation. Indeed, even ifSerpents'Island
was "rocky" in a purely geological sense, thiswould still not turn it into a "rock" in the legal
sense of Article 121 (3) of the Law of the Sea Convention. In pointof fact, in spite of its
modest size, Serpents' Island is unquestionably an island. As can be seen from the
photographs of Serpents'Island reproduced with this Counter-Memorial, in reality the island
bears no resemblance to the arid and inhospitablerock depicted by Romania in its Memorial.
The idand shown in these photographshas a large number of structures built on it, supports
32
Seethe Appendixto theletteof theUkraine'sNationalAcademyof Science, No. 1112of 30 March
2005, Annex 11,Vol.2 andthe BlackSeaand Sea ofRzov Sailing DireclionFourthedition1903,
33 Annex 12,Vol.2 andSeventhedition1931, Annex13, Vol.2.
34 BlackSeaSailingDirections1854,Annex 14,Vol.2.
RM, paras.10.12-10.27. - 25 -
considerable human and economic activity, has wells and cisterns for fresh water, and
vegetation.
3.47 Romania also suggests that theclimate on Serpents'Island isharsh. In realitydue to
the island'sproximity ta the coast, its climate resembles closy that of the nearby mainland.
In short, Serpents'Island is a significant geographicalfeature which is indisputablyan island,
supports humanhabitation and economic and other activities, and has figured prominently in
the history ofthe region.
B. Romania'sCoat
3.48 Compared to the length of the coastline of Ukraine,the Black Sea coast of Romania is
relatively short. Whereas the length of the Ukrainian coast abutting the relevantarea totals
approximately 1,058 kilometres, the total Romanian Biack Sea coast is only some 258
kilometreslong tahng into accountthe sinuosities ofthatcoast.
3.49 As can be seen onFigure 3-7, andas Romania itself ackno~ledges~~, theRomanian
coast comprises two segments. The southern part of the Romanian coast follows a northerly
direction from theBulgarian border,past Constanfa, until Cape Midia. The coast then turns to
the northeast and encompasses severallagoons, including Lake Razirn and Lake Sinoie.This
part of the Romaniancoast is approximately 185 hlometres long measured along the actual
coast.
3.50 The northernpart of the Romanian coast is characterisedby a promontory, theSacdin
Peninsula, which is essentially an uninhabited sand spit extending from the coast in a
southwesterly direction for several miIe~~~T.he length of Romania's northern stretch of coast
between the Sacalin Peninsula and the border with Ukraineis some 73 kilometres measured
accordng to thesinuosities of the coast.
3.5l Overall; the general directionof the Romanian coast follows a line trenlng from the
Bulgarian border in a northeasterly hrection towards Sulina,a Romanian town located near
the land boundary with Ukraine. The general direction of the Romanian coast is illustrated on
3s
36 See RM, paras2.4 and9.20.
See Figure4-1facingpage 38. the sketch map at Figure3-8 and,in contrast to Ukraine's coast,projects in essentiaIlya single
~
direction -southeastwards -as seen onFigure 3-9.
3.52 The total length of Romania's coast from itsborder with Bulgaria to the border with
Ukraine thus amountsto approximately 258 kilometres. When measured as a single coastaI
fapde, as depicted on Figure 3-8, the length of that fa~adeis roughly 185 kilometres.
3.53 For purposesof Romania'sconstruction of its claim line, Romania has used two base-
pointsonits coast3'.The firstis described byRomania as "theeastern end of the Sulinadyke".
The SuIina Dyke is a purely man-made feature which extendssome 4.5 kilometres into the
sea3'.As will be describedin the next Chapter,Romania'suse of this artificial structureas the
solebase-point for purposesof caIculating its proposedboundaryin thenorth has a significant
effecton the course ofitsclaim. The second base-point employed by Romania for itsclaim is
the tip ofthe Sacalin Peninsula. Figure 32 at page 228 of Romania'sMemorial illustrates the
pronounced effect that the SacaIin Peninsula has on a so-caIled "equidstance line" drawn
between Romania and the Crimean Peninsula as calculated by Romania without taking into
accountthe presence of Serpentstbland. Both the SulinaDyke and the Sacalin Peninsula can
be seenonFigure4-1 facingpage 38.
3.54 There is afurther notable feature of Romania's treatmentof what itconsiders to be its
relevant coasts. As has been noted, Romaniadivides its coast int0.a northern sector labelled
by Romania Sector 1 (adjacent coasts) and a southern sector labelled by Romania Sector 2
(opposite coasts)39 .n constructing its claim line, Romania has double counted a significant
part of its coastrepresented bythe northern sector ofthat coast.
3.55 For purposesof what Romania terms thepart of itsclaim line delimiting the "adjacent
coasts" of the Parties, Romania uses its northern,or Sector 1,coast which Romania states is
70.25 kilometres long. Romania then compares this length of coast with the part of the
Ukrainian coast it deems relevant for the "adjacent coasts" segment of its claim - i.e.,
Ukraine'scoast from the Ukraine-Romania borderto "Point S" well southofBdesa.
I
I 37 SeeRM, pasas.11.63-11.78.
SeeFigure4-1facingpage38.
I 39 RM, para.9.23.BL ACK SEA . -
ProjectionofRomania'sCoastalFront 5.56 When it comes to Romania's claimline delimiting the areabetween what it terns
"opposite coasts", Romania then uses its entire coast from the Ukrainian border to the
Bulgarian border - in other words, it double counts the 70 kilometre long stretch of its
northern coast relevant for its "adjacent coasts" delimitation, and adds that coast to its
southern coast. At the same time, Romania only counts the Ukrainian coast between Cape
Tarkhankut and Cape Sarych on the Crimean Peninsula without either talung into account
Ukraine'scoast from the Romanian border to "Point S" or, indeed, any of the more than
600kilometre long stretch of Ukrainian coast north and east of "Point S" up to Cape
TarkhankutW.
3.57 This highlightsthe distortednature of Romania'streatment of the coastal geography of
the Parties. For purposes of constructing its maritime boundary claim, Romania relies
exclusivelyon a very short (70 kilometres)stretch of its own coast just south of the land
border with Ukraineandjust two base-pointson this coast (one of which is a man-made dyke
and the other the end ofa sand spit named the Sacalin Peninsula) and then double counts that
coast as relevant forboth the "adjacent" maritime boundary and the "opposite" boundary.
Moreover,in an effort to minimize the obvious disparity between the lengths of the coasts of
the Parties, Romania has no hesitation in counting its entirecoast up to itsboundary with
Bulgaria when it comes to applying the element of proportionality. At the same time,
Romaniaignores more than half of Ukraine'scoast facing southwards onto the relevantarea
as well as the presence of Serpents'Island. The result, as will be more fullydiscussed in
Chapters 4 and 10, bears no relation tothe actual geography of the area, isartificial in the
extreme, and has led Romania to claim an inequitable and legally unsupportable maritime
boundary withUkraine.
Section 3. The RelevantArea
3.58 On the basis of the foregoing, it is readiIy possibleto identify the relevant area for
purposes of thedelimitation and to understand why Romania'sdescription of the relevantarea
isflawed primarily due to Romania's failure to take into account the actual coasts of the
Partiesthat abut theareato be delimited and theirlegal entitlements.
l
40
Ibid.paras.9.23-9.24.3.59 By definition, the reIevant areais circumscribedby the relevant coasts of the Parties
thatgeneratemaritimeentitlements that meet and overlap and between which the delimitation
of the Parties' respective continentalshelves and exclusive economic zones is to be effected.
The basic elements of this overlapping of coastal projections areillustrated on Figure 3-10.
Ukraine and Romania in fact agree on the terminal points on each Party's coast that
circumscribe therelevant area {theRomanian border with Bulgaria andthe Ukrainiancoast at
Cape Sarych).
3.60 The western limits of the relevant areacorrespondsto the Romanian coastline between
the land boundaries with Bulgaria and Ukraine and the stretch of the Ukrainian coastline
extending from the border with Romania until a point located just north of Odesa, discussed
in paragraph 3.17, above. In the north, the relevant area is bordered by the south-facing
Ukrainian coastline running along the northwest portion of theBlack Sea. In the east, the
relevant areais bounded by the west-facing coast of the Crimean Peninsula terminating at
Cape Sarych,which represents the final point on the Ukrainian coastline which faces the area
to be delimited.
3.61 As mentioned above, whereas the length ofthe total Black Sea coast of Romania is
approximately258 kilometres, the length of the Ukrainiancoast abutting the relevant area is
overfour times longer, totalling approximately 1062kilometres.
3.62 The southern limit of the relevant area is defined by a line drawn roughly
perpendicular from the mainland coast from the point where theBulgariadRomanian land
boundary reaches the Black Sea until a point between the Romanian and Ukrainian coasts
where the interests ofthird States potentially come into play. This point is then connectedto
Cape Sarych by a straight line which represents the southeastern limit of the area to be
deliniited.
l
3.63 Therelevant area as thus described isdepicted on Figure 3-11.It represents a maritime
area falling exclusively between the coasts of Ukraine and Romania where third States have
no purported or actualcontinental shelf or exclusiveeconomicrights.lt is, by definition, an
areawhichfalls to be delimited between Ukraine and Romania.BothParties'CoastalProjeelions
l
Firp3-11013.64 If reference is made to Romania's description of the relevant area, which, for
convenience, is reproducedas Figure 3-12A, it can immediately be seen that there arcertain
elements of agreement between theParties and other areas where Romania's version clearly
runscounter to the law and thegeographic facts.
3.65 The points of agreementconcern the terminal points on the mainland coasts of the
Parties. Both Parties agree that the southern limits of the relevant area extend, on the
Romanian side, fromthe land boundary between Romaniaand BuEgariaand, on theUkrainian
side,from Cape Sarych on the southwestern coast of the Crimean Peninsula, It follows, both
legallyand as a matter of pure geography, that alofthe coasts of the Parties that lie between
these two points and are less than 400 nautical miles from each other front the areato be
delimited and thusarerelevant to the identification of the relevant area.
3.66 However, Romania'sselection of the relevantarea suffers from two obvious defects
which are apparent ifthe areas identified bythe two Parties are compared as illustrated on
Figure 3-12B.
3.67 In the north, Romania has artificiallexcluded a large area which lies offthesouth-
facing Ukrainian coast betweenthe point labelled"Point S"by Romania and Cape TarWlankut
illustrated by green cross-hatching on Figure 3-12B. This is a consequence of Romania's
arbitraryeliminationof thisimportant stretch of Ukraine'scoast discussedabove.There is no
reason in fact or inlaw why this portion of Ukraine's coast should be irrelevant (while
Romania treats itsentire Black Sea coast as relevant) and why the area lying behind the
fictitious closinglineconstructedby Romaniashouldbeexcluded.
3.68 Not surprisingly, the Court in the past hasfirmly rejected similar attempts to exclude
the coasts of the parties or significant maritime areas that are closed off bya unilaterally
established closingline aspartof the relevant area.For example, in the Tunisia-Li byse,
the Courtemphasizedthat it was necessary 10 compare "like with like", and thus refused to
acceptTunisia'sargument that the maritime areas lying landward of a straight closing line
drawn by Tunisia across theGulf of Gabesshould be excluded from the relevant ma4'. The
41 ContinentaSheIf(Turzisia /LabJalznniriyaJudgment,I.C.JRepa~s 1982p. 76para.104.Court ruled that the "relevant area"comprised the entire maritime arealying up to and off the
relevant coasts of theParties.
3.69 In the present case, Ukraine has not enacted a system of straight baseIinesbetween
Romania's "Point S" and Cape Tarkhankut. That line is entirely a product of Romania's
imagination. Nonetheless, even if Ukraine had adopted such a closing line, this would not
have meant, as the Tmisia-Libya case makes clear where Tunisia had enacted a system of
straight baselines closing the Gulf of Gabes, that the waters lying landward of such a line
would be excluded from the relevant area or that Ukraine's coast in thisarea should be
ignored. It follows that the absence of any such closing line in actual fact reinforces the
conclusion that all of the maritime areaslying off the relevant coasts of theParties are to be
considered as fallingwithin the relevant aread2.
3.70 Theseconderror Romaniamakes with respect to defining the"relevant area" concerns
a triangle of seaarea lying south of Cape Sarych on the Ukrainian coast of Crimea. This area
is depicted inred cross-hatching onFigure3-1293.
3.71 Itis evident that this area,which Romania has included within its "relevant area", has
nothing to do with the delimitation between Ukraine and Romania. It concerns a maritime
area lyingexclusive1y between Ukraine, on the one hand, and either Turkeyor Bulgaria on the
other. While it is obviously in Romania" interest to tryto include such areas for purposes of
applying the test of proportionality, they clearly have nothing to do with Romania (even
according to Romania's own method of delimitation), and thus cannot in any way be
considered as forming pact of the relevant area in the case. Just as the Court held in the
Tunisia-Libyacase that, "[tlhe only areas that can be relevant for the determination of the
claims of Libya and Tunisia to -the continental shelf in front of their respective coasts are
those which canbe considered as lying eitheroff the Tunisian or off the Libyan coastw4',
similarly, the only areas relevant to delimitation in this case are those that lie off the
respective coasts of Ukraine and Romania. The "triangle" included by Romania in its
definition oftherelevant area clear1 y doesnot satisfy thiscriterion.
42
It is significthatin theGuyof Maine case,theChamber of theCourt also ruledthat the Bay of
Fundy,whilebounded exclusivelybyCanadiancoasts,sticomprised partofthereIevantcoastsofthe
Partiesfor purposesof effectuatanequitable delimitation.DelimitaofrheMaritime Boundary in
49 theGuvof Area, Judgment,IC.J.Reports1984,pp. 268-270,para.31.
ContinentaSheVtfrTunisidLibyaArab Jarnuhirip)Judgment, I.C.SReparts 1982,p.61,para74. v
RelevantAreaAccording 9.....;
Comparison offRelevaotAreas3.72 On the basis of the foregointhe relevant areawithinwhich the delimitationistotake
place,as defined by theParties'relevant coasts, ithat which is depictedin Figure3-11. The
implications of assessing theclaims of thePartiesfor purposes of applyinthe proportionality
testwithin therelevant area arediscussed in Chapter10 below. CHAPTER 4
THEERRONEOUS ANDARTIFICIAL NATURE OFROMANIA'S
MI3THODOLOGY
Section1. Introduction
4.1 At thevery beginning of itsMemorial, Romania asserts that the boundarybetween the
respective maritime zones of the Parties "can be readily drawn"'. At first sight, such an
assertion appears to be astonishing, to say the least. When the adverb "readily" isused to
qualify an action, this indeed implies something which can be done not only "promptly" or
"quickly", but also "easilyw2.So, if the drawing of the maritime delimitation line between
Ukraine's and Romania's maritime zones were so "easy'" as Romania now contends, one
might be surprised that the two States were unable to settle directly an allegedly
unsophisticated issue through several years of negotiations; and one might ask why ithas
been necessary to submit to theCourtsuch a would-beuncomplicated question.
4.2 In reality,Romaniaresortsto an artifice. By statingthatthecase issimple and easy to
settle,Romania paves the way to its oversimplification of the methodoIogy which is then
applied when presenting itsclaim. The artifice appears as early as the Introduction of the
Memorial, in the paragraphs dedicated to a summary of Romania" position3.And in the
following chapters of the Memorial, the artificial character of Romania's methodology
becomesperfectly clear concerningboth its two-sector approach of the delimitationarea and
the constructionof its chimed line.
4.3 This Chapter will demonstrate the contrived nature of Romania's methodology.
Section 2 willaddress the distortions inherent inRomania'stwo-section approach which result
prirnarily fromRomania'sselective approachto the geography of the relevant area.Section 3
will then show chat the only so-called relevant circumstance that Romania alludes to - the
1 RM, para.1.10.
2
Forexample, theShorterOxfordEnglishDictionar(ThirdEdition) defines "readily"1.Promptly,
inrespectof the voluntarineof the action; hence, willingly, cheerfully. 2. Quickly, without delay;
3 also,withoudifficulty, withease or facility".
M, paras. 1.10-1.15.argument thatbecause the Black Sea isan "enclosed sea", the delimitationin this case must
use the same methodologies that have been employedelsewhere in the Black Sea between
third States -is unsupportableand irrelevant. Section 4 will place the issue of State practice,
which Romania has also sought to deploy, in its proper legal and factual context to
demonstrate that Romania is wrong when it asserts that small islands areinvariably given a
reduced or no effect in maritime delimitation.
Section2. TheArtificial Characterof Romania's Two-Sector Approach
4.4 When dividing the delimitation area into two sectors, depending on whether the
relevant Ukrainian and Romanian coasts are adjacent or opposite to each other, Romania
manifestly has been inspired by previous cases in which the Court has acted in this way, in
particular the 1982 TunisidLib CyantinentalSheEfcase4, and more recent1y the Maritime
Delin~iration and Territorial Questionsbetween Qatar and Bahrain case5 . y itself, a division
of the delimitation may be appropriate insofar as it appears as based on the actual coastal
relationship. But the method followed by Romania in the application of that principle to the
present situationneglects therelevant coastal geography and is completelydisingenuous.
4.5 Inits Memorial, the two-sector division is based on the fact thatRomania's coast may
itself bedivided into two sectors6.But, as pointed out in Chapter 3, it is thesame Romanian
coastal sector, between the Sulina Dyke and the Sacalin Peninsula, which is presented as
being both adjacent and opposite to the Ukrainian coast, and therefore is used twice in
Romania'smethodology, both for the lateral delimitation and the frontal delimitation. Thus,
the second sector of Romania's coast, south of the Sacalin Peninsula to the border with
Bulgaria, actually plays no role in the canstruction of Romania's claim line although it is
countkdby Romania for proportionality purposes7.
4
The Court dealt"with the area as divided itwo sectors"(I.C.J. Report1982, p.82, para.114),
becausethe change m directioof the Tunisiancoast was "saidto modify the situatioof lateral
adjacencyofthe twoStates,even thoughitclearly [did] ngo so faas to place them ia positionof
legaIlyoppositStates(ibid p.63,para.78).
S A distinctiowasmade between ''thsouthernpart othe delimitatiarea,which issituatewhere the
coastof theParties aropposite to each other(I.C.J.Report2001,p. 91,para.169)and a northern
part"wherethe coasts othe two States ano longeroppositetoeach otherbutare rathecomparable
toadjacentcoasts(ibid.,para170).
6 RM,para. 2.4.
7 SeeChapter 10 below.4.6 At the same time, in constructing its claim, Romaniahas no hesitation in ignoring over
half of Ukraine's relevant coast. The consequence is thatRomania proceeds on the basis that
itsentire coast shouldbe usedforestablishingthe delirnitation line -and that parts of its coast
(the northern sector) should in fact be used twice for thispurpose - while Ukraine's extensive
south-facing coast -between "Point S" and CapeTarkhankut - should be ignored. There is
nothing equitable about such an approach, and it is scarcely surprising that Romania's
methodology results ina grossly disproportionate claim line, as shown in Chapter 10.
4.7 In order to expose the shortcomings in Romania's methodology, itis convenient to
address Romania'stwo-sector approach in turn.First, Ukraine will review the mechanics
behind Romania'snorthern (or "adjacent coasts") sector of its claim line; second,Ukraine will
turn to Romania'ssouthern sector of its claim (the so-called "opposite coasts" sector).
A. Romania'sNorthern "AdjacentCoasts" Sector
4.8 Romania's methodology with respect to its "adjacent coasts" sector is set out in
Section 2 of Chapter l1 of the Romanian Memorial (pages 195-223). It is aconvoluted
exercise which, at each step of the process, is characterized by incorrect premises and
erroneous geographicconstructs and comparisons,
4.9 Romania'sfirsterroris toproceed on the assumption that there isa pre-existing 12-
mile enclave around Serpents'Island based on an alleged Soviet UnionlRomania agreement of
19498.The courseof thisfictitious boundaryup to a point - labelled "Point X by Romaniaat
paragraph 11.54 of its Memorial - isdepictedon Figure28 of Romania'sMemorial.Ukraine
will show that this argument is completely fallacious in Chapter 5. There is no pre-existing
delimitation agreement binding on the Parties beyond the point identified inthe 2003 Treaty,
which was the startingpoint for the negotiation of the boundary of the areas of continental
shelf and the exclusive economic zones between the Parties and from which the P-es agree
thatthe Courtis to delimitthe boundary in this case.
---
4.10 Romania is obviously sensitive to the weakness of its argument, and for this reason
makes the alternative argument that "the maritimeboundary around Serpents'Islandwouldbe
8
RM, paras.1l5-11.44.the same independent of any agreement between the Partiesu9.Aswill be seen, this assertion
is advanced atthe expenseof adistortion of both the law and the geographicfacts.
Romania'sProvisionaIEquidistanceLine IsWronglyCakulated
(i)
4.1l While the plotting of the provisional equidistance line as the frst step in the
delimitation exercise ismore fulIy discussed in Chapter 7, itis appropriateto point out here
that Romaniafirst posits a "provisionalequidistance line" which is erroneousIyconstructed.
According toRomania -
"... the correct approach in relation to both sectors is first to draw a provisional
equidistanthedian line (excludi~ag anymaritime features that are not to be taken into
account atthis stage) .."'O.
4.12 As is clear from this fomuiation, Romania's calculation of the "provisional
equidistance line" is not, in fact, a true equidistance line, but one which already prefigures,
anddiscounts, what Romania contendsis a "specialcircumstancejustifying the shifting of the
provisional equidistance line"*l.This so-called "special circumstance" is the presence of
Serpents' Island which, in Romania'sview, is entitled to "no weight at all indelimiting the
continental shelf and exclusive economic zones of Romania and Ukraine"'zA . s a result,
Romania fails to construct the proper "provisional equidistance line", which should be a line
that isequidistant from the baselines of the Parties fromwhich the breadth of their territorial
seas is measured (i.e., including Serpents'Island), before any account is taken of special or
relevant circumstances. Instead, Rumania jumpsimmediately to an "adjusted" equidistance
line which accordsSerpents'Island no more than a 12nautical mile enclave of territorial sea
and no continental shelf or exclusive economic zone at all. This starting point isunjustified in
law and is unsupportedin fact when the nature and importance of Serpents'Island istaken
into accountas Chapter 7 willshow.
l
9
10 Ibid., paras.11.45-11SO.
11 Ibid..ara.11.47.phasisadded).
12 Ibid.para.l1-49. (ii) Romania'sUse of Artificial Basepoints on Its Coast while Ignoring
GeographicBasepoints on Ukraine'sCoast
4.13 Romania then compounds its error by using, as the relevant basepoint on the
Romanian side for constructing itsequidistance line,the seawardmost point on a man-made
feature -the SulinaDyke - which Romania itself concedes, although without giving details,
"underwentmajorextensionworksfromthe 1950suntil the 1980~"'~and whichextends some
4.5 kilometres out to sea fromRomania's actual coast (see Figure 4-1).
4.14 The end result is a "provisional equidistance line" which ignores the relevant
basepoints on actual Ukrainian territory (i.e . , Serpentst Island) while making full use of
artificial basepoints on Romania's side represented by the seawardmostextension of an
artificial structure, the Sulina Dyke. The pronounced effect that this distorted approach
produces is illustrateon Figure 4-2, which shows (i) Romania's "provisional .equidistance
linet'malung fulluse ofSulina Dyke as a basepoint but ignoring Serpents' Island; (ii)the
effectthat the use of theman-made Dyke has on the course of this line by showing the line
that would result if both the Dyke and Serpents' Island were ignored, and (iii)the actual
"provisional equidistance line"drawn in accordance with thelaw.
(iii) Romania then Claims More than Its "Provisional Equidistance
Line"
4.15 Apparentlyunsatisfied with even this exaggerated approach, Romania then claims
even more to the north of its incorrectly calculated "provisionalequidistance line". This
additional slice of continental shelfand exclusive economic zone claimed by Romania is
graphically shown on Figure 29 of Romania'sMemorial.
4.16 Romania'sMemorial makes clear that this aspect of Romania'sclaim has no basis in
therelevant circumstancescharacterizingthe area, but rather is advancedas a vaguenotion of
"compensation"or "dstributivejustice" for what Romaniaperceiveswere past injustices. As
the Romanian Memorialitself states:
13 RM, para.11.17. "This soIution would lead to the allocationto Rarnania of a maritime area of about
68 km2. This roughly equals the area lost by Romania because of the unjustified
departurefrom equidistance when delimiting theterritorial seas betweenRomaniaand
the USSR,a factor whichshould be kept in mind when considering the overall equity
of the solution ad~pted'"~.
Such a plea of equity fliesin the faceofthe Court'sclear-cutjurisprudence. In the first
4.17
place, theCourt is not empowered to takea decision ex aequo et bono. Secondly,in both the
Tunisia-Li bndathe Libya-Malta cases, the Court left no doubt thatmaritime delimitation
l
under international law is not an exercise in distributive justice, As the Court stated in the
~
1 Tunisia-Libyacase, in distinguishing its task froma decisiontaken exaequo eabono:
"The task of the Court in the present case is quite different: it ibound to apply
equitable principles as part of international law, and to balance up the various
considerations which it regards as relevant in order to produce an equitable result.
While it isclear that norigidrules exist as totheexact weight to be attached to each
element in the case, this is very far from being an exercise of discretion or
conciliation; nor is it an operationofdistributiveju~tice"'~.
4.18 The Courtthenreiteratedthis reasoningintheLibya-Mulbacase:
"That equitable principles are expressed in terms of general application, is
immediately apparent from a glance at some well-known examples: the principlethat
'there is to be no question of refashioning geography, or compensating for the
Iinequalities of nature; therelated concept of non-encroachment by one party on the
I
i natural prolongation of the other, which isno morethanthenegative expression of the
positive rule thatthe coastalState enjoys sovereignrights over thecontinental shelf
off its coasts to the full extent authorized by internationd law in the relevant
circumstances; the prjnciple of respect due to all such relevant circumstances; the
principle that although all States are equal before the law and are entitled to equal
treatment, 'equity does not necessarily imply equality' (I.C,J. Reports 1969, p. 49,
I para. 91), nor does it seek to make equal what nature has made unequal; and the
principle thattherecan be noquestion of distributivej~stice"'~.
4.19 It follows that Romania's claim, which is based in part on Romania's fictitious
"PointX" - a point which was never previously agreed by either the Parties or their
predecessors - and in parton an artificial construct to theeast whereby Romaniaarbitrarily
, links "Point X" with amysterious point -labelled "Point Y" on the figure -lying halfway
l betwekn"Point X"and Romania's"Point T", has no basis whatsoever in lawor in fact.
l L4 I
1 . 15 RM, para.11.72.
I 16 ContinentalShey(Tunisia/Li Arybanamahiriye)Judgment,I.CJ.Reports1982,p.60,para71.
ConrinenfaSl hetf(LibyAarnbJarnahirydM~lta)Judgment,I.C.JReports1985,pp. 39-40para.46.EffectofSulinaDyke fiv) Romania's MethodoIogy Ignores AI1 of Wkraine'sSouth-Facing
Coast
4.20 Apart from Serpents' Island, the other geographical factor which Romania's
methodologysystematically ignores is the entire south-facing coast of Ukraine - a stretch of
coast which, as Chapter 3 pointed out, is over 600 lulometres long. Romania unabashedly
treatsthis coast -which runs between "Point S" and CapeTarkhankut - as non-existent,and
its claim line in the north therefore takes no account whatsoever of this coast by passing
directlyinfrontof it thereby cuttingoff its seawardprojection.
4.21 The mere fact that Ukraine'scoast changes direction north ofthe city of Odesa in no
way meansthat thispartof thecoast becomes irrelevant or should be ignored. As theCourt
stated in the Tunisia-Libyacase with respect to the change of direction of the Tunisian coast
at the back of the Gulf of Gabes:
"The most evident geographical feature of the coastlines fronting onthat area ofshelf
relevant for the delimitation is the radical change in the general direction of the
Tunisian coastline marked by the Gulf of Gabes; and clearly no delimitation of the
continentalshelf in front of the coasts of the Partiescould be regarded as equitable
which failed to take accountof that feature"I7.
4.22 Moreover, itis not simply the change of direction of the Ukrainian coast which is
relevant - in fact,the ukktinian coast changes direction twice: once north of Odesa and a
secondtime when that coast turns to the south along the west coast of Crimea; the marked
difference in thelengths of the coasts of theParties abuttingthe area tobe delimited is also a
I
relevant circumstance which must be taken into account in order to arrive at an equitable
delimitation. This importantfactor is discussed in Chapter 8. For present purposes, itsuffices
to note that Romania's claim line takes no account of this geographical reality either with
I respectto the first sectoof Romania'smethod or,indeed, forthesecondsector as well,
4.23 It can thus be seen that the northern sector of Romania's claim ignores the basic
I geographicsetting of the area. Tosummarize:
17
ConrinenraSEheif(Tuni~ia/LA irybanatnnkiriyaJudgment,E. .J.Report1982,p. 86,pxa.122. It is based on an alleged delimitation agreement between the Parties which does
not exist;
It ignores the presence of Serpents' Island when it comes to establishing the
provisional equidistance line delimiting the continental shelf and exclusive
economiczones of the Parties;
* It employs a man-made basepoint located on the Sulina Dyke for purposes of
constructingRomania'sclaim while discardingbasepoints located along the actual
territoryof UkraineonSerpents'Island;
It then claims areas lyingeven to the north of thewrongly-constructed provisional
equihstance line;
It treats Ukraine's south-facing coast as non-existent, and cuts off the legal
entitlements of thatcoast;and
It ignores the substantial dsparity thatexists between the lengths of the relevant
coasts ofthe Parties inthispartof the area to bedelimited.
B. Romania's Southern "Opposite Coasts"Sector
4.24 As with the "adjacent coasts" sector of its claim line,Romania also presents a distorted
view of the geography of the relevant area in its approachto the "opposite coasts" segment of
its claim.This leads Romania not only toselect an inappropriate starting point inthenorth for
its claim line in this sector, but also to neglecthe overall coastal geography of the area and
the marked Isparity that exists between the lengthof the coasts of the Parhes in arriving at its
line.
(i) Romania's Selective Approach to theParties' Relevant Coasts
4.25 By its own admission, the only part of the Romanian coast which controls the course
of Romania'sclaim in the second sectoris the short (TO km long) stretch of coast between the
border with Ukraine and the tipof the Sacalin Peninsula. As Romania itself observes, only
two points on the Romanian side are relevant to establish whatit calls the "median line" in
this sector. These are (i) the outeend of the Sulina Dykeand (ii) the southeastern end of the
SacalIn Penin~ula'~Y . et this is the exact same stretch of coast that Romania previously
identIfied asrelevant to the "adjacentcoasts" sector of itsclaim line. In other words, Romania
uses its northern coast twice - once for the "adjacent" sector and again for the "opposite"
sector.
18 FM, pua. 1l.78.4.26 Romania'suse of Sulina Dyke as abasepoint for itsclaim has been addressed earlierin
this chapter. As for the "southeastern end of the Sacalin Peninsulat',Romania has used as its
basepointthe tip of a sandy and uninhabited projection that extends considerably out to sea
and commonly described as an island19.These features can be seen on Figure 4-1. Thus,
Romania has attemptedto maximize its claim by using an artificial structure, on the one hand,
and an uninhabited sand spit, on the other, forpurposes of calculating a so-calledequidistance
line. At the sametime, none of the Romanian coastlyng south of the Sacalin Peninsula up to
theborderwith BuIgaria provides anybasepoints forRomania'sclaim.
4.27 On the Ukrainian side, Romaniaidentifies twobasepoints which are said tocontrolthe
median line. These are located at Cape Tarkhankut and Cape Khersones2'. Even accepting
these points, the lengthof Ukraine's coast between Cape Tarkhankut and Cape Khersones is
some 200 kilometres long -or three times longer than the stretch of Romanian coast between
itsbasepointsontheSulina Dyke andthe Sacalin Peninsula. Romania'smethodologytakes no
account of thissignificant difference in coastal lengths.
4.28 Moreover, as previously discussed, Romania ignores the existence of Serpents'Island
as a basepoint for its"opposite coasts" cIaim. Yet, as explained in Chapter 7, Serpents'Island
is inhabited and supports considerable economic and other activities2'. Consequently,
Romania's "opposite coasts" claim is based on an incorrectly constructed"provisional
equidistance line" just as its "adjacentcoasts" equidistance line W as dso incorrectly
calculated. The result is that the stamng point in the north for Romania'sclaim in thesecond
sector - thepointlabelled "PointT" by Romania and depicted on Figure 30 in theRomanian
Memorial -bearsno relation to anactual equidistance line.
19 See the EnciclapediaGeograftca"aRomrinei,EdituraEnciclopedic5, Bucharest,2002:The entryfor
Sakalinreads(unofficialtransIatio:TheSakalin,the sand-formedisland,is uninhabitedandlocated
inthe Black Sea nearthe Romanian coastline,oppositto the outfallof the riverheadof the Saint
George DanubeRiver tributary. The island was formon a base of a sanshoalwhich was siltedin
widtha long time after the catastrophic flood in theDanube Ri1897.nAfterwardstheisland was
elongated(now its lengthamountstoalmost10 km)under theinfluenceofwaves, butlasttimeitwas
divided in half formingthe islandBig Sakalin(inthe north) and the islandSmallSakalin (ithe
south)".Annex 15,Vol. 2. Moreover, the 1996Sailing Directioof theBlack Sea published by the
Ministryof Defence ofthe Russian Federationstatethat(unofficialtranslatio"[i]nSpring when
strongstormwindsblowsea waves sometimesrollover theislandSakalin,anditturnsoutto be under
watertemporarily"A.nnex 16, Vol. 2.
20 RM, para.11.79.
21 See paras.7.47-7.83below.4.29 In addition,Romania again ignores all of Ukraine's south-facing coast and even a
significant part of Ukraine'scoast alongthe west side of the Crimean Peninsula north of Cape
Tarkhankut. As for the portionof Ukraine'scoast that Romania does take into account - from
Cape Tarkhankutto Cape Khersones - even that coast ithree times longer thanthe Romanian
coast between the basepoints identified by Romania onits own coast.
4.30 In the light of thesebasic geographical facts, Romania's blanket assertion that "[tlhe
opposite coastlines [of the Parties] are broad1y equal to each other and present no special
featuresz2"is demonstrably inaccurate. Romania can only advance such a contention by
manipulating the actual coastal relationships oftheParties and ignoring Serpents' Island.This
involves the following selectiveapproachto the geographic facts:
Double counting Romania's coast between the Sulina Dyke and the Sacalin
Peninsulafor both Romania's"adjacent coasts" and "opposite coasts"claim line;
e Ignoring all of Ukraine'ssouth-facing coast and a large segment of its Crimean
coast north of CapeTarkhankut;
Ignoring the presence and maritime entitlementsof Serpents'Island; and
Counting the entire Romanian coast south of the Sacalin Peninsula even though
that coast generates nobasepoints that control either sectoofRomania'sclaim.
4.31 As explained in Chapters 3, 8 and 10, the Ukrainiancoast is some four times longer
than the Romanian coast within the relevant area, whether those coastsaremeasured alongthe
actual coastline or in accordance with their general direction as coastal fagades. Yet
Romania's methodology takes no account of this disparitywhich is obvious1y an important
relevant circumstance in the case.
4.32 l These considerations completely underminethelegitirnacy of Romania'ssecond sector
of its proposeddelimitation.The startingpoint ("Point T") for that line is insupportableand
not based on equidistance,and the subsequent courseof the line neither reflects the actual
provisional equidistance line nor the adjustment that has so be made to that line to take
account of theimportant difference in the lengthsof thecoastsof the Parties abuttingthe area
to be delimited nomatterhow those coasts are measured.
22
RM, para.11.84.Section 3. Romania's"EnclosedSea" Argument
4.33 Apart from the defects in Romania'smethodology explained in Section 2, Romania's
Memorial also purportsto find significance in the fact that the Black Sea is an "enclosedsea"
and even goesso far as to identify this element as a "special circumstance" having a bearing
on the Ukraine-Romania delimitationn. At paragraph 8.126(h) of its Memorial, Romania
summasisesits argumentas follows:
"The enclosedcharacter of the sea is a relevantlspecial circumstance to be considered
together with any pre-existing delimitation agreements; in consequence, any new
delimitation should not dramatically depart from the method previouslyused ~nthe
same seabetween other riparian Statesin ordernot EO produceineguitableresults."
4.34 In support af this argument, Romania cites the 1978 Agreement between Turkey and
the U.S.S.R. on the Delimitation of the Continental Shelf in the Black Seax4,and the 1997
Agreement betweenTurkey and Bulgaria on the Delimitation of theMaritime AreasBetween
the Two States in the Black Seaz5.Romania contends that, because the Black Sea is an
enclosed sea within the meaning of Article 122 of the 1982Law of the Sea Convention,these
agreements, and the fact that, in Romania's submission, they were based on equidistance,
constitute a relevant circumstance for the purposes of the present dispute. Consequent1 y,
Romania argues,the delimitation of Romania and Ukraine'scontinental shelf andEEZ should
be carriedout in accordance with the principle of equidistance in order to satisfy what
Romania says is the"need for consistency mong all cases of delimitation in the Black Sea",
and because "usingdifferent methods in theother delimitation processes would tend to bring
about inequitableresults"26.
4.35 This line of argument is devoid of merit. There is no legalauthority,whether deriving
from Article 122 of the 1982 Convention or otherwise, that maritime boundaries between
littoral Statesbordering an enclosed sea should be determined on the basis of a pre-ordained,
single method of delimitation. Nordoes the fact thattheBlack Sea isan "enclosed sea" have
23 RM, para. 8.124
24 Signedon23 June1978and entereintoforceon 15May 198 1.Annex 17,Vol.2.
25 Signed o4 December 1997and enteredintoforceon4 November 1998.Annex 18Vol.2.
26 RM, para6.25.any bearing on the method of delimitation that should be applied in order to produce an
equitable resuIt in a bilateral delimitation betweenUkraine and Romania.
4.36 Article122of the1982Convention provides:
"For the purposes of this Convention,'enclosed or semi-enclosed sea' means a gulf,
basin or sea surrounded by two or mare States and connected to another sea or the
ocean by a narrow outlet or consisting entirely orprimarilyof the territorial seaand
exclusive economiczones of two ormorecoastalStates",
4.37 There is no dspute between the Parties that the Black Sea falls within this definition.
But there similarly can be no dispute that Article 122 contains no implicationsderiving from
thisfact for purposes of identifying the method of delimitation that may be relevant between
two riparian States bordering an enclosed sea for delimiting their maritime zones. The
delimitation of theexclusive economic zone and continental shelf isgoverned by Articles74
and 83 of the 1982 Convention, respectively, whereas the delimitation of the territorial sea,
which is notrelevant in thiease, isgovernedbyArticle 15.
4.3& , No special rules are included in the Convention for the delimitation of maritime areas
in endlosed or semi-enclosed seas; in particular,Articles 74 and 83 of the 1982Convention
include no reference to the terms "enclosed sea" or "semi-enclosed sea". The matter is left to
be determined by the application of the normal rules of international law governing questions
of delimitation.
4.39 The on1 y other article in the Convention falling under therubric of Part IX (Enclosed
or Serni-EnclosedSeas) is Article 123.It provides:
"Co-operationof States borderingenclosedorsemi-enclosed seas
States bordering an enclosed or semi-encIosed sea should co-operate witheach other
in the exercise of their rights and in the performance of their duties under this
Convention. To this end they shall endeavour, directEy or through an appropriate
regional organisation:
, (a) to co-ordinate the management, conservation, expIoration and exploitation of
l the livingresources of thesea;
(b) to co-ordinate the implementation of their tights and duties with respect tothe
protection and preservation of the marine environment; (c) to co-ordinate their scientific research policies and undertake where
appropriatejoint programmesof scientific research in the area;
Id) to invite, as appropriate,other interested States or international organizations
toco-operate with them infurtherance of the provisions of this article."
4.40 As can be seen, Article 123 also has nothing to do with the delimitation of the
continental sheIFor exclusive economic zone. Itdeals solely with technical issues of co-
operation relating to the management and conservation of the living resources and marine
environment of thesea.
4.41 It istrue that Romania, in thecourse of the negotiation of the 1982 Convention, made
various proposals that the delimitation of exclusive economic zoneslcontinental shelves of
States bordering semi-enclosed seas should be effected tahng into account the fact thatthe
delimitation was to takeplace in a semi-enclosed sea27 . owever,it should be emphasised that
these proposals were not accepted and consequently were not reflected in the agreed text of
the Convention.
4.42
Neither canit be argued -asRomania does - that the "enclosed character" of the Black
Sea is a relevantlspecial circumstance in this delimitation. "Relevant circumstances" and
"special circumstances"in the contextof maritime delimitation areterms of art. They connote
circumstances which relate tothe delimitationbeing undertaken in such a way as to affecthe
outcome of that delimitation. While in a general sense the fact that the Black Sea is an
enclosed orsemi-enclosedsea is arelevant part of theoverall background against which the
delimitation between Ukraine and Romania takes place, this is more a matter of general
geography than aparticular circumstanceof legal significance forthe delimitation.
4.43 Nothing in the enclosed nature of the Black Sea affects the delinlitation ro be
undertaken asbetween Ukraine andRomania except, as explained in Chapter 8,in connection
with determiningthe end-pointof the boundary. Whetherthe Black Sea is a seaenclosedby
Bulgaria, Turkey andGeorgia on the west, south and east shores, or whether itwas an open
27 See theproposalmade byRomania and orherStatesinrespect of semi-enclosseasdated 22 June
1977,inR. PlatzoderThirdUnited Nations Conferencon he LAW ofthe Sea,Documents,Oceana,
Dobbs Ferry,W, 1982,Vol. IV,p. 486, andtInformalSuggestionmade by severaStatesincluding
Romania on 1September 1978(U.N .ocumentC.2nnfomal MeetrndlX/Rev. 1).sea with those States having disappeared from the locations where they actually are, his
would have no impact upon the delimitation of the Ukraine-Romania EEZ and continental
shelf (exceptperhapsin relation to the southerly extension of the line delirnitafon).
4.44 Two precedents taken from the Court's jurisprudence illustrate the fallacy in
Romania's argument. These are the Tunisia-Libya and Libya-Malta cases, both of which
concerned bilateral delimitations between States that were located in an enclosed sea - the
Mediterranean Sea.
4.45 Inneither case was the enclosed nature of the Mediterranean a relevant circumstance
which affectedthe method of delimitation that the Court identified as producing an equitable
delimitation between the contesting parties. Nor chdthe Court feel obligated to draw on other
bilateral delimitations negotiated between third States in the Mediterranean as binding
precedents for theactual disputes before the Court. To the contrary, inboth cases,the Court's
delimitation of an equitableboundarydepended on the facts and circumstances particular to
the actual disputesbefore it.
4.46 InTunisia-Li thyaCourt based itsdecision on a combination of factors having to do
with the conduct of the parties and theircolonial predecessors, and on the geographic
configuration of the relevant coasts of the parties. In Libya-Malba,the Court determined an
equitable boundary on the basis of a provisional equidistance line adjusted northwards in
orderto takeinto account the markeddisparity that existed between the lengths of the relevant
coasts of theparties.
4.47 To the extent that the presence of third States in the Mediterranean was a relevant
factor in either case (as opposed tbilateral delimitation agreements which were not relevant),
this factor was only germane to identifying the end-point or end-points on the resulting
delimitation line. But the actualmethods of delimitation adopted by the Court were very
much aproduct of the geographic and other circumstances characterizing the actual areas in
dispute without reference to methods that other States in the Meditesranean may have had
recourse to for purposes of delimiting parts of the Mediterranean that were subject to a
differentset of geographical.and other facts.4.48 Romania further argues that the alleged failureof Turkey and Bulgaria to rnodfy the
continental shelf/EEZ boundary to take intoaccount the fact that Turkey'sBlack Sea coast is
disproportionately longer than that of Bulgaria obliges the Court in this case, "for
considerations of logic and equity", not to take into account the disproportionate length of
Ukraine'scoast asa relevant circurnstan~e~~.
4.49 This attempt by Romania to invoke a treaty between two third Statesin order to
prejudice Ukraine's continental she1 fEEZ entitlement runs drectl y contrary to basic
principles of international law. Whether, as a matter of fact, hose third States took into
account this orthatreason can on1 ybe, so far asRomania and Ukraineareconcerned, amatter
of speculation; and whatever factors may have been taken into account, or discounted, by
Turkey and Bulgaria,their reasonsfor doingso in an agreement that settled on a global basis
land and territorial sea boundaries, as well as that of their continentalshelf and EEZ, are
entirely irrelevant to the different circumstances obtaining between Ukraine and Romania.
Any attempt by Romania to specuIate about such matters,and draw conclusions from its
speculations,have noplace in the context of thepresent dispute.
4.50 ,It follows therefore that Romania'sarguments that theenclosed nature of the BIack
Sea is a special orrelevant circumstance such that the Court should be influenced by factors
that allegedy influenced other delimitation agreements between Black Sea littoral States are
groundless, and should be rejected outright.
Section 4. TheRelevance of State Practice
4.51 Paragraph 4 of the 1997 Exchange of Letters made reference to the fact that the
Governments of Ukraine and Romania should negotiate a maritime boundary agreement on
the basis of,inte aliu:
Sub-paragrap ha): The principlestated in Article 121 of UNCLOS"as applied in
thepracticeof States and in internationaljurisprudence";
e Sub-paragraph (c): The principle of equity and the method of proportionality, "as
they areapplied in thepractice ofStates andin the decisionsof
Z8
RM, para.6.33. international courts regarding the delimitation of continental
shelf and exclusive economiczones".
4.52 Thus, as explained morefully in Chapter 6, in 1997 the Governments only agreed to
negotiate on the basis of these principles and procedures in an attempt to agree a mutual
boundary. The extent to which State practice is relevant to the identification of concrete
principlesand rulesof delimitation inthe context of a particular boundary dispute subject to a
separate and different set of geographicaland other circumstances, isanotherquestion which
will be dealtwith below.
A. Legal Constraints on the Relevanceof State Practice
4.53 Apart from what is discussed in Chapter 8 below relating to the presence of third
States at the southern extremity of the relevant area, it should be emphasised that State
practice must be treated with caution when itcomes to trying to derive hard and fast rules of
maritime delimitation fromwhat are generally bilateral, negotiated agreements. First, every
delimitation is unique and must be viewed on thebasisof its own particular facts. Second,
negotiated delimitation agreements frequently do not indicate theprinciples on which they are
based, and do not enumerate otherpolitical considerations that may have been factared into
the ultimate agreement.
4.54 In the lightof these considerations, it is not surprisingthat the Courtitself has treated
State practice very cautiously.As early as the 1969 NorrhSea cases, the Court articulatedtwo
conditions that State practicehad tosatisfyin ordertobe legally relevant,and which were not
satisfied when it came to trying to identify a pparticuIarmethod of delimitation,such as the
equidistance method, that was legally obligatory inall cases as a matter ofState practice. In
the Court'swords:
1 "The essential point in this connection - and it seems necessary to stress it -is that
/ even if these instances of action by non-parties to the Convention were much more
I numerous than they in fact are, they would not, even in the aggregate, suffice in
Ithemselves to constitutethe opinio juris; - for, in order to achieve this result, two
conditions must be fulfilled. Not only must theacts concerned amount to a settled
practice, but they must alsbe such, orbe carried outin such a way,as to be evidence
of a belief that this practicisrendered obligatory by the existence of a rule of law
requiringit,The need for such a belief, is., the existence of a subjective element, is
implicit in the very notion ofthe opinfo jurissive aece~sibatis.The Statesconcerned must therefore feelthat they areconforining towhat amounts to a legal obligation.The
frequency,or even habitual character ofthe acts is not in itself enoughH2'.
4.55 Sixteen years later, in the 1985 Libya-Malta decision, the Court reached the same
conclusion. It held that State practice, "however interpreted, falls short of proving the
existence of a rule prescribing the use of equidistance, or indeed of any method, as
~bligatory"~~.
4.56 It is in the light this clear statement of law that the miscellaneous examples of State
practice cited by Romania in which States have attributed small or isolated islands no or
limited effectin thecontext of biIateraIdelimitation agreements must be examined.
4.57 Moreover,it bearsrepeating that the individual cases citedby Romania are particular
to the geographical characteristics of the area in which each individual delimitation was
agreed and bear no relation to the geophysica1 context of the present case. Aside the
geographicalfeatures which are specific to each case, there are alsoother legal and extra-legal
factors which may have formed partof the underlying basis of individual agreements but
which willnot necessarilybe identifiable fromthe face of the agreements themselves,
B. IndividualExamples CitedbyRomania
4.58 Not only has Romania failed to represent correctly the circumstances in which State
practice may be relevant as reflective of an international legal norm,buthe examplesof State
practice listedin Romania'sMemorial are misleading and, in importantrespects, incomplete.
In particular, none of these examples cited by Romania involved delimitations where the
mainland coasts of one of the parties bordering the areato be delimited was significantly
longer than those of the other party, as is the case here. Itis for this reason that Ukraine
considers itnecessary to discuss the particular circumstances of each of the examplesof State
practice cited by Romania for the proposition that small islands should be given a seduced
effect or disregardedinmaritimedelimitation.
29 North SeaContinentalShe& Judgment,I.C.J.Rcpots 1969,atp,44,para.77.
30
ContinentaShe!f(LibyanArabJarnahiriya/Mal1 t.CJ.Reports 1985,p. 38para.44.4.59 Moreover,as will be evident in the paragraphs below, many bilateral agreements do
attribute full effectto islands in establishing maritime boundaries based on equidistance.
Where less than full effect is given, this is generally explicable by the individual
circumstances of individual agreements, and often indicates the interplay of extraneous
factors.
4.60 Before turning tothose examples of State practicereflective of a wide-spreadpractice
whereby islands are accorded full effect, the following comments deserve to be made in
respect ofthe exampleslisted at paragraphs 8.106 to 8.121of Romania'sMemorial:
(l In the Continental Shelf Agreementbetween Iran and Qatar of 20 September 1969
(which was large1 y motivated by economic considerations), both Iranian and Qatari
islands were ignored as part of a trade-off: tboundary was thus delimited so asto be
equidistant fromthe nearest points onthe coasts ofthe parties' mainlandterritories3'.
(2) Inthe Agreement between Indonesia and Malaysia Relating to the Delimitation of the
Continental Shelf of1969,although in the sector between Borneo and Sarawak certain
Indonesian islands were not gven full effect, as noted by Charney & Alexander
"Indonesia is believed to have conceded to Malaysian claims [in thissegment], to
enlistMalaysian support for itsarchipelagic~Iairns"~'I.tshouId also be pointed out
that,as is commented by Jayewardene, the "distance from the coast appears to have
been a factor of considerable significancein determining the area of the shelf to be
attrib~ted"~~. oreover, Romania omits to mention that islands of both parties were
givenfulleffect in theother segments of the bounde.
Regarding the 1974 Agreementbetween IndiaandSri Lanka, it should first be noted
(3)
thatthis established a boundary separating the States' historic waters. Although the
island of Kachchativu appears to have been discounted as a basepoint, this would
seem to be explained by the fact that the twocountries had disagreed as to the
31 '
: See J.I. Charney& L.M. Alexander (Ed.), inlnrernatil aritimeBoundarie~.Martinus Nijhoff
32 Publishers, Dordrecht/BostodLond1993,Vol.IE ,. 1513.
33 IbidV.ol.Ip. 1022.
H.W. Jayewardene, The Regime ofIslands in International LawMartinus Njjhoff Publishers,
?4 Dordrecht/BostodLondon.1490, p.419.
CharneyrPr Iexander,op. cir.,VIp. 1021, - 51-
ownership and sovereigntyof the island35.To the contrary, other smallislands, notably
those inAdam'sBridge, appeal-to have been accorded fuIl effect.
(4) The deIimitation line agreedin the 1977 Agreementbetween Greece and Italy on the
Delimitation of the Zones of the Continental Shelf in most parts does not mirror an
equidistance line. As regards the various Greek Ionian islands, it should be recalled
thatsomeislands were given fulleffect (Corfu,Kefallinia and Zakynthos), the Otran to
Channel islands (in parhcular Fanos (Othonoi) Island, which is located approximately
10n.m.fromthe mainland) were given 75% effect, whe~easthe mare remote island of
Starnphan( ione of the Strofades Islands) was given half-effect. However,as noted in
the commentary on this agreementby Charney & Alexander, the reduced effect of
certainislands is "compensated for el~ewhere"~~.
(5) The Agreement between Italy and Yugoslavia Concerning the Delimitation of the
Continental Shelf of 1968 attributed a reduced effect to certain Yugoslav and Italian
islands. However, it should be emphasised that,unlike Serpents'Island, these islands
were located in the middle of the maritime area to be delimited between the two
States'opposing coasts, and the Yugoslav islands were relatively dstant from the
Yugoslav
(6) Similarly, in respect of the Agreement between Italy and Tunisia Relating to the
Delimitation of the Continental Shelf of 1971, which likewise concerned the
delimitation of maritime areas between opposing coastlines, the Italianislands were
locatedin the middle of thearea to be delimited and,for themost part, were closer to
Tunisia than to Italy. Moreover, it is important to recall that, as noted in the
commentary by Charney & Alexander,"lilt is commonly said that Italy l..J gave up
rights on the continental:shelves of its islandsin exchange for a widerpackage deal
with Tunisia resolving variouspolitical and economic questions. This included also a
fishing agreement [..]"3s.Aside the islands of Lampione, Lampedusa, Linosa and
Ibid.,Vol11p. 1412.
36 Ibid ..1595.As is evidentfromthe U.S. State DepartmenLimits isheSeas study most pointsare
approximately equidistant from the small Greek islands and the Italimainland (availableat
~~~.law.fsu.edullibrary/coIl incets).nlZimits
37 SeeCharney 8LAlexander,op,cif.Vol. 1p. 1633.
38 Ibid.,p1612. Pantelleria,it should also be noted that Article 1 of the agreement stated that the
delimitation was accomplished by "the median line [...] taking into account islands,
idets, and low-tide elevations": thus the small islands af La Galite, Gatitons de I'Est,
Cani, Zembra, Kuriate (Tunisia) and Toro, Cavoli and Marettimo (Italy) were given
full effect, along with the Tunisian low-tide elevationsof MarukaandElMzebW9.
Regardingthe 1988Agreementbetween Sweden andthe U.S.S.R. on the Delimitation
(7)
of the Continental Shelf and the Swedish Fishing Zone and the Soviet Economic Zone
in the BalticSea, the questionof the treatment of the islands of Gotland and Gotska
Sandijncannot be separated from extraneous political issues. As stated by Charney &
Alexander, "[t]he outcome of the political compromise could perhaps best be
translated by stating, in the spiritof the political compromise,that the islands were
onlytakeninto account for about75 per~ent"~.
(8) Regarding the 1968 Agreement Concerning the Sovereignty aver the Islands of A1-
'Arabiyah and Farsi and the Delimitation of the Boundary Line Separating the
SubmarineAreas Between SaudiArabia and Iran, it should firstbe recalled that the
agreement resolved a political dispute over the sovereignty of two small islands and
that equal effect was given to the Saudi island of Al-'Arabiyah and the Iranian island
of Farsi.Although Iran'sKharg Island was reputedly given half effect (although this is
not spelledout in the document), thisresult must be viewed in the context of the fact
that the relevant area (where the effect of Kharg Island an an equidistance line came
into play) was highly prospectiveand that both States had awarded oil concessions in
that area. Thus, the boundary line finally agreed between the parties was equidistant
between the States' respective claim lines - indeed, itwas subsequently modified to
apportion equitably the petroleum structure to which both States had laid claim4'.
l
(9) Similarly, the treatment of the Qatasi island of Daiyina in the 1969 Agreement on
; Settlement of Maritime Boundary Lines and SovereignRights over Islands between
i
39 Ibid., p. 1615.
40 Ibid ..2062. Thispresumably influencedthefactthatthe island of Gotlawas similarlygiven only
75% in theAgreementon the Delimitatiof the ContinentaShelfbetween Polandand Sweden signed
shortly afterwardsin 1989. However, as is mentioned below, in the latter agreementhe small
41 uninhabited islaof Utklippenwas givenh11 effect.
Ibid.Vol. 11p. 1522. Qatar and Abu Dhabi must be considered in the light ofthe context of the agreement
which settledon a global basis territorialdisputes between the parties (inrelation to
Daiyina and other islands) and provided for equal rights to the AI-Bunduqoilfield, As
noted by Charney & Alexander, "[e]conomic considerations motivated the
delimitation and to a certain extent influenced the location of the boundary"42.
Moreover,Jayewardene comments that this agreement does not representa good
exampleof a formal delimitation technique43.
(10) As regards the 1974Offshore Boundary Agreementbetween ban and U.A.E.(Dubail,
itshouldfirst be noted that the agreed boundary was not an equidistance line44T . o the
extent the line approximated to equidistance, it was one that ignored the effect of
islandsbelonging to both Iran(otherthan the 22nauticalmile arc around Sirriisland)45
and U.A.E.(SirAbuNu'ayrisland). Thus, the location of both parties'islandsresulted
in thembeingoffset against each other.
(11) The 1994Agreement between Finland and SwedenConcerning theDelimitationin the
hand Sea and the NorthernPartof theBaltic Sea of the Finnish ContinentalShelf and
Fishing Zone and the Swedish Economic Zone established a boundary that was not an
equidstance line, but based primarily on a pre-existing treaty46.In any event, the
relevanceof the factthat the partiesattributed no effect to the Bogskk Islands (which
arerelativelyremate from the main islands of the hand group)is undermined by the
fact that these islands were given full effect inthe 1980 Agreement between Finland
and the U.S .S.R.".
(12) The reIevance of the Agreementbetween the Dominican Republic and the United
Kingdom concerning the Delimitation of the maritime boundary between the
Dominican Republic and the Turks and Caicos Islands is unclear. The agreed
boundary between the small British Dependency (with total relevant coasts of
42
43 Ibid.,Vol.1p. 1544.
Jayewardene,op. citpp.437-438.
44 Charney& Alexandero,p.cif.Vol. 11,p. 1533.
45 Iranhadclaimeda 12 nauticamileterritorisea.
46 Charney & Alexander,op.cit., VolI11(1998), p2539.See alsoVol. 11,pp.1945-1957 forthe 1972
Agreement.
41 As notedbyProsper Weilin hisessay,GeographicConsiderationsinMaritime Delirnitufion,published
inCharney & Alexander,op.cit.Vol.1,pp. 115-130atp,128. 42.5 n.m.) and the Dominican Republic (of which the length of the relevant coast is
about 155 n.rn.1was located some distance to the north of a mehan line, and is
described by theBritish negotiatorsas havingbeen a "pragmaticsolution"48.
Romania appears to rely particularly on the 2004 Sino-Vietnamese Agreement on
(13)
Maritime Boundary Delimitation in the Gulf of Tonkin, notably the fact that the
Vietnamese island of Bach Long Vi was attributed allegedly a 25% effect. However,
the important distinction between this islandand Serpents'Island is thatBach bng Vi
is a mid-ocean island, almost equidistant between the parties'respective coasts4'.As
regards the island of Can CO,although this island (which was given 50% effect) was
located relativelyclose to the Vietnamese mainland, the reduced effect of this island
hasbeennoted to havebeen "obviouslya negotiatedcornpr~mise"~~.
l' (14) Similarly, the Ashmore Islands, which were attributeda 24 n.m. belt of continental
shelf/EEZ in the 1997 Agreement between Australiaand Indonesia establishing an
Exclusive Economic Zone and Certain Seabed Boundariesarelocated mid-ocean,
significantly closer towestern Tirnorthan the Australianmainland. Any analogy with
Serpents' Island, which lies close to and opposite the Ukrainian coast and in a
geographic situation where the mainland Ukrainian coast is aleast three times as long
as the corresponding Romanian coast,isconsequent1ymisplaced5'.
(15) The treatment of the islandsof Lubainah Al-Krtbirah(SaudiArabia) andLubainahAl-
Saghirah (Bahrain) in the 1958 Agreement between Bahrain and Saudi Arabia
concerning Delimitation of the Continental Shelf must be regarded in the context of
the fact thatsovereignty over the islands had been disputed prior tothe Agreement.h
any event, these islands were not discounted, as Romania suggests, but rather they
appear to have been given equal importance and used as boundary turning points.
48 'Charney B Alexander,op. eitVol.111p.2239.
45 ISee the mappublishedwith the interviwith Vietnam'sForeignMinisterpublished on 7 J2004 by
ThanhnienNews, Annex 19,Vol.2.
50 'Zou Keyuan, "The Sino-VietnameseAgreementonMaritimeBoundary Delimitation in the Gulf of
Tonkin",36 Ocean Development artd InternatioLAW2 ,005,pp.13-24,atp. 15,Annex20, Vol2.
51 Chasney& Alexander, opcit., VoIV (2002)p.27 13. Romania also omits to mention thatother small islands belonging to the pmies were
given fuIleffect inthis agreements2.
Romania's reliance on the fact that Hans Island was disregarded in the 1973
(16)
Agreement between Denmark and Canada Relating to the Delimitation of the
Continental Shelf is confusing since sovereignty over the island was lsputed and,
consequently,the boundary in the area of the island was not delimiteds3. Asregards
the treatment of Lady Franklin Island (which appears tohavebeen given less than full
effect),this must be considered in the contextofthe fact that its locatiwas relatively
remote fromCanada'scoast.
(17) The reference to the treatment of the enclaved Australian islands of Boigu and Saibai
in the 1978Treaty between Australia and Papua New Guinea ConcerningSovereignty
and Maritime Boundaries again wouldappear to bequite misplaced since theseislands
were located very close (within a few hundred yards) to the Papua New Guinea
mainland. Otherthan these enclaves, itwould appearthat the small islandsin the area,
including the uninhabited islands of Kawa, Mata Kawa and Kussa, which were
effective]ycededto PapuaNewGuinea,were givenfull effect as base point^^^.
C. Examples of State Practice Where Full or Substantially Full Effect Was
Givento SmallIslands
4.61 The most remarkableaspect of Romania'soverview of State practice is its failureto
refer to any examples of agreements where islands were given full effect or where a
substantial disparity ithe coastal lengths oftheparties was a relevant circumstance affecting
the course of the delimitation line, This omission is allthe more egregious given the
impressive body of such examplesas compared toinstances where small islands were given
lessthan fulleffect.
52
53 Chxney & Alexander, pcit.Vol.11,pp.1489-1497.
54 lbid,, Vol.p.372.
Ibid., p931-932.4.62 Indeed,Romania's blanket statement that "[W]hen the equidistance method is used, the
predominanttendency is to give no or little effect to [small island^]"'i^s contradicted by the
numerous examples of delimitation agreements where small islands are used as basepoints
when offset by isIands of similar size"s6A . side such examples, the geographyof which is
quite distinct from that in the present case, there nevertheless exist numerous cases where
small islands are given fulleffect even when opposing much larger features or in the context
of delimitation between adjacentStates. Ukraine will first list severalexampleswhere States
with adjacent coasts have agreed to give islands, some of which are very srnall, full effect
beforeturningto "oppositecoast" examples.
(i) Adjacent Coasts
(1) In respect of the maritime boundary between the U.S.A. and Mexico (established
provisionally by a 1976exchangeof notes and re-stated in the l978 treaty), as stated
by Charney& Alexander,"[all1islands and low-tideelevations were given full effect
in the determination of the equidistant linesflS7T . hese included the small Mexican
islands off the Arrecife Alacranin the Gulf of Mexico (located about 75 n.m. of the
Yucatan Peninsula), as well as, in the Pacific, two islands located approximateiy 60
n.m. off the U.S. mainland, along with the Mexican island of Guadalupe,situated
about 145 n.m. off the mainlandcost5'.
55 RM, para.8.105.
56 See, for examplethesmall offshoreidandsof lsladelCoco (Costa Rica) and MaIpelo (Columbia) in
the1984Agreement between Columbiaand Costa Rica,discussedin Charney &Alexander,up. cit., at
Vol. I,pp. 801-805; the small features usedas basepoints in the 1988 Agreement between the
Governmentof the Soloman Islandsand Australia, discussed in Chxne& Alexander atVol. I, pp.
977-982;the islandsused as basepoints the 1980Treaty between the UnitedStatesof Americaand
the Cook Islands, discussed inCharney& Alexander at Vol.I, pp. 985-990; the 1983 Agreement
betweenFrance (New Caledonia)and Fiji, discussed iCharney& Alexanderat Vol. I, pp. 995-999;
the 1983Convention on Maritime BoundariesbetweenFrance and the United Kingdom, discussed in
Charne &yAlexander at Vol. I, pp. 1003-1008,in whia1basepoints were locatedon smallfeatures,
includingOena in respect of whichCharney& Alexanderstate: "Oeno,lying 75 n.m,from Pitcairn, is
about 1400m longand between300 and 1000m wide.Although uninhabiteditis visited regularly by
Pitcairn islanders for fishinwellas gathering coconuts and othfoods.Oeno isan island for the
purposesof international law"(p. 1005);the 1980Convention betweenFrance (Wallisand Futuna)and
Tonga, discussed in Charney dkAlexander at Vol.I, pp. F011-1015;the 1980 Treaty between the
United States (American Samoa)and New Zealand (Tokelau)discussed inCharney & Alexander at
I Vol. Ipp. 1125-1130; the1976 Agreement between Indiaand the Maldivesdiscussed inCharney &
Alexander at Vol. 11, pp. 1389-139 6nd the 1978 Agreement between Endia and Thailand on
Delimitationin the AndamanSea,discussed inCharney& Alexander at Vol. 11,pp. 1433-1439.
57 Charney & Alexander,op.cit.Vol. Ip. 428.
58 Ibid.Vol.I, pp427-445.(2) Anisland analogousin size to Serpents'Island is theIslade Lobos in Uruguay.Other
than a lighthouse, the only permanent human installation on this small island was
connected to the exploitation of a marine seal colony. Nevertheless the island was
attributedfull effect as a basepoint inthe 1973 Agreement between Argentina and
. Uruguayrelatingto the Delimitation of the River Plateand theMaritimeBo~ndary~~.
(3) With respect to the British Orders in Council that established maritime boundaries
between Sarawak,North Borneo and Brunei in 1958,Chamey & Alexander note that
"[s]ofar as can be determined [...lall islands ithevicinity of thecentral andeastern
boundariesweregivenfull effect in constructing a boundary which lies veryclose to a
strict line ofequidi~tance"~.
(4) In the 1980 Agreement between Tndonesiaand Papua New Guinea Concerning the
Maritime Boundary, all islands, including thesmall Papua New Guinean island of
Wuvulu,which islocated some 80 n.m. offshore, were given full effect. As noted by
Charney & Alexander, "in the delimitation of the present boundary, islands have
significantlyaffectedits actual l~cation"~'.
(5) The 1968Treaty between the German Democratic Republic and Poland Concerning
the Delimitation of the Continental Shelf in the Baltic Sea gave the small island of
GreifswalderOie fulI effect even though this had a pronounced effect onthe location
of the boundary. The island is 1.5 km. long and 750 m. wide. Although the 1989
Treaty between the two States was not expressly based on equidistance, as noted by
Charney & Alexander, the island can neverthelesbe seen to have played a role in the
drawingof a single maritime boundary(which is located even furtherto theeast of the
1968 boundary line)62.
59
60 Ibid., Vol.I,p.760.
61 Ibid p.938.
62 Ibid., p. 1041.
Ibid.Vol. 11pp.2005-2022.The I989boundarywas confirmedby theFederal Republicof Germany
in 1980. (ii) Opposite Coasts
(l) As noted in the commentary by Chmey & Alexander, in the 1977 Maritime
BoundaryAgreement betweenthe U.S.A. and Cuba, "[flortheportion of the boundary
that was an equidistant line, all islands and rocks were given full weight in its
determination". These included the small islands forming he FloridaKeys, which
extendto over 50 n.m.from theFloridamainland63.
(2) Although apparently not based upon strict equidistance, the 1977 Treaty on
Delimitation of Marine and Submarine Areas between Colombia and Costa Rica
accorded equal weight to the small Colombian archipelago of Albuquerque and the
CostaRica mainlandH.
l
(3) The Treaty on the Delimitation of Marine and SubmarineAreas Between the
i DominicanRepublic and Venezuela of 1979 used a number of islands, including the
Los Monjes Archipelago of small islands, as basepoints. Charney & Alexander's
i
conclusiondeserves to be quotedin full:
"Thus, the Dominican Republic-VenezueIa Agreement of 1979 constitutes
another significant example of one of the main distinctive features of the
process of delimitation of maritime areas in the Caribbean. As might be
expected, it predominantlyinvolves islands. A cleartrendmay be observed,
both in the western and eastern Caribbean, towards fullconsideration of all
islands whatever their characteristics mbe"".
(4) It should be emphasised that the Venezuelan Aves Island (580 m. X 150 m. at its
widest, 50 m. at its narrowest and3 m. of maximum altitude) was given full effect in
agreementsentered into with Venezuelaby the United StatesbG and The Netherland~~~,
aswellas in the 1980Delimitation Treatybetween Venezuela and France in which it
1 was given the same weight as Martinique.As noted by Charney& Alexander,"The
l
" ~ibid.,Vol.I,p.419.
M IIbid., p. 468.
65 1Ibid.,p.582.
" IThe 1978 Maritime Boundary Treaty between the United States of America and the Republic of
, V,enezuela,discusatVol.1,pp.695-696.
67 I The 1978 Delimitation Trbetween thKingdomof theNetherlands and theRepublicof Venezuela,
, discusseaVol. I, p. 623. France-Venezuela treaty constitutes a very important precedent regarding the legal
regime of islands and the way they are to be considered within the framework of a
maritime boundary delimitation. It should be borne in mind that the treaty was
negotiated and signed when there was alreadycertainty as towhat the provisions of
the 1982United Nations Conventionon theLawof the Sea would contain. It entered
into force after the adoptionby UNCLOS II of the 1982C~nvention"~~.
(5) As between Colombiaand Costa Rica, Isla del Coco was given full effect in drawing
the equidistanceline between Costa Ricaand themuch larger Galapagos Islandsin the
1985 Agreement between Costa Rica and Ecuador relating to the Delimitation of
Maritime AreaP9.
(6) In the 1982 Agreement on Marine Delimitation between Australia and France (New
Caledonia),Australia's Middleton Reef, a mid-oceanic low-tide elevation situated 125
n.m.offshore, was given full effect as one of its basepoints in drawinthe equidistant
line with New Caledonia. It would appear that equivalent weight was given to
Australia'ssimilar1yremoteNorfolk Island7'.
(7) In the 1974 Agreementbetween Japan and South Korea Concerningthe Establishment
of a Boundary in the Northern Part of the Continental Shelf Adjacent to the Two
Countries, numeroussmall islands appear to have been given fulieffectand gave rise
to the many turning points in the equidiqtantline used in drawing the maritime
boundary71.
(8) In the S982 Agreement on Marine Delimitation between Australia and France
(KergueIenIslands) the small Australian islands of Heard and McDonaldwere given
full effect vis-6-visthe French Kerguelen Islandseven though they were considerably
68 Charney & Alexander,p. ciVol.I, p.608.
64 Ibid.,Vol. pp.819-828.
Ibid.p.907.
71
l2 Ibid.pp.1057-1089.
Ibid.,Vol.1pp.1.185I194.(9) Regardingthe 1971 Agreement between Australia and Indonesia Establishing Certain
Seabed Boundaries, islands belonging to both parks were granted full effect,
includng the small uninhabited islets of Pulau Enu, New Year Islet and Crocodile
Island7'.
In the 1974Agreement between India and Indonesia, all insular features were given
(10)
full effect, including the small, uninhabited wooded island of Pulau Rondo and the
small, uninhabitedrocky island of PulauBenggala, neither of which has an area in
excessof 1sq.km.These arethe onlyIndonesian featuresused as basepoints".
(lI) The small islands of Pulah Weh (5 n.m. from Sumatra) and Koh Racha Noi (15 n.m.
from theThai mainland), which are not known to have anypermanentresidents, were
given full effect in the 1971 Agreement between Indonesia and Thailand Relating to
the Delimitation of a Continental ShelfBoundaryin the Northern Par of the Strait of
Malacca and in theAndaman Sea7j.
(12) In the 1971Agreement Concerning DeIimitation of theContinental Shelf between Iran
and Bahrain,both the Iranian islandsof Nakhilu and Jabrin and the Bahrainiisland of
Jazirat Al Muharraq were givenfulleffect76.
(13) In the 1965Agreement between Finland and the U.S.S.R.Concerning the Boundaries
of SeaAreasand of the Continental Shelf in the Gulf of Finland, asnoted by Chamey
& Alexander,"[als a general rule, islands and islets appear to have been given full
effect"". Similarly, in the subsequent 1967 Agreement between the two States,
numerousislands located outside the Gulf of Finland were givenfull effect despitethe
fact that theywere srnaIlerthan those within theGulf and were marenumerouson the
Finnish side of the boundary".
73
74 Ibid ..1197.
75 Ibid.p. 1365.
76 Ibid.pp. 1455-1463.
77 Ibid .,1483.
78 Ibidp..1962.
Ibid.pp.1971-1978. -61 -
(14) In the 1989 Agreement on theDelimitation of the Continental Shelf and the Fishery
Zones betweenPoland and Sweden the small uninhabited island of Utklippan (size of
approximately 0.12 sq. km.), situated approximately 9.5 n.m. from the mainland, was
givenfulleffect79.
(15) The 1988Treaty between Denmark and the German Democratic Republic attributed
full effect to a number of islands, including the small German islandof Greifswalder
Oie (which had been recognised as being entitledto full effect in the 1968Poland 1
G.D.R.treaty, discussed underitem (i3( ab)ove)80.
(16) In the Muscat Agreement on the Delimitation of the Maritime Boundary between
Oman and Pakistan signed in 2000, Sail Rock (Gurab), located just off thePakistani
coastal Astola Island, was used as a basepoint. Despite the fact that Astola Islandis
small (2 n.m. in length)and uninhabited, Charney & Alexandernote that"There is no
doubt thatAstoIa Island is an island in theterms of Artide 121.3 of the 1982 LOS
Conventionor thatSail Rock isa feature from whichextended maritime claims can be
made"".
In the 1999 Agreement between De.nmark and the United Kingdom relating to the
(17)
Maritime Delimitationbetween the Faroe Islands and the United Kingdom, itappears
that varioussmall islands were taken into account, including Sule Skerry(0.01 sq.
km., located 30 n.m. to the northof the Scottish mainland), Rona (1.2 sqkm., located
39 n.m. to the north of the Scottish mainland), Sula.Sgeir (0.12 sq. km., located 34
n.m, to the north of island ofLewis in the Outer Hebrides) and the Flannan Islands
(0.39 sq.km. ,ocated 16 n.m.to the west of the islanof Lewis)'*.
4.63 As illustrated by this survey, there are many examples reflected in the practice of
States where islands have been given full effectin the drawing of equidistance lines. This
practice extendsto the treatment of small, uninhabited islands even if they are located at a
substantial distance from the coast of the nearest mainland or of a larger island, and is
79
80 Ibid V.,l11p.2080.
$1 Ibid.p.2090.
82 Ibid.Vol. IVpp.2812-2813
Ibid., pp.2962-2963. reflehted in agreements betweenStateswith adjacent or opposite coasts. Given this patternof
State!practice,it follows that thereare no grounds for Romania's argument that State practice
!
invdabIy dictates that an island of the strategic and historical importance of Serpents'Island,
locatkdclose to and opposite theUrcrainiancoast, should not be given effect in delimiting the
contihental shelf/EEZ boundary between Ukraine and Romania, quite apart from the
additionalgeographic andother relevant circumstances which militate infavour of aboundary
substintidly atodds with the claim advanced byRomania.
I
(iii) Examples Where the Length of the Coasts Was an Important
Factor
l 4.64 A further salient omission in Romania'sdiscussion of State practice is its failure to
1 mfer to examples of State practice when the disproportionality of the lengths of the parties'
relevant coasts wastakenintoaccount in maritime boundary agreements. As noted by Legault
l
andHankey:
, _ 'Troportionality has a double role. In one role, a comparison of the coastal and area1
I I ratios is sometimes used as a test of the equity of a provisional delimitation. In the
other role, an assessment of the relative lengths of the coastlines may be one of the
l factors taken into accountin determining the method used to effectthe delimitation"".
I
l
i This distinction was set out clearly by the Court in itsJudgment in the LibydMaEtca
! case"!lHowever,asnoted by theauthors, in State practice "it is difficult to determine withany
1
dewk of precision whatrole it [proportionality]plays in negotiatedboundaries"".
l
I
4.66 1 Thus, although proportionality or disproportion appearsto have played an implicit role
in thk Agreement between Italy and Yugoslavia Concerning the Delimitation of the
Contiiental Shelf of the Two Countries of 196gg6,the 1972 Agreementbetween Brazil and
Umg?ay Relating to MaritimeDelimitation", and the 1981Delimitation Convention between
l
83 L. Legadt and B. Wankey,Method, Oppositeness and Adjacency,and Proportionali~ in Maritime
IBoundnq DelimitationinCharney & Alexander,op.cit.Vol. Ipp. 203-21,atp.2 17.
84 :ContinentalShelf{Libyadrab YamahiriydMalra),Judgment, I.C.JRepoHs1985, p.49 atpara.66.
85 ILegaultand Hankey,in Ckarney& Alexander,op. citVol.I, p.219.
86 :Charney & Alexander,Vol.11,p. J627.
'' IIbid V.,l.Ip. 785. France (Martinigue) and Saint LuciaSg,this canbeonly be inferredfrom the circumstances of
1 those agreements.
4.67 However, two examples of State practice where disproportion in coastal lengths
played adecisive rolein determiningthelocation of the agreedboundary deserve to be cited:
l In the Convention between France and Spain Concerning the Delimitation of the
ContinentalShelf in the Bay of Biscayof 29 January197489 the agreed boundary line
departsfrom an equidistantline due to the greater length of the French coastal facade.
As discussed by Legault and Hankey, an account published by an advisor to the
Spanish negotiating team confirms that the greater length ofthe French coast was a
decisivefactor inthe delimitationw.
In the 1978Delimitation Treaty between the Netherlands (Netherlands Antilles) and
Venezuela9', the portion of Venezuela'scoast facing the Netherlands Major Antilles
was longer than the southern coastalperimeter of the Netherlands islands by a ratio
of 7 to 3,and the inaritimeboundary was thus agreed thatallocatedto the Netherlands
Antilles 56 percent of the maritime area that would have been allocated by strict
equidistance. Thus, in this agreement, the parties acknowledged that the
disproportionality of the parties'coastal lengths was a determinative factor in the
location of themaritime boundary.
I D. Conclusionsto BeDrawnfromState Practice
4.68 In the light of the foregoing discussion, reference to State practice is of limited
assistancein determining an equjtable delimitation in this case.Each case is unique and a
product of itsown individualgeographicand other facts. This case isno differentIt isclear
thatthe basicstartingpoint for delimitationisthe geographic context of the particular dispute
andthedrawing,as a first step in the delimitation process, ofaprovisional strict equidistance
88
89 Ibidp..591.
40 IbidV.ol.11p.1719,
91 Ibid.pp.219-220.
Ibid..Vol.I,615.line.This issue is taken upin Chapter 7. Thereafter, it is necessary to weigh upthe relevant
circumstances,geographicandothers, which characterize this particular case (Chapter 8). CHAPTER 5
THE DIPLOMATIC HISTORY
I Section 1, Introduction
5.1 In its Memorial Romania has set out an account of the historical backgrothe to
~ present dispute, and has also sotohshow that Romania and the Soviet Uni(and now
Ukraine)agreed in1949thatthe Soviet Wnionltflcraineno continental shelEEZr rights
to the southofthe semi-circular 12 naudcal mterritorisea boundary around Serpents'
Islandtoapoint lyingvirtualdueeast of Serpents'Island.
1 5.2 InthisChapter, Ukrainwill firaddresthe historicbackground tothedlsputand
will try to correct some of the inaccuracies in Romania's presentation of the historical
circumstances(Sectio2).h Sections3 through6Ukraine will show that the 1949agreement
on which Romania relies did not have the effect which Romania claims, and that no
~
subsequent Romanian agreements wittheSoviet Union or Ukraine hadany suceffectIn
Section 7 Ukrainwill discusRomania's 1997 notification of its straight baselines to the
United Nations, which similarly go to undermine Romania's interpretatof the1949
~
1 agreement. Ukraine will then addrthe cartographic evidence reliedbynRomania in
Section8,which is suppIemented byanAppendix to thisChapter inwhich the individual
maps filedby Romania in supporof itsargument regardinthe allegedelimitation around
Serpents'Island are discussed individually. SeccontainsUkraine's conclusions to this
Chapter.
Section 2. BriefReviewof Historical Developments
5.3 ThroughoutitsMemorial, Romania complains thairwas the victimof a number of
politicaland historical injustices, including the incorpofaSerpents' Island in the
territorofthe USSR andthe establishmentothemaritime bounday bythe September1949Procts Verbalwhich in i ts view resulted in RomaniaIosingamaritime area of approximately
70 squarekilometers'. Consequently,Romania argues, it cannot suffer more injustices than it
already has, and requeststhe Courtin thiscaseto achieve a solution tdcing intoaccount "any
historicalor political prejudice previouslinflictedH2.
5.4 Inlight of this request, Romania has somewhat surprisingly dedicated two whole
chapters of its Memorial to what it admits are no more than "itsown historical frustration^"^.
However, as Romania itself adrmts whenit states thatit is notasking "forthereversal of prior
transactionsm4 t,he equitabhess of earlier territorial settlements as well the appreciation of
past deeds of sovereign powers are outside the scopeof thiscase.
5.5 Romania devotes a rather long section of Chapter 3 of its Memorial to the period
1700-1939 and particularly to the Russian-Ottomanrivalry In the relevant area and how this
affectedSerpents"sland5, presumablyto recall that - at one point in time - Serpents'Island
was under its sovereignty. Although Romania's historical account has at least the merit of
underscoring the gea-strategic importance of Serpents' Island in the region, it is legally
irrelevant.
5.6 The Parties agree that Ukraine's sovereignty over the island is not in question and
Romania is not questioning the valihty of the 1949 Procss Verbal which it recognizes as
being one of the relevant agreements between the Parties. Nonetheless, given Romania's
distorted version of events, it may be useful toclarisf ome of the historical background in
order torestore the proper balance.
5.7 Itshould be noted that the relevant historical developments relatedto the problem of
recent maritime delimitation in the Black Sea between Ukraine andRomaniastarted in the
19" century. At the time, neither Ukraine nor Romania existed as independent States and
played no active role in international politics. However, the geopolitical struggle which
1
2 1 Ibid.,para.5.19.
3
4 Ibid.,para. 5.16.
5 Ibid.,par5.19.
l Ibid.,paras.3.4-3.19. developed in the area periodically triggered important changes concerning Ukrainian and
Romanianethnic territoriesandborders.
5.8 After the Russo-Turkish wars in the early 19* century, Russia obtained title over
Bessarabia from the Ottoman Empire through the Bucharest Treaty of Peace of 181z6.After
the signing of the Treaty of Adrianopale in 1829'Russia assumed controt of the Danube
~'
Delta and Serpents'Island. This was an important gain as it enabled Russia to control the
lowerDanube; moreoverSouthern Bessarabia was mostly ethnically Ukrainian.
5.9 Following its defeat in the Crimean war, Russia ceded Bessarabia to the Ottoman
Empire by the Treaty of Paris of 18568 and the Protocol signed in January 1857'. By this
Protocol, Serpents'Island also passed to the OttomanEmpire. This was the firstinternational
agreement which referred to Serpents' Island. It is important to note that according to the
Protocol "that Island isto be considered as an appendage to the Delta of the Danube, and
must, inconsequencefollow its destinarion"(emphasis added). This was confirmed in Article
m of a further Treaty relating tthe Frontierin Bessarabia, the Isle of Serpents and Delta of
theDanube, signed at Paris in June 1857".
5.10 After Russia's victory in the war with Turkey in 1877-1878, the Ottoman Empire
suffered considerable political and territorial losses in the region. Weakened by military
defeats and internal crisesthe OttomanEmpire was forced torecognize the independenceof
the Romanian Principality, which emerged on theSouthern borders of the Russian Empire
and Austro-Hungary asa resultof the unification of Moldova and Wallachia. By the Treaty of
6 Treatyof PeacebetweenRussia and Turkey,Bucharest,16(28)ay 1812,Consdidated TreatySeries,
Vol.62,p. 25.
7 Treaty of Peace between Russand ~urke~,AdrianopoIe,2(14) Septembe1829,ConsolidatedTreaty
SeriesVol. 80,p.83.
a General Treaty fortheRe-Establishment of Peacbetween Austria,France, Great Britain, Prussia,
Sardiniaand Turke ynd Russia, Paris 18 (20) March 185ConsolidatedTreaty SeriesVol. 114,
9 p.409.
ProtocoCofConferencefixingtheBoundariesofRussia,thePrincipatities andTurkey,between Austria,
France,GreatBritain, Prussia, Russia, SardinTurke yaris, 6Januar1857,ConsolidatedTreaQ
SeriesVol. 116,p.155.
10 Treaty between Austria, France. Great Britain, Prussia, Russia, anddTurke yelativto the
Frontier iBessarabiathe Isle oSerpentsand theDanube Delta,Parts, 19June1857, Consolidated
TrearySeries, Vol. 11p.59. Berlin of 13July 1878", Russia againobtained title over Bessarabia, while Romania acquired
sovereignty over islands in the Danube Delta and Serpents'Island, since it was located in the
vicinity of theDelta.
5.11 Up to the begnning of the 20" century, there were no dramatic geopolitical changes
involving Bukovyna,since from 1775it was incorporated into the Austro-HungarianEmpire
and mled by the Habsburgs,firstas part of the Ukrainian province of GaIicia, and later as a
separatecrownland.
5.12 Itshould be noted that immediately afterthe beginning of World War I, the Russo-
Romanian Secret Agreement on Benevolent Neutrality of Romania was concluded on 1
October 191412.According to the Agreement, a "population majority principle" was tobe a
basis for the territorial divisionof Bukovynabetween Russia and Romania upon the defeat of
the Austro-Hungarian Empire. During World War I, the Secret Alliance Treaty was signed
between France, Italy,Russia and the United Gngdorn,on the one hand, and Romania, on the
other". According to thisTreatyRomaniaundertook the obligation to declare war on Austro-
Hungary. In return, the Allied Powers recognized Romania's rights to annex territories of
I Bukovynasituated to the South of the river Pmt. Hence it was agreed that, should the Austro-
HungarianEmpire be defeated, the territoryof Bukovyna was to be divided between the
RussianEmpire and Romania in accordancewith the principle of ethnicity.
5.13 It should be noted that, throughout their history, Bessarabia and Bukovyna belonged
to various States and consequent1 y have developed as mu1 tiethnic entities with Southern
l
l BessarabiaandNorthernBukovynabeing settledmostly by Ukrainians.
5.14 Takingadvantageof the disintegration of the Russian and Austro-Hungarian Empires
andthe weakness of newly formed Ukrainian States - the Ukrainian People's Republic, the
l ..
Western Ukrainian People'sRepubIicand the Ukrainian Soviet Republic,Romania,obsessed
, I I Treaty betweenAustro-Hungary,France,Germany,Great Britain, Italy,Russia and Turkey forthe
Settlemenof Affairs inthe East,Berl13,July1878,ConsolidatedTrea~ Series,Vol.153,p. 171.
12
CollecrionofTreatiesbetween Russia and OtheStates,11856-1917M, oscow,StatePublishing House
I3 ofPoliticalLiterature,195pp.426-427.
Romsnja in RIzboiul Mondial1916-1919,Vol. 1,Elucuregti,1934.with the idea to create "a Greater Romania -Romania Mare", illegally seized the ethnic
Ukrainian territories of SouthernBessarabia and NorthernBukovynain 1918.
5.15 At the begnning of 1918,in violation of generallyrecognized rules of international
law reIating to State succession,and ignoring the right of the Ukrainian population in the
Southern part of Bessarabia to self-determination, Romania occupied the entire territory of
Bessarabia.Despite the protest of the Government of the Ukrainian People'sRepublic14 and
the Government of Soviet Ru~sia'~a ,s successor States of the RussianEmpire,Bessarabia
was incorporated into Romania'sterritory as one of its ordinary provinces on 10 December
1918.
5.16 At the end of 1918, Romania occupied Northern Bukovyna thus disregarding the
Russo-Romanian Benevolent Neutrality Agreement of 1914 and the AllianceTreaty of 1916
withFrance, Italy, Russia and the United IGngdom which recognized therights of Romania
only to that partof Bukovyna which was populated by Romanians.
5.17 Moreover, Romania ignored the will and choice of the Ukrainian populationof that
region, as well as arrangements on Bukovyna reached between representatives of Austro-
Hungarian Government and the Ukrainian and Romanian communities in the courseof the
disintegration of Austro-HungarianEmpire.
14 ResoIutionof theCentral RadaconcerningAnnexation of Bessarabiby Romania, 13 April1918; Note
of Protestby Vsevolod HoEubovych, the Chairmenof the Council of People'sMinisters (of the
Ukrainian People's Republic) to the Government of Romania with Regard to Annexation of the
Bessarabianterritory,Apri1918;Note of the Governmentof theUkrainian StattotheGovement of
Romania in reply of the Diplomatic Note of theLast of 20 April 1918, sentto the Romanian
Governmenton 5 June 1918:see V.].Serhiichuk, Non-consciousnessfUkraine. The World'sAttilude
toward UkrainianSrat~haod:A Look at 1917-1921, with Analysing the Today,L'viv,"Svichado",
2002,pp.469-470,473-476.
IS A Resolutionof the Councilof People'sCommissarsRegardingRuptureof DiplomaticRelations with
Romania, 13(26)January I918;Protestof theSoviet Government againsthe AnnexationofBessarabia
by Romania, ISApril 1918:Documents ofrhe ForeignPolicyofthe USSR,Moscow, 1457,Vol. I, pp.
89-90.248-249.A WirelessMessage of the People'sCommissarfor Foreign Affairsof the Russran
SovietFederal SocialisRepublic to theChairmanof the Councilof Ministers of Romania with the
protest againannexationof Bessarabia27 November1918:Struggle ofWorkingPeople ofBtrkovyna
forSocial and Nationa liberationand Reunion with Ukrainian SSR, 1917-1945, Docurne~zfsand
MaterialsChernivtsi, Regional PublishiHouse, 1958,p.133.5.18 On 3 November 1918, the Ukrainia People's Assembly of Bukovynaadopted a
Declaration to unite Northern Bukovyna with the Western Ukrainian People's Republic, a
new1yproclaimed Ukrainian State16.On 5 November 1918, the UkrainianPeople'sCouncil of
Bukovyna adopted an Act establishing its authority over Northern BukovynaE7 . n
6November, arepresentativeof the Austro-HungarianCentralGovernment signedaProtocol
transfening all powers in Bukovynato representatives ofthe Ukrainian People'sCouncil and
Romanian People'sCouncil". On 6 November 1918, the Chairmen of the Ukraini aand
Romanian CounciIs issued a Joint Declaration on the supremacy of their authority in the
respective partsofBukovyna until thepeacefulterritorial ~ettlement'~.
5.19 However, on 11 November 1918, after suppressing armed Ukrainian resistance,
Romaniantroopsseized Chernivtsi, an important town in Bukovyna, and occupied itsentire
terstory. To justify its occupation, Romanian authorities hastily convened the Central
Congress of Bukovyna which, on 28 November 1918,declared the unificationof Bukovyna
with Romania. Despite Romania's claims, the peace conference at Saint Gennain on
10 September 1919 recognized Romania's right only to the part of Bukovyna settled by
Romanians.But later, on 10 August 1920,the Peace Conferenceat S6vres decided to cede all
Bukovyna to Romania. The Governments of the Western Ukrainian PeopIe'sRepublic, the
UkrainianPeople'sRepublic and the UkrainianSSR protestedthis action",
5.20 On 28 October 1920,Britain, France,Italy and Japan,on the one hand, andRomania,
on the other, signed the so-calledParis Treaty which recognized the sovereignty of Romania
aver Bessarabla.This triggered resolute protests from Soviet Ukraine and Russia. As early as
16 People's Vichd Bukovyna, 1918-1933, Documents and Papers of the RegionalScientifiand
Practical Conferencedevoted to the 75* anniveoftheBukovynaPeople'sViche of 18 November
1918, Chernivtsi:"PrPublishinHouse, 1994,pp. 116-17.
l7
18 , Ibid.,pp. 117-120.
19 Ibidp.,.120-121.
> Ibid., p121-123.
1 Note otheGovernment of thUkrainianSoviet SocialiRepublito theMinisterof Foreign Affaofs
Romania, 1 May 1919,JoinNtote ofthe Governmentof thRussianSoviet FederalSocialist Republic
and the UkrainiaSovietSocialist Republto the Minister of Foreign Affairs of Romania. 1 May
1919: SfruggleoWorking PeopleofBukovynafor Socialand NotionalLiberatioand Reunion with
UkrainianSSR, 1917-1941, Document and MaterinlChernivtsi,Regional Publishing House, 1958,
pp. 172-175.2 November 1920, the heads of the Russian and Ukrainian foreign services, in a joint
radiotelegram to the parties of the ParisTreatstatedthe following:
"SovietRepublics of Russia and Ukraine declare that theycannotrecognize as
legallybinding the agreement concerning Bessarabia as it was concluded
without their participationN2'.
5.21 Following the Romanian occupation of Southern Bessarabia and Northern Bukovyna,
an intense effort wasmade to denationalize theUkrainian population. The Ukrainian school
system was &mantled and the study of Romanian became compulsory.Ukrainian cultural
and civic life was restricted. The Ukrainian churcwas persecuted by the introduction ofthe
Romanian language into the liturgy. When Romania became an authoritarian State in 1938
the persecutionof the Ukrainians grew even worse,
5.22 Romania'srepressive anti-Ukrainian policy accompanied by its obstinate refusal to
negotiate and reach a fairand equitable territorial settlement with Ukraineand Russia, and
laterwith the Soviet Union, resultedin further tension andstalemate in relations. As a result,
there was no legally established State border between the USSR and Romania: before 1940
their territorieswerdivided by a provisionaldemarcation line.
5.23 Geopolitical changes that took place in Europe in the late 1930s and early 1940s
permitted the Soviet Union to restoreUkraine's legitimate rightsto Northern Bukovyna and
Southern Bessarabia. On the demandof the Soviet Union, Romania withdrew fmm the
occupied territories withoutany armed resistance in the summer of 1940.Accordingto the
exchange ofnotes between the USSR and Romania in June 194022,theterritoriesof Northern
Bukovyna and Southern Bessasabia were returned to the Soviet Union and became partsof
the Ukrainian and Moldavian republics.On thebasis of alaw adopted by the SupremeSoviet
of theUSSR on2 August 1 94OZ3 N,orthern Bukovyna and the Khotyn, Akkerman and lzrnail
districts oBessarabia predominantly inhabi red by Ukrainians were unitedwith Ukraine.The
rest of Bessarabiawas incorporatedinto a MoldavianAutonomous SSR, which subsequently
21 Documents ofthe Foreign Polofthe USSR,Moscow, 1959,p.312.
22 Annex23, Vol.3.
23
Collection of ValTreatiesAgreements and Convenriopls Concludeby rheUSSR wirk Foreign
StatesIssueX, Moscow:StatPublishingHouseofPoliticalLiterature, 1pp.229-230.was grantedthe statusof a unionrepublic. Afterthat, a borderbetweenUkraine andMoldavia
was establishedon the basis of thejoint submissionof the Ukrainian SSRand the Moldavian
SSR that was ratified by a decree of the Presidium of the Supreme Soviet of the USSR on
4 November194024.
5.24 At the same time, the USSR and Romania started to establishthe State border along
its Ukrainian andMoldavian sections. It shouldbe emphasized in this contextthat neither the
so-called Molotov-Ribbentrop Pact nor the Secret Additional Protocol concluded on
23August 1939between the USSR andGermanycontained any provisions establishing the
territorial settlemenconcerning the State borderbetween theUSSR and Romania.
5.25 The officiaI title othe Molotov-Ribbentrop Pact is the "Treaty on Non-Aggression
between the USSR and Germanyfl2'.It containedno provisions concerning territorial issues
and was aimed againstthird States. The Treatybecame voidafterGermany'sassault uponthe
USSRon 22 June 1941.
5.26 The Additional Protocolz6 was legally null and void from the moment of itssigning
due to the arbitral provisions concerning Estonia, Latvia, Lithuania, Finland and Poland.
Although Romania was not directly mentioned in thisdocument, Article 3 referred to the
USSR'sinterest regardingBessarabia. It isimportant to stress that the interest of the USSR
regardingBessarabiadid not ariseon the basis of the Protocol; it had existed long beforethe
Protocol was concluded. So, the invalidityof the Protocol from themoment of its signature
has no effect whatsoever on the issues relating tthe territolial settlement betweentheUSSR
and Romania.
24 '
Molotov-R~bbent Fratpand itsConsequencesfor BessarabiaCollectionofDocuments, Chisinau,
: Universihs, 199pp. 107-110.
25 Treaty of Non-AggressionbetweeGermany and theSovieUnion entered intin Moscow,23 August
' 1939, Foreign Policy the USSR,Collecrion ofDocumenrs,Vol. IV (1935-June 194t),Moscow,
1946,pp. 442-443.
26 Secret AdditionalProtocoto the Treaty on Non-Aggression between the USSR and Germany,
23August 1939,Molotov-Ribbentrop Pact and itsConsequences for Bessarabia,Collection of
Documents,Chisinau,Universitas, l, p8.1 5.27 On the eve of Nazi Germany'sattack on the USSR on22 June 1941, the establishment
of the Soviet-Romanian State border had been almost completed, but some border issues
remained unsettled, relating mainly to the islands in the Danube Delta, including Serpents'
~ Island.
5.28 Romaniajoined Nazi Germany in the war of aggression against the USSR, and in
1941-1844 it occupiedconsiderable parts of Ukrainianterritory,including South Bessarabia
and Northern Buko~yna~~D . uring the Romanian occupation, Ukfaine suffered great human
and material losses,particularIybecause of the war crimes committed by Romanianmilitary
authorities on occupiedUkrainianterritory2'.
5.29 InitsMemorial,Romania complains that, after23 August 1944, it "was occupied by
l
Soviet troops"29,and the events connected to the Romanian-Soviet "understandings of 1948
and 1949 did not take place between equal partners, but between an occupied State andthe
occupying However,it should be recalledin thisrespectthat Romania was occupied
during and afterthe World War II as an aggressor State and that this occupation was
legitimate. Even though in its Memorial Romania endeavours to reassure the Court that it
puts great value in "theneed for order and stability oftheinternational communityu3' his is
not the first time that Romania has publicly voiced its discontent at the earlier territorial
settlements, and Romanian officials and media have made prejudicialand propagandist
commentsaspiringto a "GreaterR~rnania"~~.
SeeUSSR 152-154,237, 242, 295:"TheTrialofGerman Major War Criminals,Proceedings othe
ZntemationalMilitary Tribunal sitatNuremberg", Part6, 2February 1946-13February 1948,
H.M.S.O.,London, 1946, pp272-281.The Nuremberglegal proceedingsagainsmain German war
criminals,Moscow, 195Vol. 2, pp. 582an689.
Odesainthe Great Patriotic WatheSoviet Unionthecollection of documentsand material,Odesa,
1950,Vol.2, p47; Pravda, 10May 1944 and 17, 18, 19May 1945.ChisinaMoldavian SSR inthe
GreatPatriorfcWar of theSoviet Union, 1970, pp. 166-168, 172-176, 203-204. A.A. Shevyakov,
Relations betweeftSovUnionand Rdrnania[sic]1944-1949Moscow,Science,1985,pp. 10-20.
RM, para. 5.5.
RM,para.5.8.
RM,park 5.16.
Declaration otheRomanianParliament on the Molotov-Ribbentrop Pact, 24 June 199and the
Declaratioof theRomanian Government on the Referendum in Ukraine date29 November and
1December1991; andStatementstotheRomanianSenate,4 December 1995(Melescanu), Annex22,
Vol.3.5.30 h thiscase theCourt cannot revisit Romania'searlier grudges.It was for the Powers
negobating the Paris Peace Treaty of 1947 to decide what reparations Romania - as an
aggrJssor State in World War U - should make after the war. The Coun should not be
expekted to review and passjudgment on the history of the regon in its determination of an
I
equitablesolutionto the dispute whichthe Court hasjurisdiction to hear, ncan itsomehow
l
grant' atonement for wrongs allegedly committed in the past and ignore treaties and
convkntionsin force between the Parties because - in Romania'sview -such treaties may
con~titute a basis for furtherinjusticef". my event, Romania has disclaimedany attempt
to unldopast settlements. Moreover, all these treatiand conventions,being legitirnate and
legallybinding,remedied only to some extentthe unjusticessuffered byUkraine in the past.
~ectiIn 3. Establishmentof the Border Between the Soviet Union and Romania, and
theAllocationofSerpents'Island to theSovietUnion, 1947-1948
5.31 As mentioned above, before 1940 there was no legally established State border
betwqen the USSR and Romania, and their territories were divided by a provisional
dernalration line. The Exchange of Notes concluded in 1940 between the USSR and
Rorn$nia3'provided a legal basis for various territorial changes affecUkrainian territory
in arias previously occupied by Romania. But then, in the summer of 1941 Nazi Germany
attacked the USSR, and,as notedin Section 2 above,Romania allieditselwith Germanyand
again occupied parts ofUkrainian territory. That occupationcame to an end in 1944, and a
permanent settlement of the USSR-Romania State border was agreed in the Paris Peace
Tread of 19473'.
5.32 An element inthe boundarysettlement agreed between Romania andthe Soviet Union
after the Second World War involved agreement in 1949 on partof a 12-mile arc around
I
serpe+tstIsland. Romaniacontendsthat:
33
14 1RM, para.5.19.
35 Seepara.5.23above.Annex21, Vol.3.
Seebelow,paras5.34-5.36.(a) the part ofthe arcin question extended anti-clockwise around Serpents' Tsland from a
point approximatelysouth west of theisland to a point approximately due east of the
island (seeillustration inFigure5-1);and
(b) the settlementagreed in 1949 made that part of the 12-milearc theSoviet Union'sall-
purposemaritimeboundary to the southof which the Soviet Union had agreedin 1949
that it couldhave no maritimeclaims,in particular claims to a continental sheland an
EEZ.
In both respects Romania's contentionis wrong.
5.33 In thisChapter Ukraine will showthat over the past half centurythe development of
Soviet-Romanian (and later Ukrainian-Romanian) arrangements reveal a clear and consistent
pattern based on theinitial agreement that Serpents'Island was part of the territory of the
Soviet Union. The main features of thatpattern (which isexamined in detail in para. 5.34et
seq.)will be shown tobe the following:
(i) In 1949 Romania and the Soviet Union made a starton agreeing their maritime
boundary beyond the mouth of the Danube by agreeing a general Proc2s Verbal
describing their agreed line. Aa time when Romania claimed only a 6 mile territorial
sea while the Soviet Union claimed 12 miles, their agreement could onlybe limited,
but it did establish the startingpoinoftheboundaryin theDanubeDelta (referredto
in the Procks Verbal as Point 1437) and the first two pointsout to sea (referredto as
Points 1438 and 1439), the latterof which took the boundary line out to thepoint
where itmet the outer limit of the Soviet Union's 12 nrn territorialsea around
Serpents' Island; the line was dso agreed to go a further short, but verbally
unspecified, distancefollowing partof the outer limit of thearc delimiting the Soviet
Union's12n.m.territorial sea around Serpents'Island.(ii) But only the first 6 rim. of this agreed licould be a proper State boundary between
the two States'areas of sovereignty (i.e territorial waters).Beyond that6 n.m. limit
the line agreed was no more than the outer limiof the Soviet Union'sterritorial se-
for thefirst 2 n.m. beyond the 6 n.m. limit the line represented its territorial sea limit
calculated from itsmainland coast at and to the north othe mouth of the Danube, and
then for a further 5.1 n.m. the line consisted of parthef12mile arc of tenitorialsea
aroundSerpents'Island.
Although atthis time (1949) Romania claimed only a 6 n.m. territorial sea,Romania
movedto a 12 n.m. territorial sea limit in 1951.That possibilitywould seem to have
been in mind already in 1949 since itappears to have determinedthe distance to
which the agreed line followed the Soviet Union'sI2 n.m. territorial sea arc around
Serpents'Island -in effect, as indi~atedon a map(identified asMap 134:see Figure 5-
2) annexed to thegeneral 1949 Procis Verbal, the short distance beyond Point 1439
to the point at which Romania's prospective 12 n.m. territorialsea would intersect
with the 12 mm. arc around Serpents' Island. But since Romania had not actually
legslated for its 12 n.m. claim it was not possible to be precise about its
consequences, and as a result the exact prospective point of intersecticould not be
precise identifiedand was left open until it could bfixed later.
Once Romania had moved definitively to a 12n.m. territorialsea in th1950s,it was
possible for thesituation toevolve further. This ididwith Romania'sacceptance in a
1963 ProcBs Verbalthat the 12 n.m. arc around Serpents'Island was the arc defining
the limitof theSoviet Union's"territorial sea" around Serpents'Island.
1 In 1997the conclusion by Ukraine and Romania of the Treaty on Relations of Good
(v)
1 Neighbourliness and Cooperation, Article 2.1, effectively putanend to any dispute
I about their common land boundary by thereaffirmation of "theexisting border".The
' final stagein agreeingthe commonboundarybetween their sovereign territories was
I
i then reached in 2003 with the conclusion of the Treaty on the Ukrainian-Romanian
' State Border Regime, in which the two States accepted thatthe intersection of theirMap 134Annexed tothe1949~DG~S Ve~&at respective territorial sea limits on the 12 n.m. arc around Serpents' Island, which
hitherto had not been specified but only indicated in a general way, wasnow fixed at
the point the coordinates of which they hadagreed and which layonly a short distance
along the 12 n.m. arc around Serpents'Island; they further agreed that their territorial
seaboundary went "up to", i.e., not further than, that point of intersection.
(vi) In concluding their various agreements from 1949 onwards the Parties were only
concerned with what waseventually to be their complete territorial sea boundary in
that area, and were not concerned with their further continental shelf or EEZ
boundary. This they confirmed by acknowledging in Article 2.2 of the 1997 Treaty
that the delimitation of their continental shelf andEEZ boundaries still remained to be
settled: this was to be done through negotiations on the basis of principles and
procedures set out in what became known as the 1997 Exchange of Letters. In effect,
having definitively fixed the full length of their common land and territorial sea
boundary and specified the coordinates of its final easterly point, they put that on one
side as alreadysettled and moved on to the search for a settlement of their continental
shelf and EEZ boundary - a search which they nowpursue in the present proceedings.
A. Treaty of Peacebetween Romaniaand the Allied and AssociatedPowers
1947("the1947Peace Treaty")
5.34 The 1947 Peace Treatg6 was concluded between the Allied and Associated Powers
(which included the Ukrainian Soviet Socialist Republic) and Romania. It made provision
regarding Romania's frontiersin Article l,which stated:
"The frontiers of Roumania, shown on the map annexed to the present Treaty
(AnnexI), shall be those which existed on January 1, 1941,with the exception
of the Rournanian-Hungarian frontier, which is defined in Article 2 of the
present Treaty. The Soviet-Roumanian frontier is thus fixed in accordance with the Soviet-
Roumanian Agreement of June 28, 1940, and the Soviet-Czechoslovak
Agreement of June 29,1945."
5.35 Neither the 1947Peace Treaty, nor the 1940 Soviet-RomanianAgreement to which it
referred, made any mention of Serpents' Island. Both were concerned essentially with the
mainland frontiers of Romania. The Peace Treaty was, indeed, not a special agreement on
borders at all, but simply included border provisions along with numerous other provisions
appropriate to a general peace treaty: it accordingly provided only a general outline of the
border with Romania.
536 The map annexed to the 1947Peace Treaty was a very small scale map (1:1,500,000).
A copy has been provided by Romania at RM A 10 in its Map Atlas. Consistently with its
essentially mainland purpose, that copy of the map shows the land frontiers of Romania
outlined in a thick green line-a form of marking which in practice made exact identification
of the borderline impossible, especially with regard to areas not previously defined,including
the area of the Danube Delta. In anyevent, there is no continuation of that frontierout to sea,
even for the normal distance of the territorial sea. Serpents'Island is shown on the map but,
contrary to the statement in Romania's Memorial, the map does not "show [...lSerpents'
Island as forming part of R~mania"~~T . here is no line marked in the sea carrying any such
indication, nor is any other indication to that effect discernible from the copy of the map in
Romania's Map Atlas, or from copies of the map kept by the UN Secretariat and the Public
Records Office, London (a reproduction of which is included asFigure 5-3).
B. Protocol of 4 February 1948 to Specify the Line of the State Boundary
Between the People's Republicof Romania andthe Union of the Soviet
SocialistRepublics("the 1948Protocol")
5.37 The frontier provisions of the 1947 Peace Treaty were in very general terms, and the
green line by which the mainland frontier was depicted was quite crudely drawn. Given the
consequential boundary uncertainties, the Soviet Union and Romania concluded the 1948
37 RM, para.3.27. ProtocolJ8by which the two States bilaterally clarifiedthe provisions of the Peace Treaty
regarding their common land frontier. ParagraphI oftheProtocol provided:
"The State border between the USSR and Romania shownon maps enclosed
to this Protocol(Appendices Iand II shall passasfollows:
a) Accordingto Appendix I:
.*.
b) According toAppendix II:
Along the river of Danubefrom Pardina to the Black Sea, leaving islandsof
Malyi Tataru, Malyi and VelykylDaller,Maican and Limba on the side of the
USSR, and the island of Big Tataru, Cernovca and Babia on the side of
Romania;
The island of Zmiinyil~erpilorllocated ithe Black Sea eastward of the mouth
of Danube shall becomeapart of the USSR."
5.38 The maps which are referred to in the 1948 Protocol as Annexes I and H are not
attached tothe text of the Protocol supplied by Romania: they areattached tothis Counter-
Memorial under Annex 24, Volume 3. AnnexI is principally a map showing the entirety of
Romania'sland boundaries, but it also depicts Serpents'Island off the mouthoftheDanube,
with "(CCCP)'"i.e., USSR] written beneath itAnnex 11shows themainland frontier along
theDanube from Pardina to theBlack Sea, and,in a separate box insert athe bottom right
hand corner, depicts Serpents'Island (named in both languages) witk the subscription
"CCCP" [i.e., USSR]. The Annex11mapdepicts no border seaward of the coastline of the
DanubeDelta, and the box insert shows no boundary orarcaround Serpents7sland. Although
paragraph 1of the Protocol,describes theborder byreference to themaps atAnnexes I and D,
paragraph2 states that "[ilncase of differencebetween the description ofthe border inthe
textand the one in the maps, the descriptionin the text shall beconsidered as the accurate
one".
5.39 By a note dated 28 July 1995 Romania purported to declare the 1948 Protocol
invalid3'.Romania contended that theProtocol had been concluded under duress applied by
the formerUSSR,that itexceeded the scope of the 1947Peace Treaty, and that itwas never
38
39 Textat Annex24,Vol.3.
NoteverbaleNo.H(01)/28 05ted28July1985,Annex 25,Vol. 3.
iratified by theRomanian Parliament. None of these contentions has any merit: Romania has
adddcedno evidence of the alleged duress (andcannot do so sincethere was none);the 1948
htbcol did not exceed the scopeof the 1947PeaceTreaty,butsimplyclarified the border as
imp~eciselydetermined by thnt Treaty; and the provisions of the Protocol were substantially
repelted in the USSR-Romania1949 State BorderTreaty andin the USSR-Romania1961
i
BorderRegime Treatfl, both of which were ratified by the Romanian Parliament. Moreover,
o 1918 treaty cannot be validly denounced in !995, some 47 years later. Ukraine has never
I
accebted the valid ty of Romania'spurported denunciation. Despite repeatedrequests from
I
~krdine, Romania has declined to withdraw itsNote of 28 July 1995n.Yet Romania has
invoLedthis Protocolin its Memorialas if it werestillin force", and hasexpressly statedthnt
not challenging past ~ettlernents~~.
it was
C. ProeEs Verbalof 23 May 1948 ("the1948Procis Verbal")
5.40 By the 1948 Procts Verbal, signed on Serpents'lsland itself,the two States
acknowledgedthat "the formalitiesof the handingoverof the island have been f~lfilled"~~.
section 4. The1949StateBorder LineDelimitationand Demarcation
Procds Verbal Signed on 27 September 1949 ("the General 1949 Procds
1 A.
1 Verbal' ')
5.41 Paragraph 3 of the 1948 Protocol provided for the establishment of a Joint Soviet-
~omknIan Border Commission for the demarcation of the border in accordance with
pra&aph 1 of the Protocol. This Joint Commission performed itsdemarcation taskin 1948-
l
19491It recorded its work in the general 1949 Proc2s Verbal, which consisted of three
I
See below,paras.5.78eseq.
See below,paras.5.84 eseg.Althoughin1993 Romania also purporteddenounce this 1961Border
Regime Treaty, that denunciation, if val(which it wanot), would sthave leftthe provisions
of the1949State Border Treaty unaffected,and wouldnhaveaffectedtheestablished Stborder
itself.
See Nore Verbale fromthe UkrainianForeignMinistry to thRomanian ForeignMinistryNo. 15-
39151015of 7 November 1995,Annex 26,Vol,3.
See, forexample,RM,paras.3.28-3.32.
RM, para.5.19.
Annex27, Vol.3. volumes, togetherwith six annexed volumes of individual Procds Verbau recording the
~ detailsof the border signs ateach particular border point. In accordance with the final
substantive provisionof thProcBs Verbal,itwas to be approvedby the Governmentsof the
USSR and Romania, and was to enter into force immediately after its signature on
27 September1949.
5.42 The finalpages of Volume Kt4 ofthe general1949 ProcBsVerbal record thefixing of
the last three, most easterly, points along State border, namely Points (or sometimes,
border sign numbers) 1437,1438and 1439.
5.43 Point l437was locatedin theMusuna (Musura)channel of the Danube Delta, marked
by concrete pillars on bottheeast and west shores of the channel. From that location the
ProcGs Verbalstipulates that
I
"the boundary passes from boundary mark No. 1437 along the middle of
Musuna (Musura) branch south-south-eastward to the mouth of Musuna
(Musura)branch, ..to boundary mark No. 1438(buoy).
The boundary mark No. 1438 (buoy) isplaced on water at the turninpoint of
boundary line which passesin the BlackSea.
From stateboundary mark No. 1438 (buoy), the stateboundary in theBlack
Sea passes inthe straight line in azimuth of 102"30',0to state boundary mark
No. 1439(pole).
The stat boundary mark No. 1439 (pole)is placedon W ater ia turning point
of stateboundary line which passes in the Black Sea,atthe intersectioof a
directline,which goes from state boundary mark No. 143&(buoy) in azimuth
192°30',0,with theexternal edge of 12-mile maritime boundary strip ofthe
USSR aroundof ZrniinyiIsland.
46
Annex28,Vol.3. The statb oundary fromstate boundary mark No. 1439 (pole) passes along
externallineof a 12-mile maritime boundary strip, leavingZmiinyi Islaon
the side of the USSR."
5.44 In brief, therefore, the seaward part of the boundary followed a line running from
point 1437in the Musuna (Musura)channel of the mouth of theDanube, to a buoy at point
1438, then to a beaconatpoint 1439 Iylng on the Soviet Union's12mile territorial sea arc
arouhdSerpents'Island, andthen for an unspecified distance along that arc. That agreed line
wasldepictedon a map annexed tothe Procds Verbal(map sheet 134):that map isbscussed
l
atpdragraph s.48to 5.50,below, and a copyis at Figure 5-2.
5.45 AlthoughRomania complains at what itclaims to perceive as certanjustices inthe
agreedline4 th,efacts arethatthe linewas partof the immediatepost-war settlement in
which Romania was on the side of Nazi Germany,thatStates can in negotiating agreements
take intoaccount or disregard such factors as they consider appropriate,that approaches to
marihrne delimitation were in 1949 leshighly developed than they artoday, that the Line
was b agreed line,and that Romania has expresslydisavowed any intentionofchallenging
Itmay be noted that:
thegeneral1949 Procds Verbalrefers tothe 12mile arc as"theexterior margin of the
Sovietmarine boundary zone, of12 miles"and (a few lines later) "exteriormargin
of themarine boundaryzone, of 12 - iseems that,because ofitsown lesser
claimto a 6 mile territorial sea, Romania watthis time inhibitefrom referring to
thispurely Soviet maritimelimias a "territoriaslea"limit and it was insteadreferred
toasa "Soviet marine zone",until RomaniaitseIfadopted a 12n.m. limitfor its own
tentorialseas0;
I
47 [ RM,paras5.4,5.16.
RM, para5.19.
1 Annex28,Vol.3.
' Seebelowpara.5.82.
l
I (ii) the general 1949Procbs Verbal didnot in words stipulatehow far around the 12 mile
arc theboundary was to run;and
(iii) the general 1949 Procts Verbal does not give any reason for the change of direction
of the boundaryatPoint 1438,or for theselection of the particular azimuth which the
boundary was to follow from Point 1438to Point 1439:it thus offers no explanation
why Point 1439 was located precisely where it was on the 12 mile arc around
Serpents'Island (and not further to the north westor the souteast).
5.47 Atthis time, however, Romania wascontemplating moving to a 12mm.territorialsea
limit (which itdid in 195l)>'and it inoteworthy thatnot only wasPoint 1439locatedon the
12 n.m. arc around Serpents'Islandbut also that the boundary was depicted on theannexed
map sheet 134>'at approximately the point atwhich that prospective Romanian 12n.m. limit
extending seawards fromtheRomaniancoast would intersectwith the Soviet Union's12n.m.
arc around Serpents' Island, at a point some 12 mm. from Romania's baselines. That
explanation isborne out by three facts.
I) First, when in 1997 Romania notified the United Nations of its straight baselinesit
accompanied thatnotification witha chart:a copyis attached as Figure 5-4, with the
relevant portion enlarged at Figure5-5 .hatchart depicts a partial arcjoining points
nurnhered "l"'and "21r',ach on the 12nm arc around Skspents'Island: thecoordinates
of Point 1' are 45"08'51.2 2"N"57'39.4"E, which is remarkably close to the
coordnates of Point 1439 (at45"08'59.2lUN,29'57'39.42"E).
(ii) The secondfact is thatwhen in 2003 Ukraine and Romaniaagreed upon theterminal
point of their territorial sea boundasy,they agreedthatthe boundary wouldcontinue
from Point 1439up to the point of 4So05'21"N,30°02'27"E,representing the point at
which their common territorial sea boundary would end: again this latter pointis
remarkably close to the location of Point 2' on the straight baseline chart
! 51 See below, para.5.82.
52
See below, par5.48. (45"04'31.4"N,30a02'13.0"E).Given that in 1949 the point of intersection of the
prospective 12 n.m. territorial sea limit andthe 12 n.m. arc around Serpents'Island
could only be calculated approximately,the likelihood that Point 2' was intended to
represent such apoint of intersectionisverystrong.
(iii)I Romania'sMemorial confirmsthe closerelationshipbetween theend point of the line
depicted on the 1949 annexed map and the point of intersectioof Romania'sand the
Soviet Union's12n.m. territorialseass3.
l
I
! 5.48 The general 1949 ProcBsVerbal stated that to it there"ar ennexed: l. The maps of
I
State border, between the USSR and the PRR, at scale 1:25,000. ...". This appearsto refer
to mapsprepared bythe Joint Soviet-Romanian Commissionforthe Demarcation of the State
Border between the Union of Soviet Socialist Republics and the People's Republic of
~ornknia. No map at that scale for the maritime sectorof the boundary has been providedby
l I
~ornkinin.Instead, Romania has provided a copy of a mapsheet numbered "134" apparently
by the Joint DemarcationCommission, and depicting theState boundaryfromPoint
1438 to Point 1439".This map, however,is ata scale of 1150,000,not 1 :25,000 as described
l
I . in the general 1949Proc2s Verbal. It seems, nevertheless, thatthis map sheet numbered 134
is, asRomania acknowledges, the map intended to bereferred to in the general 1949Procks
1 verbkl as covering thissector of theborder, thechange in scaleprobably being attributable to
l I
thechange from land boundary to sea boundarywhere distances are largerand surface detail
I
muck less. Given the importance of this map as the only map annexed to a boundary
agredmIntbetween the Parties and depicting the agreed boundary, it is convenientto include
a fult)lecopy of iin this Counter-Memorial as Figure 5-6.
i
5.49 1 This map sheet 134 appearsto show, in dark blue,a three mile band of territorialsea
along themainland coast and aroundSerpentsysland, the boundarybetween points 1438and
1439 (which is marked in manuscript as being 11.7 miles from paint 14381, and s
53
54 SeeRMFigure24 ap. 202.
55 Annex RM 13, bottoofpenultimatpage andtopof finalpage.
Map RMA 11inRomania's Map Atlas. . ,.. .
. 8 . .
.. . !, . .
Map AccompanyiagRomania's ~
~otifirPtionto the uaited NI~~O~B .~
. S , -- -, ,..-. ,
, '!, 7,I -. ~f its Sfr,aight Baselines .,l
... '.L::( , , ....,., ,I.. ..' ' . largementof Relel
-(artofMapAceamp;, I
>*% theUnStraigBaselinests
m I Map 134 Annexed to the 1949 he&r Verbal
, . '?&,is
i ,continuation of the boundary beyond Point 1439 around part of the arc around Serpents'
Island (which is marked in manuscript as being 12miles distant from theisland).
5.50 Itis to be noted thatwhile the mainland coast and its accompanyingterritorial sea are
marked right up to the bottom edge of the map, the 12 n.m. arc around Serpents'Island does
not go as far as the edge of the map (as already noteds6 the arc's terminal point is
approximately at the point at which Romania's 12 n.m. territorial sea intersects withthe
SovietUnion's12 n.m. territoriasea arcaroundSerpents'Island). It cannot thereforebe said -
asRomania argues57 - thatthe onlyreason whythe arcis only partiallydepicted on this mapis
simplythat the depiction had reachedthe edge of the map: the arc could have been depicted
further if that had beenintended, just as the mainland has been depicted right to the edge of
the map; or the fact thatthe line was tocontinue could have been indicated by an arrow
pointingin the desired direction.Butneither course was adopted. Instead the depictionof the
arc was deliberately stopped after it hcovered onlyapproximately 22" of thearc.
B. TheIndividual Precis Verbam for Points 1438and X439
5.51 In addition to the general 1949 Procbs Verbal for the whole boundary, individual
Procks Verbauxwere signed as part of the same process for each separate Point along the
boundary, and these individual Prclcis Verbaux were setout in 6 valumes annexed to the
general 1949Procbs Verbal.
5.52 The individual Pracbs Verbalfor Point 143P8describes in a little greater detail than
does the generalProcBsVerbal the location and characteristics of themarker (buoy) at Point
1438,but (so far as irnmedately relevant)essentially repeats without significant variation the
descriptionof Point 1438in the general 1949Proc2s Verbal:in particular it continues to refer
to the 12 n.m, arc around Serpents' Island as "the exterior margin of the Soviet marine
boundary zone,of12miles, surroundingSerpents'Island" (emphasis added),
56
57 See above,para.5.33Ciii).
58 RM,paras. 11.6,Il.(finalsentence).
Annex 29, Vol. 3.5.53 Theindividual Proc2s Verbalfor Point 143g5' describes in similarly greaterdetail the
1ocat:ionand characteristics of the marker (a beacon) at Point 1439, but again (so far as
immkdiatel relevant)in essentially thesame terms as were used in the general 1949Procks
verb@, although, unlike that Proc2s Verbal'sreference to Point 1439, now describes the
contilnuation of the boundary beyond Point 1439 as a line which "passes on the exterior
margin of the Sovietmarineboundary zone,of 12miles" (emphasis added).
I
5.54 Each individual ProcBs Verbalwas accompanied by a "sketch" depicting the location
of thk point to which it related. The sketches for Points1438 and 1439 are unreliable. The
Procbs Verbauxdo not appear to indicatethe relationship between the "sketches" and the
verbh descriptions, or which prevails in caseof discrepancy: whilethe "sketches"go together
I
with the berbal des6riptions,theydo not appear to have been formally made integral-partsof
These sketches for Points 1438 and 1439 are reproduced in Figures 5 and 6 of
Memorial (atpp. 36 and 37); they are reproduced herefor convenience,asFigures
5-7 a?ld5-8T .he sketch for Point 1438 is marked as being at a scale of 1:50,000; the sketch
l
for Pbint 1439does not inhcate itsscale.
5.55 Indeedalthough apparently loose1 y based on the relevant part of the sheet from which
the sketch for Point 1438 was taken, itis clearthatthe sketch for Point 1439 is not toany
consistent scale. It appearsto have been no more than a rough illustrative sketch drawn
withdut referenceto considerations of scale. This is apparentfrom the lengthofthe linefrom
the douth of theMusuna/Musurachannelto Point1438, as compared with thelength of the
I
line from that Point toPoint 1439. The sketch shows these two lines as of broadly similar
leng Hthwe.ver, the distances involved are very, and not just fractionally, different. As
rnarkkd on the sketch for Point 1438 the distance fromthe Musuna/Musura channel to Point
1438iis given as 3,879.3 metres6',while the distance from Point 1438 to Point 1439is given
as 21\750.0metres,i.eo .v,er five times as long. This bears no relation thebroad1y similar
lengths depicted on the sketch for Point 1439.A more accuraterepresentation of the relative
59
M) Annex 30, Vol.3.
61 RM, para4.10,assertingththeyare "integralpartthetexts.
1 The ProcPs Verbalof thDescription of the StateBorder Line, on the other hand,st'[[]heat
lengthofthe boundary Iine from border no.1437 tobordersignno.1438 (buoy) is of 45m."
(seeAnnex28,Vol. 3).YEPHISE MOPE
NEA GRA
SketchZacludediae,
the 194&ac&s Verh& lsrlf
BordlerPoliat439"distances involved is apparent on the map sheet 134 accornpanyng the general 1949 Procgs
Verbal (above,paragraph 5.49 and Figure5.6).
5.56 In contrast with the depiction of the 12 n.m. arc on that map sheet 134 (above,
paragraph5.50),the depiction of the arc on this sketchforPoint 1439 does continue right to
the edge of the sketch. However, this isnot inconsistent with the truncated depiction ofthe
arc on sheet 134, nor does it support Romania'scontentions2that the line was intended to
extend further around Serpents'Island but was only prevented from doing so by the fact that
the line met the edge of the map. First, as just demonstrated, the sketch is generally
unreliable. Second, the southern limit of this sketch map is located further north than the
southern border of map sheet 134: accordingly, ifSerpents'Island were marked where the
distances given suggest it should be marked, the arc depicted on the sketch covers
approximately the same 22" degrees of arc as the truncated arc depicted on map sheet 134,
i.e. te reason that thearcextends to theedge ofthis sketch map is simply that the southern
border of the map runs further norththan the southern border of map sheet 134, and comes at
a point which just enablesthose same 22" of arcto bedepicted on it.
C. The OverallEffect of the 1949ProcPsVerbaux
5.57 Taken together, the individual Proc2s Verbaux and their accompanying sketches do
not depart'intheiressentials from thedelirnitation othe boundary set out in the general 1949
Procks Verbal.Inparticular, thethree pointsnoted at paragraph 5.46 above remain applicable
(namely,the 12mile arc is referred to as "the exteriormargin of the Soviet marin beoundary
zone,of 12miles"; there is no verbal indication how far around the 12mile arc theboundary
was to run; and no reasonisgiven for the boundary'schangeof direction at Point 1438,or for
the selection othe particular azimuth to reach Point 1439).
62
RM, paras11.6and11.S(lastsentence).5.58 The significance of the delimitation and demarcation settlement recorded in the
various1949Procts Verbamcan only be assessed in the lightof two important factsexisting
at that time.
5.59 The firstconcernsthe territorial sea cIaimsof Romaniaand theSovietUnion. In 1949
the Soviet Union had for many years claimed a territorial sea of 12 nautical miles63,while
Romaniaclaimedonly 6 nautical milesM.
5.60 The second concerns the state of international law regarding the extent of States'
rights over maritime spaces. In 1949it was generally accepted that States were entitled to a
territorial sea of 3 nautical miles, although there were some States which were even at that
time claiming more (including Romania (6 miles) and the Soviet Union (12 miles)). It was
also generally accepted that States were entitled to contiguous zones of up to 12 n.m. for
certain limited purposes (suchas customs, health and safety). But claims to continental shelf
rights wereembryonic,particular1yin Europeu, andwere nor generallyaccepted,while claims
toEEZrights were (at least in theirmodern form) unknown66.
5.61 Taking these two elements into consideration,the settlement recorded in the various
1949 ProcGsVerbam can be seen, in the circumstances ofSeptember1949, to have had the
followingnine characteristics.
5.62 First,theexternal limit of Romania's territorialsovereignty extended only as faras the
outer limitof its claimed 6 mile territoriasea.
5.63 Second, since Serpents'Island lies within 24 miles fromthe mainland coast of Soviet
territory at the mouth of the Danube, thk,external limit of the Soviet Union's territorial
sovereignty extended from its mainland coast and out to the limits of its claimed 12 mile
\
63
RM, para.11.12.
65 / RM,para.I1.11.
66 At thatimesuch claims werlimitedtocertaiStatesin theAmericancontinents.
Seebelow, paras.5.71-5.72.
l territoriasea all round Serpents'Island. These Soviet and Romaniansovereignty limits are
illustrateonFigure 5-9.
l
5.64 Third, ascan be seen from that sketchmap, the boundaryline between Point 1437(in
the MusuraMusuna channel) and Point 1438 (buoy) is a true State boundary between the
i territorialsea andor internal watersof Romaniaand the Soviet Union.
5.65 Fourth, as can similarlybe seen,the boundary line runningout tosea from Point 1438
in the directioof Point 1439 (beacon)is a true State boundarybetween the territorial seof
Romania and the Soviet Union onlyas far out as a point 6 nautical miles from thebaseline
from which Romania'sterritorial sea ismeasured.
5.66 Fifth, itcan also be seen thatthe boundary running further out to sea beyond that
6 mile point and to the beacon at Point 1439 itself, andthereafter followingthe firstpartof
the 12n.m. arcaroundSerpents'Island, is not the boundarybetweenRomania'sand the Soviet
Union'ssovereign territorial seas, but ratherthe boundary of the Soviet Union's sovereign
territoriasea and between it and adjacent high seas (the term "boundary" being consistent
with both senses). The description of the 12 n.m. arc in the variousprocis verbaux as"the
exterior margin of the Soviet marine boundary zone, of 12 miles" (emphasis added) thus
accuratelydescribes the arc as the outer limit the Soviet Union's12 n.m, zone, and not as a
boundary between waters subject to the sovereigntyof the twoStates.
5.67 Sixth,the waters on the non-Soviet side of the 12 n.m.arc were high seas. Neither
Romania nor the SovietUnion claimed otherwise: Romania'sclaimed sovereign tertitorial sea
extended no further than 6miles out to sea, while the Soviet Union'sextended no furtherthan
12 n.m. No depiction on a map, or description in a procts verbal, can serve to "give"
Romania sovereignty over maritime areas which Romania itself did not daim. Neither State
claimed, or would have been entitled in international law at the time (or now) toclaim, a
territorial sea of more than 12 n.m. Waters beyond their territorial sea limwere high seas,
which in 1949 meant (for Romania) the waters beyond 6 n.m., and (for the Soviet Union)
waters beyond 12n.m. 5.68 Seventh, theproc2s verbam areentirely consistent with the conclusion thatthe Parties
were in 1949 concerned only with the limits of the areas over which they possessed
sovereignty. The proc&sverbarmhave to be seen in theircontext as partof the arrangements
for settling the State borderbetween thtwo States-a borderwhichdetimitedthe areasunder
the sovereigntyof thetwo Statesand which for almost itsentire lengthwas a mainland border
between their mainland territories, with only a minor element consisting of the final maritime
sector in areas where one or other,or both, Partieshad sovereignterritorialsea rights.
5.69 Eighth, nothing in the procPs verbaux(or elsewhere)indicates that the Parties were
considering anythingother than the limits of the areaover which theypossessed sovereignty.
In pL?rticulart,ere is nothing to suggest that in 1949 the Parties had in contemplation
anything in the nature of continental shelf or EEZ rights, neither of which was in 1949 an
established part of international law. Their agreement as the boundaries oftheirrespective
sovereign territories and territorial seas cannot be interpreted as signifying anything in
relation to yet-to-be-establishedmaritimerights.
5.70 Romania that the agreed line through and beyond Point 1439 "delimited
l maritime areas with different regimes: on the one hand, the Soviet marine boundary zone
l
around Serpents'Island (later referred to as territorial sea) to the north of the boundand,
1 on the other hand,an area appertaining to Romaniato the south of the boundary. From the
1
, point of view of the rights enSoyedby Romania, thisarea to the south of the boundary
corresponded, at that moment, to what in modem law is referredto as a contiguous zone, an
exclusive economic zone and a continental shelf - notions that, atthat time, were already
under debate" - adding for good measure that "the issues of the regime of maritime areas
situatedbeyond the territoriasea were already broadly debated at thattime,as the concept of
the continental shelhad alreadyemerged in internationallaw, andStateshad startedto claim
1 the exerciseof sovereignrights and jurisdiction overextended maritimeareasu6&.
67
68 liM,para.11.14.
RM, para.11.15.5.71 Romania's attempt to transform "notions ... under debate", '"issues ...broadly
debated", "emerg[ing]concepts" and the "start[...]of claims to exercise" certain rights into
actual provisions of lex lam in 1949 is nothing if not bald: more important, it is wholly
unavailing. At that time the EEZ in its modern form had not been heard of. As for the
continental shelfregime, although its originsare usually traced tothe Truman declarationof
194569 ,nd itsdevelopment advanced in the 1950s7',the generally accepted view of the
position even in the early1950s, let alone whenthe Procis Verbal was concluded in 1949, is
that expressedby Lord Asquith, as sole arbitratorin the Abu Dhabi arbitrationas follows: "I
amof opinion that there are in thisfieldso many ragged ends and unfilled blanks, so much
that is merelytentative and exploratory, that in nu form can the doctrine [of the continenta1
shelf] claim as yet to have assumed hitherto the hard lineaments or the definitive status of an
established mle of InternationalLaw"".
5.72 The plain fact is that in 1949 the concepts which are known today as the continental
shelf and the EEZ werenot part of then-prevailinginternational law. "Tahng into account the
stage of development ofthe international law of thattime", as Romaniaseeks to doT2 ,ne is
led to precise1ythe opposite of the conclusion which Romania asserts: instead of Romania's
astonishing assertionthat the state of international Iaw at the time shows that "the boundary
agreed upon in 1949 must have been intendednot only to separatethe territories of the two
States (i.et.h,eir territorial seas), but also maritime areas situated beyond, where the two
States would exercise certain sovereign rights" (emphasis added)'3,the only conclusion to
which the stateof international law at the timecan lead is that the line agreed in 1949 could
not possibly have been intended by the partiesas a line separatingsea areas subject to
distinctiveregimes which atthattime simplydid notexist and whichthere is not the slightest
evidence thatthey had in mind.This is particularly the case gven that the Soviet Union and
the Communist Statesof Eastern Europe were conceptuallyunsympatheticto the generalidea
69 AJIL,Vol.40(1946),SuppI.,p.47.
70 SirRobert JenningQC and Sir ArthuWatts QC (eds.), Oppenheirn'sInternationalLaw, Vol. 1, 9"
d., 1992pp. 768-770.
71 PetroleumDevelopmentLrd ..SheikhofAbuDhabi, I.LR.Vol. 18(195l), pp144, 155.
K! RM,para,11.15.
73 Ibid. of customaryinternational and are therefore unlikely in 1949 to have hadin mind or to
I
have invoked' the emerging customary concept of the continental shelf or the non-existent
concept of the EEZ (particularlyin relation to off-shoremaritime rights where, in 1949 and
indeed for some years thereaf~er'~,customary international law did not even accept the
tenitosial sea breadths then claimed by the Soviet Union(12 n.rn.1 and Romania (6n.rn.)).
5.73 Moreover,even if the parhes in 1949 could be considered to have been blessed with
the necessary foresight, it must be unlikely in the extreme that they would have disposed of
what they would have realised would have been extremely important maritimerights in such
an incidental, implicit and off-hand way, without adverting to the (future) rights they were
restricting and without defining clearly the terminal seaward point at which the restriction
ceased to operate. All they did in thatrespect was refer to the agreed line as "goling]on the
exterior marginof the [Soviet]marine boundary zone, of 12miles" and depictin the annexed
map sheet 134 the limited22"of arcextent of that "exteriormargin".
5.74 Even if continental shelf rights had been an established partof international law in
1949 (which they were not) they would have been -and this istrue atwhatever futuretime it
may be considered that they becameestablished in customay international law - rights which
autornacically and by operation of law flowed for the benefit of the coastal State from its
sovereignty over its land territ~ry'~- which means as much Soviet sovereignty over Serpents'
1 Island as Romania'ssovereigntyoveritsmainland territory.That clear basiclegalentitlement
tosovereignrights, flowingdirectly and automatically fromsovereignty overlandterritory, is
i not to be supposed to have been given upexcept on the basis of clear agreement or other
I +
I evidence to that effect. There is no such agreement or evidence in relation to the area ofthe
Soviet Union'scontinental shelf beyond its territoriasea around Serpents'Island. The Soviet
74 Sir Robert JenningsQC and Sir ArthurWatts QC, Oppenheim's InternationaLaw, gLhed., 1992,
pp.95-96 esp.workscitedinnn. 21,22.
75 Thus the GenevaConferenceon theLaw of the Seafailetoagreeon thisissuin 1958,andthatfailure
wasrepeated atthe Second GenevaConference i1960.
76 North Sea ContinerltShelfCases,I.C.JReports 1969p.29, para.39. Union's en~iiiementto continentashelfrights cannot be questioned; tdelimitati oonthe
spatial extenof that Sovi(and now Ukrainian)entitlernentremainstobe determined,which
is inparwthatthe present proceedingsare about.
5.75 Ninth, Map 134 annexedto the general 1949Procbs Verbalshows that the relevant
partof the arc around Serpents'Island extends only about 22" ofarc beyond Point 1439,
l
i.e., as far as approximately due sowest of Serpents'Island; nothing in the 1949Procds
Verbam, either theirtextsor in the accompanying maps and sketches, suggests that the
relevant part of the 12 n.m. arc around Serpents'Islaextended to the southeast or east
around Serpents'Island, as contendedby Romania7'. Indeed, iis significant that tchact
~
which Romania in 1997 submitted to the United Nations when giving noticof itsstraight
baselines,a copyof which is at Figure 5-4, depicts a partial arcjoining points numbered as
"1"' and "2"', anthat Romania describes that line of arc as "the oulimitof Romania's
~
1 territorial sea".That awhich liessome 12n.m.distant from Serpents'Islandandrepresents
an arc of approximately 22", Iiebetween the coordinateof Point l', which, as mentioned
above, are remarkably close to the coordinates of Point 1439 (at 45'08'59.21"N,
29"57'39.42"E), and the coordinates of Point 2'whichat 45'04'31.4"N,30°02'13 .W"',are
very close to the final point on the maritime boundary agreed in the 2003Ukraine-Romania
BorderRegimeTreaty(i.e 4.5"05'21"N,3U002'27"E).
No other conclusion is possible than that the general 19Procts Verbal and the
5.76
individual 1949Proc2s Verbuuxestablished aboundary which was at the time intended to be,
and was later expressly confirmed bRomania as beinga territorisea boundary extending
out toseaasfar only as the pointat which theouterlimits of Ukraine'sand Romani12sn.m.
territorial seasdiverged.
5.77 It is thus apparethat thProcts Vcrbaux of27 September 1949:
did not in terms fixthe eastward extent ofthe line followingthe Soviet Union's
(i)
12n.m. arc around Serpents'Island, and did not depict an arc extending more than
77 RM, paras11.511.7. about 22" south eastwards from the beacon atPoint 1439, and in particular did not
establish an arcextending right round the south of Serpentsq Island to a point
approximatelydue east ofthat island;
(ii) did not establish even that limite22" arc as anythingmore than the outerlimit of the
Soviet Union's12mileterritorialsea aroundSerpents'Island;and
(iii] did not establish the waterto the southof thatarcas anythingother than high seas.
D. The USSR-RomaniaTreaty on the Regimeof the Romanian-Soviet State
Border,25November1949("the 1949StateBorder Treaty")
5.78 Articlel of the 1949State BorderTreatyT8 provides that:
"The State border line between the PeopIe'sRepublic of Romania and the
Union of the Soviet Socialist Republics, fixed in accordance with Article I of
the Peace Treaty with Romania, entered into forceon 15 September 1947, and
withthe Protocol [of4February 1948)passes in the field as it ideterminedin
thedemarcationdocuments signed on 27 September 1949 at Bucharest by the
Joint Soviet-Romanian Commission for the Demarcation of the State Border
between the People's Republic of Romania and the Union of the Soviet
Socialist Republics."
TheTreaty entered into force on 20June 1950.
5.79 The two States thus, some two months later, formally confirmed by treaty the
demarcationdescribed in the Procgs Verbaux of 27 September 2949. They did not add to itin
any way, and accordingly it was confirmed as itstood, i.e.,with the limitations to which
attentionhas been drawn.
5.80 In summary, it is clear that by the end of 1949 neither of Romania's principaI
contentions about the 1949 settlement7' was borne out by the terms of the settlement
l
78
79 Annex31, Vot. 3.
See above,para5.32.negotiated and agreed in that year: therisno evidence, textual or cartographic,in theevents
of 1949to showeither:
(a) that the agreed lineextended right round the south of Serpents'Island andas far asa
point approximatelydue east of the Island: the only available evidence from 1949
suggeststhat the agreed line continued from the buoy at Point 1439 for at most a
further22" of arc;or
(b) that any part of the agreed line,including the 22" of arc, constituted an all-puspose
maritimeboundary to the south of which the Soviet Union couldhave no continental
shelf orEEZ claims: theonly availableevidence from 1949 suggests thatthe agreed
finein the area beyond Romania's6 n-m. territorial sea limit wasthe outerlimit of the
Soviet Union's 12 n.m. territorial sea, and signified nothing in relation to continental
shelfand EEZ rights which didnot then (orfor many years) cometo be established in
internationalIaw.
Section5. Soviet-RomanianBorderAgreementsafter X949
A. Act Relatingto BorderSign 1439,26 December 1954
5.B1 Bordersign 1439 had tobe replaced because the beacon had disappeared, andthis was
done and the location of Point 1439recorded anew in an Act which was signed by the two
States' authorized border officers on 26 December 1954". In referring to the line running
from Point 1438to Point 1439 and beyond, itfollowed closely the languageof the September
1949 Procks Verbam. In particular,itreferred tothe line running seawardsfromPoint 1439
as following the "exteriormargin of the Soviet marine boundary zone of 12 miles", and
therebyconfirmedthat lineas the external limit the Soviet Union'sterritorialsea.
80
Annex 32,Vol.3.5.82 It is perhaps noteworthy that this Act made no reference to a relevant development
which was taking place around this time, namelythe extension in the 1950s of Romania's .
territorial sea to 12 nautical miles measured from "the shore" (which seems to mean the
easterlypoint of the man-made Sulina Dyke, shown on Map RM Atlas 37). While the
circumstances are not altogether clear, and Romania'sMemorialis not precise, itappears that
thishappened by virtue of Article 1.4 of DecreeNo. 176 of 1951,and then more formally by
virtue of Decree No. 39 of 1956''. 12 n.m. measured from Romania'sshore took the outer
limit of Romania'sterritorial sea beyond the beacon at Point f439 (which lies fractionalIy
over 8 ~.rn.'fromthe Romanian shore) and out to a point on theagreed Soviet territorial sea
boundary a little further tothe east around Serpents'Island. This situation is illustratedon
Figure5-10.It is readily apparentthat that point on the arcis veryclose to if not exactly at:
(i) the terminal point of the arcdepicted on map sheet 134 accompanying the general
1949Proc2s Verbal and giving riseto the 22" of arcthere depictedg3;
(ii) the locationof the point marked"2"'on Romania's1997chart submitted to theUnited
b4ationsg4a;nd
(iii) the location of the final point of the maritime boundary agreed in the Ukraine-
RomaniaStateBorderTreaty200385.
A11threepoints are, itseems clear, intended to be one and the same,
5.83 It is furthernoteworthy that Romania's own legislation shows that Romania did not
regard the L949 Proces Verbaux as dealing. with anything other than a territorialsea
boundary. Article 1 of Romania's 1956 Decree states that "The tenitorid waters of ...
Romania ...are delimited by the territorial waters of the neighbouringcountries ... in the
l
81 RM,para. 11.11;Annexes RM 80andRM 8I.
m2 Thisappears tobe the most plausibleexplanationfthe references sometimesmade byRomania to a
"factualsituation" whereitonly had an 8o9 n.m.territorisea:seeRM, para.5.4,footnote64.
83 i Seeabove, paras. 5.48-5.50.
a4 ; See above,paras5.47 and5.75.
' Ibid.north by a line determined by agreement between [Romania and the USSR]".WhenRomania
enacted its equivalentdecreein respectof theEEZ in 1986,(i.e.,some 36 yearsafterthe 1949
Proc2.sVerbolux)n ,oequivalent referencewasmade to a delimitationline havingbeen agreed
withthe USSR.Taken together these two pieces of legislation show thatRomaniaregarded
the lineestablishedby the 1949Procds Verbamas only n territorial sea boundarand not, in
particular, asanEEZboundarys6.
B. Soviet-Romanian State Border Regime Treaty, 27 February 1961 ("the
1961BorderRegimeTreaty")"
5.84 Article l(1) ofthe 1961 BorderRegimeTreaty again confirmed the lineasdescribed
in the demarcation documents of 27 September 1949 (although allowing also for any
subsequent additions which might be made tothose demarcation documents (such asthe 1954
Actjust referredto)).TheTreaty entered into forceon 27 July 1961.
5.85 The Treaty'sconfirmation of the 1949documents was, however, byreference to "The
demarcation documents signed on the 27'hof September 1949"(Article l(l)(b)). It wenton,
in Article 1(2),to stipulate that:
"Demarcationdocuments are:
(a) the Minutes describing the trace of the state border line between the
People'sRepublic of Romaniaand theUnion of theSoviet SocialistRepublics,
fromthe Tur'border sign, set upat the meetingpoint of the state border lines
of the PeopIets Republic of Romania, of the Union of the Soviet Socialist
Republics and of the People'sRepublic of Hungary, up to the border sign
1439, which is set up ithe BlackSea;
(b)The maps of the Stateborder between thePeople's Republic of Romania
and theUnion of the SovietSocialistRepublics;
(c) The protocols of the border signs with their draft sketches,as well as their
respective annexesand additions."
86 It should benoted that, accortotheU.N. Lawof theSea officdatabasof maritime legislation,
Romania has enacted no continental shelf legislation.See www.un.orglDepts/losI
LEGISLATIONANDTWATWindex.ht (mpdated November 2005; lascheckedon2 May2005).
87 Annex 33,Vol. 3.5.86 It is notable that this definition only incorporates the written descriptions of the
boundary "up to the border sign 1439,which is set up in the Black Sea".The parties were
evidently not intending to take their border beyond that point; certainly nothing in the 1961
BorderRegimeTreaty can be taken to envisageanextensionof theline eastwards beyond (at
most) whatwas depicted in map sheet 13488(but not in ternsdescribed) in 1949.
5.87 Nor does anything in the 1961 Border Regime Treaty affect the conclusion to be
drawn from previous instruments as to the legaI status of the waters on either side of the
12n.m. arc around Serpents'Island, name1 y Soviet territorial sea inside the aand (except
for a small sector seaward of Point 1439: see Figure 5-11)highseas outside it.
5.88 Generally, apartfrom the points just made, the tenns of the 1961 Border Regime
Treaty &dnot add to the 1949 documents and accordingly did no more than confirm them as
they stood, i.e.,with the limitations upon their operation and effect towhich attention has
been drawn.
5.89 The Treaty did, however, contain severalprovisions (Chapter I, Articles3-12) which
dealt with the detailedways in which the border wasto be demarcated and maintained.These
allconcern the border on land,or on the waters of navigable ornon-navigable rivers, rivulets
and channels;they do not appear ta be applicableto the off-shoremaritime waters of the two
States.ChaptersEI("The Usage of the BorderWaters, Railways and Roads Crossing the State
Border Line") and III ("Fishing,Hunting,Forestry, SubsoilExploitation") appearsimilarly to
be confined to the mainland borderon land or on rivers, and not to be relevant to the off-
shore mantime waters. Thisis fullyin accordwith the factthat the"State border"between the
Soviet Unionand Romania was essentially a mainlandborder.
5.90 Moreover, Chapter I made provisionforjoint verification of the border line and for
writtenrecords to be made of such technical matters as minor corrections to the location of
borde;rmarkers, or their replacement by differentmarkers, or changes in the flows of rivers
l
(see e.g.Articles4.4-4.7, 5,6.3,9, 10.5-10.6).Thejoint verification process envisagedin the
88
Seeabove,para.5.50.Treaty took place between 1961 and 1962,and its work was recorded in a Procbs Verbal of
20 August 1963 ("the 1963 Procbs Verb~l")~~A . ccording to the first paragraph of its
Introduction it embodied "new demarcation documellts in sectors where modifications as
compared to the 1948-1949demarcation documents occurred". It seems to have done so by
describing the whole length of the border line, with such modifications as were agreed,
together with individualProcbs Verbauxwhereparticular modifications were made.
5.91 No modification was recorded for the border sign (beacon) at Point 1439,so there was
no individual procbs verbal relating to it. However, the general description of the border line
in the 1963 Procbs Verbal concluded by describing Points 1437 (in the Musuna/Musura
channel of the Danube Delta), the buoy at Point 1438 and the beacon at point 1439in terms
substantiallythe same as those used in the general 1949Procbs Verbal.
5.92 It is notable, however, that in its description of the location at which the beacon is to
be placed, i.e. w,here the line from Point 1438 on an azimuth of 102"30'00"meets the arc
around Serpents' Island, the text refers to that arc as "the exterior margin of the Soviet
territorial sea of 12 miles, around Serpents' Island",and later as "the exterior margin of the
12-mile territorial sea of the USSR, leaving Serpents' Island on the USSR side" (emphasis
added). This is wholly consistent with, and simply makes explicit, what was in anyevent the
ordinary meaning of the 1949 Proc2s Verbaux, withtheir references to the "Soviet marine
zone of 12miles" -a formula chosen to mask the fact that at that time Romania did not itself
adopt a 12 mile limit for its territorial seag0.In particular, the formula adopted in the 1963
Procbs Verbal canies with it no implication that the waters within the arc are anythingother
than the Soviet Union'sterritorial sea or that the waters outside and to the south of the arc
around Serpents'Island are anything other than highseas; nor does it say anything to imply
that the line extended any further eastwards around the arc than the 22' of arc which was
depicted in 1949on map sheet 134".
89 AnnexRM 19.
90 See, forexample,para.5.46(iab,ve.
91 See above,para.5.50. - 100 -
5.93 On 22 April 1993 Romania purported unilaterally to denounce this 1961 Border
Regime Treatyg2.Such purported denunciation was not only inconsistent with the relevant
rules of international law, but also with the provisions of the Treaty regarding its termination.
Ukraine did not accept the validity of that purported denunciation. Despite repeated requests
from Ukraine, Romaniahas declined to withdraw its Note of 22 April 1993.YetRomaniahas
invoked this Treaty in its Memorial as if it were still in force, and has expressly stated that it
was not challengingpast settlementsg3m ; oreover, as Romania itself records94,it was Romania
itself which registered this Treaty with the UN in 2004; and further, Article 1 of the 2003
Treatyg5,expressly invokes the 1961Treaty in relation to the current border. The continued
validityand effectiveness of the 1961Treatycannot be denied by Romania.
C. Procds Verbalof 4 September1974("the GeneralProcds'Verbal1974")96
5.94 Further demarcation work took place in the early 1970s, giving rise again to both a
general Procbs Verbalcontaining a generaldescription of the boundary points as a whole, and
a series of individual procbs verbaux for each boundary point. The general Procts Verbal
1974 followed the language of the 1963 Procbs Verbal, in particular in describing the
location of Point 1439,and its onward route thereafter, byreference to "theexterior margin of
l
the 12-mileterritorialsea of the USSR".
5.95 The individual Procbs Verbal for Point 143g9' in substance follows earlier
, descriptions of that Point, although itreverts in both places to the earlier formula refemng to
I "the exterior margin of the SovietIUSSR marine boundary zone of 12 miles". There is,
however, no difference of substance in the two formulations. The former expressly refers to
I the Soviet Union's 12 n.m. belt of "territorial sea". The latter leaves no doubt in the
1
circumstances that that was also its meaning -the Soviet Union was known to have a 12n.m.
territorial sea, the arc around Serpents'Island was 12 n.m. around the island, and the 12 mile
zone was described as the marine boundary zone appertaining to the Soviet Union: no
92
Seenote verbaleNo. 618 of 22 April1993,Annex34, Vol. 3.
93 RM, para.5.19.
94 RM,para.4.16, atn.46.
95 Annex3, Vol. 2.
96 AnnexRM21.
97 AnnexRM22. construction otherthan that the zone in questionwas a territorial sea zoneisreasonably
possible.
5.96 That individual Frocks Verbal is accompanied by a sketch,which isreproduced at
I Figure 7 (page 42) of Romania's Memorial. This sketch appears to be based on the same
sketch as was used in 1949 for Point 1439, and reproduced as Figure 6 (page 37) af
l
Romania'sMemorial, with the difference that a scalemarking of 1:50,000 has been added,as
~
hasthe location of Serpents'Island.
5.97 This sketch must be disregarded as being wholly unreliableand itsscale markingof
1:50,000as fanciful. As alreadynoted9',the linjoining Points 1438 and 1439 iscompletely
out of scalwith the linejoining Point 148 with the Musuna/Musura channel.In addition, on
l thisnew version of thsketch the linejoining Point 1439with Serpents'Island is completely
out of scale with the line joining Point 1439with Point 1438: the formershould be longer
than thelatter (22,227.6 m. compared with 21,750.0rn. ) hereas it is depicted in Figuras
l noticeably shorter (6.2 cm. compared with 7.1 cm.). An accurate placement of Serpents'
Islandon the sketchwould requireitto beatleast acentimetre further to tnorth east, which
l
in turn affecttheaccuracy of the depiction othe segment of thearcaround Serpents'Island
shownonthe sketch (astowhich see above, paragraph.5-56).
5.98 Romania seeks to place the general Procts Verbal 1974, together with the ProcZs
Verbamof 1949and 1963,within the frameworkof Articles74(4) and 83(4)of UNCLOSas
agreementson "questionsrelating to the delimitation ofthe exclusiveeconomic zone or the
continentalshelf"". As such, so Romania contends,under those Articles thedelimitation of
the Ukrraine-Romaniacontinental shelf and EEZ "shall be determined inaccordance with the
provisions of that agreement". Romania, however, as will be shown in Chapter 6,
misrepresents and misinterpretsArticles 74(4) and 83(4), andmischaracterises thescope of
the1949,1963 and 1974 Procis Verbaux.
98 See above,para.5.55.
* RM,paras.7.4-7.6. 5.99 Those two provisions of UNCLOS do not refer, as Romania (mis)quotes them as
referring, to "agreementson 'questionsrelating to the delimitation of the exclusive economic
zone or the continental shelf"'00T , his isa misleading elision of the texts of the Articlesin
question. In the text the reference to agreements is quite distinct from the reference to
questions of delimitation, and it chstorts the meaning of the paragraph to link the two as
though they constituted a single reference to "agreements in force relating to the
delimitationt'.The referenceto an agreementis to the existence of a condition which mustbe
satisfiedbefore the questions relating to delimitation come intoplay.
5.100 Paragraph 4 of each of the Articles begns "Where there is an agreement in force
between the States concerned, ..":i.e .he existence of "an agreement" - the nature of which
l .
I is not referred to-is a condition to be satisfied before one applies the substantive part of the
l paragraph, namely "questions relating to the delimitation ... shall be determined in
accordance with the provisions ofthat agreement".This begs the question as to the nature of
I the agreement which is here being referredto. To answer that questionparagraph4 has to be
I read inthe context of the ArticIe as a whole. Paragraph 1 stipulates that delimitation isto "be
l
l effected by agreement"; paragraph 2 deals with the situation which arises "If no agreement
1 can be reached"; paragraph 3 deals with what is to happen "Pendingagreement as provided
, for in paragraph 1";then comes paragraph 4, dealing with the situation "Where there is an
agreement".The progressionthrough the paragraphsfollows a logical and natural order,from
I
which it follows that the agreement being referred to in paragraph4 is an agreementwhich
, effects "the delimitation of the continental shelfEEZ between States with opposite or
I-
adjacentcoasts". This is entirely consistent with the rest of paragraph 4,which stipulates how
i
l questions relating to "the delimitation" lie., the delimitation effected by the agreement
I referredto) are to be dealt with - namely, they are to be dealt with "in accordance with the
provisionsof that agreement".
5.101 As explained, the various ProcBs Verbaca 1949-1974 do not delimit anycontinental
shelfbr EEZ boundaries: they are therefore not agreementsof thekind referred to in Articles
74(llia 8n3(1) and to which Articles 74(4) and 8319)refer back -even if, which is denied,
the various 1949 and other early procL verbaux could be construed as dealing with the
I
lcontinental shelf or EEZ which were not accepted concepts at the time1*'.They are not
therefore agreements in accordance with the provisions of which questions relating to the
delimitation of the EEZ or continental shelf are, under Articles 74(4) and 83(4), to be
detemi ned.
5.102 Moreover,and in any event, those Procis Verbaux1949-1974 are not (as Romania
refers to them) agreements "establishing the direction of the maritime boundary on the
12mile arc around Serpents' or "establishing the initial segment of the maritime
boundary between them, from Point F ...on the 12-mile arc around Serpents'Island"'". As
explained above, the so-called "initial segment" of the arc- the 22" of arc depicted on map
sheet 134'" - was initially in 1949 no more than the outer limit of the Soviet Union's
territorial seaand part of the whole boundary between thatterritorial sea and the adjacent
high seaslo5,while after Romania increased the breadth of its own territorial sea to 12 n.m.
that 22" segmentof arc became the boundarybetween Soviet and Romanian territorial seaslo6.
At no time has that segment of arc had any other character as a maritime boundary; in
particular,ithas atno time served as a boundary delimitationbetween the areas of continental
shelf and EEZ appertaining to the Soviet Union (or Ukraine) and Romania. It is accordingly
wholly erroneous for Romania to assert that the 12 n.m. breadth of water area surrounding
Serpents'Island was agreed to have "had the character of an all-putpose maritime boundary"
(emphasisin original) and that in consequence "thereexisted a delimitation betweenRomania
and the USSR around Serpents'Island to the effect that Serpents' Island was limited to a
12nmzone, and that zones to the south of thatboundary appertained to R~rnania"'~' .orhing
in the termsor accompanying mapor sketches of the series of agreements in theperiod 1949-
1974 supportsanysuch conclusion. The 12n.m. zone was a boundary for theSoviet Union's
sovereign area, i.e., its territorial sand said or implied nothing about the limits for those
less-than-sovereignty rights (such as sovereign rights for limited purposes over .the
continental shelf and EEZ) whichsubsequently became established in international law and
1°* Seeabove,paras5.71-5.72.
102 RM, para.7.6.
RM, para7.11.
'04 see above,para.5.50.
'05 Seeabove,para.5.56.
106 Seeabove,para.5.82.
107
M, para.11.20. which affectedareas appurtenant to the Soviet Union's land territory as represented by
Serpents'Is1and.
l 5.103 Ukraine'sdenial that any such consequences flowed from the 1949-1 974 agreements
does not mean thatUkraine isnow seehng todeny their binding character. Ulcraineaccepts
the commi trnentsflowingfromthose agreements,as wellas thegeneralprincipleof territorial
stability to which Romaniahas referredlog.But thosecommitments extend only so far as the
terms of the various instruments provide,and do not extendto the extravagantif not fanciful
~
interpretationwhich Romania seeks to place onthem.
D. Soviet-RomanianBorderNegotiationsAfter 1974
l 5.104 There were no substantial deveIopments in Soviet-Romaniannegotiations on this
l
particularboundary issue before August 1991 when Ukraine resumed its independent
1
statehood. Thus the situation at thend of the Soviet Union'sera was essentially as itwas at
the conclusion of the generalProcds Verbal 1974.As expIainedin the preceding paragraphs,
I
l thatsituation was that:
l
l there was no express verbal agreement between Romania and the Soviet Union as to
I (i)
the southeastwardand eastward extent ofthe boundary line beyond Point 1439 and
aroundthe12n.m.arc surrbunding Serpents'Island;
(ii) the only depictions of the extent of that line went no further than the 22" of arc
depictedon map sheet 134 annexed to thegeneral 1949 Proc2s Verbal;
(iii) the waters within the 12 n.m. arc surrounding Serpents'Island were part ofthe Soviet
Union'sterritorial sea;(iv) the waters outside and southward of that arwere (save for the 22" of arcimmediately
to thesoutheastofPoint 1439)high seas;
the waters southward of the line joining Points 1438and 1439 and beyond, as far as
(v)
the southeastern limit of the22"of arc, are part of Romania's 12 n.m. territoriasea,
and beyondthat distance are high seas1@';
(vi) the two States had not come to any agreement about the extent (whether laterally or
frontally)of their continentalsheIEorEEZrights in and under those (or other) areasof
highseas.
5.195 Althoughthere wereno substantialdevelopments specifically addressing border issues
after 1974, and the Soviet-Romanian negotiations on continental shelf and EEZ delimitation
which ended in 1987 (see next section), in the final years before the break-up of the Soviet
Union Romania did attempt to re-open theterritorial question with regard to tislands in the
Danube Delta as well as Serpents'Island.In 1991Romania handed to the Soviet Ambassador
in Bucharest an Aide Mdmoire which questioned the validity of the instruments concluded
between 1940 and 1948 relating to the delimitation of the Soviet-Romanian State boundary
(including the 1948Protocol). The Romanian Aide Mkmoiredoes not seem, however,to have
had any thing to sayabout the statusorsignificanceof the 12n.m. arc around Serpents'Island.
The Soviet Foreign Ministry prepared a draft reply to this Romanian Aide Mkmoire, but
although itappears to have been discussed in Ukraine, it doesnot appearto have been sent
before Ukraineresumed itsindependent statehoodlater in the year.
E. Soviet-RomanianContinentalShelfand EEZ Negotiations 1967-1 987
5.106 While thereappearto have been no further negotiations after 1974between the Soviet
Union andRomania directly related to theseborder issues around Serpents'Island, there were
'09
Note, howeverthatthe definitionof "hiseas"changed with thentry intforceOFUNCLOSfor
thoseStatePartieto itSeeUNCLOS, Article 8compared withArticle 1of theConventionothe
HighSeas 1958. Soviet-Romanian negotiations between 1967 and 1987 on the continentalshelf andEEZ.Ten
!
rounds of negotiations took place: the first three (in 1967, 1972 and 1974) were between
technicalexperts onIy, whilethe Parties' full delegations took part in the remaining seven
rounds(in 1975-1978,1980, 1986and 1987).
5.107 However, those negotiations Ied to no agreement on continental shelf and EEZ
delimitation. The Soviet Union, of courseisnot a partyto the present proceedings, andits
records of what transpired ithe negotiations are not before the Court. Fits partUkraine
~
l has no access to those recordand cannot thereforestudythem ormake them availableto the
Court. Romaniadoes apparently have itsown records of the negotiations, but the documents
I
whiclhRomaniahas submittedare incomplete (beingonIyextracts chosen to serve Romania's
l
own purposesH0a )nd aredevoid of anyindication of their context. Those negotiations are thus
I .
isrelevanttthe present proceedings.
5.108 Upon regaining its independence in 1491Ulaaine took up negotiationswith Romania
unaffected by what might have transpired, without any agreed outcome, in the Soviet-
Romanian negotiations of1967-1987.
5.109 It is nevertheless worth noting that Romania has recalled thatthe head of the
Romanian delegation, at the tentandfinal roundof negotiationson 1-2October 1987,is said
to havesummed up the Romanianposition as follows:
"As atthe dateof the conclusion o[the19491Psoch Verbal the breadthofthe
Romanian territorial seawas of 6 miles,theagreed delimitationline on that
sectorseparatedboth territorial waters the two States and areas that, the
absence of any agreement, would have belonged to the high seas.Thatis why
we are right to consider that, in 1949, our governments established a sui
generisdelimitation line, which confirmed the pass-overof Serpents'Island to
the USSR and allocated to it, inpart explicitly and in part implicitly, a
semicircular maritimespace,with aradius of 12miles,whoseexterior limit on
the segment separating Romanian waters from Soviet waters received the
l characteristics of a State boundary. Whatwas agreed then is the maximum
I effecthat canbe givento this island""'.
110 AnnexesRM 28,RM29, RM 30,andRM 31.
"' QuotedatRM, para5.15;andAnnexRM 31. 5.110 This purported explanation of the arrangements agreed in 1949is unconvincing, and
demonstrates Romania'sbasicmisunderstanding or misrepresentation of the events of several
decades earlier. It is an attemptin 1987to explainwhat wasdone nearly49 years before,but
without sufficient attentionto the surroundingdetails. Thus:
i
i) Since atthe time (1949) Romania only claimed a 6 mile territorial sea, it follothat
thewaters beyond that 6mile limitwerehigh seas (above, para. 5.67);
(ii) it equally follows that the line between Romanian and Soviet temtarial seas out to
that B mile limit was a line separating the two States' territorial seas (above,
paras,5.65-5.66);
(iii) and itequally follows thatthe line beyond that 6mile point separates Soviet territorial
seas(of 12miles)from the high seas (above, para. 5.67);
(iv) the Romanian argument that the waters beyond the Romanian 6 mile limit "would
have" been high seas "in the absence of any agreement",therebysuggestingthat there
had been some relevant agreement to the contrary, ignores the undoubted facts that
(a)high seas were at that time understood to be "allparts of the sea that are not
included in the territorial sea or in the internal watersaoState"11z,nd (b) nothing in
the 1949Frocks Verbam or in any of the later agreed instruments said ornecessarily
implied any "agreement" about the waters beyond the Romanian6 (OF later, 12)mile
limit not beinghigh seas;
(v) Romania'sreference to the line established i1949 and confirmed in later instruments
as a "delimitation"line misrepresents the language of those earlier agreements, which
refers to a "boundary" or "border" line, which is a tern capable of covering both a
boundarybetween two adjacent areas of sovereignspaceand an outer limit of one area
of sovereign space:there is no suggestion in the 1949 or later textsthat the parties
were "delimiting"their general and potential future maritimespaces;
112
Conventionon thHigh Seas,1958,Articlel. (vi) Romania'sstatement that the governments allocatedto Serpents'Island"asemicircular
1
maritime space" is not borne out by anything contained in the 1949or later texts,or
the maps or sketches accompanying them: the most that those documents do is
indicate a short 22"of arc sunnin south east from Point 1439, with no indication by
word or depiction thatthe line follows thearc any further {indeed,such indication as
there iis to the contrary)- and certainlynot all thway round, "semicircularly", to a
pointon the 12n.m. arc dueeast of SerpentstIsland;
~
(vii) Romania'sassertion that the external limit of that 12n.m. maritime space "separat[ed]
Romanian waters from Soviet waters" ignoresthe factthat nothing in Romanian law
orpractice in1949 made any waters as far out asthemaritime space around Serpents'
Island into "Romanian waters": at that time the outward extent of Romanian waters,
l under Romania'sown laws, was 6 miles from itsmainIand baseline, and any claim
l
thatthe waters lying generally to the south of Serpents' Island were "Romanian
1
waters" would have involved a claim to a territorialsea of a breadth of more than
12miles which was not only greater than thatprovided for under Romanian law but
also greatethan was permissible atthe time (ornow) underinternationallaw; and
l
l (viii) the assertion that what was agreed in 1949 was a 12 n.m. maximum effect for
l .
Serpents'Island isnot borne out by anything inthe 1949 or latertexts:the fact is that
the 12n.m. limit around Serpents'Island whichwasrecognisedin those texts was the
extent of territorial sea establishedby the Soviet Union (see particularly above,
para.5.77).The 1949 agreementcanied with it no implication that maritim lmits in
and under areas of highseas fordifferent purposes,which in 1949 were yet to become
established,were being foreclosed - particularly given that continental shelf rights,
onceestablishedin customary international law, are acknow'ledged to berightsvesting
automatically ipso jure in the coastal State, and as such requirespecific and clear
1 actionif they are to be derogated from. Those (future) dispositions regarding State
rights in respect of areasof high seaand its seabedand subsoil remained, in 1949,to
!. , bedealt with in whatever way might become appropriate in thelightof thedeveloping
lawof the sea.Section 6. Ukraine-Romania Maritime Negotiations After 1991
5.111 As with the Soviet-Romanian continental shelf negotiations, so too the various
Ukraine-Romania maritime negotiations which took place from 1991 onwards touched on
matters which could have some bearing on the issues presently under consideration. While
the substance of these negotiationsis touched on briefly andin part el~ewhere"~,the essential
fact remains that theydid not result in any agreement, which is why these present proceedings
are taking place. Nevertheless it will be convenient here to consider what, if any, relevance
those negotiations have for the status and significance of the12n.m. territorial sea arc around
Serpents'Island.
5.112 By way of preface it should be noted that on 12 September 1991 the Ukrainian
parliament enacted a law "On the State Succession of Ukraine""4. This law included
provision to the effect that the State border which existed on 16 July 1990 and separated the
territory of the former USSR from other States was adopted as the State border of Ukraine.
Ukraine thus inherited the State border-line with Romania which existed at the time of the
collapse of the USSR: this was consistent with generallyrecognized rules of international law
regulating State succession, particularly as reflected in Article 11 of the Vienna Convention
on State Succession in respect of Treaties 1978.Ukraine'sterritorial inheritanceincluded the
territorial waters around Serpents' Island and sovereign rights to the continental shelf and
EEZadjacentto this island.
A. The 1997 Treaty1l5
5.113 InArticle2.1 of this Treatythe Parties reaffirmedthat "theexisting border" - by which
was meant the State border -between them was inviolable. They said nothing further by way
of definition of what they meant by this reference to the existing border, which therefore
remains asit was hitherto, with no further additions or amendments. Even assuming that
'l4 See below,Chapter9.
IIS SeeAnnex36, Vol. 3.
UNTS,Vol.2159, p. 335,Annex2, Vol. 2."existing border" includesthe maritime State border between therespective territorial seas, it
is clear that Article 2.1 adds nothing to theconclusions which are to be reached, as indicated
aboven6,on the basis of the terms of the Procbs Verbaw of 1949, 1963 and 1974 and their
accompanyingmap and sketches. As shown, thoseinstruments only establish agreement upon
the 12 n.m. limit of the Soviet Union's territorial sea around Serpents' Island, and do not
establish an all-purpose 12 n.m. maritime boundary to the south of Serpents' Island and
continuing round to a point due east of the island.
Article 2.2 provided:
"2. The Contracting Parties shall conclude a separateTreaty on the regime of
the boundary between the two states and shall settle the problem of the
delimitation of their continental shelf and economic exclusive zones in the
Black Sea on the basis of the principles and procedures agreed upon by
exchange of letters between the Gnisters of foreign affairs, which shall take
place simultaneously with the signature of the Treaty. The understandings
included in this exchange of letters shall enter into force simultaneously with
entry into force of thjs Treaty."
5.114 This provision, too, adds nothing to the scope and effect of the agreements reached in
1949, 1963 and 1974, which remain as described above. It does, however, acknowledge that
there was still a problem over continental shelf and EEZ delimitation, and says nothing to
suggest that, as Romania now argues, that delimitationline had already been agreed as far out
from the shore as a 12 n.m. point due east of Serpents'Island.
B. The 1997ExchangeofLetters
5.115 That conclusion is not affected by the fact that Article 2.2 refers to delimitation having
to be on the basis of the principles and procedures agreed upon in the simultaneously
concluded exchange of letters between Ministers of Foreign Affairs constituting what is
known as the 1997Exchange of Letters1I7.
See particularlyparas.5.77.5.92 and5.102-5.103.
!l7 Annex l,Vol. 2.5.116 Paragraph 1 of that the 1997Exchange of Letterscommitted Ukraine and Romania to
conclude aTreaty on their State BorderRegime,
"on the basis of the principle of succession of states with regard to borders,
accordingto which, declaration of independenceof Ukraine shall not affect the
existing border between Ukraine and Romania as determined and described by
1961 Treaty on the Regime of Soviet-Romanian State Border and relevant
demarcation documentseffective as of 19July 1990 ..."
That reference back to the 196l6Border Regime Treaty does not involve any amendment to
the existing boundary settlement, and as already notedH8,nothing in the 1961Border Regime
Treaty itself affected the conclusion to be drawn from previous instruments as to the legal
status of the waters on either side of the 12 n.m. arc around Serpents' Island, namely Soviet
territorial sea inside the arc and (except for a small sector seaward of Point 1439: see
Figure 5-12) high seas outside it.
5.117 The 1997 Exchange of Letters dealt separately with the continental shelf and EEZ,
showing that they were still in dispute and were not covered by the general reference in
paragraph l to the "border" settlement recorded in the 1961Border Regime Treaty. In effect
the parties accepted that the land borderhad been settled, and that it was time to move on to
the delimitation of their continental shelf and EEZ boundaries. Accordingly paragraph 4
committed the two States to "negotiate an Agreement on the delimitation of the continental
shelf and the exclusive economic zones in the Black Sea, on the basis of the following
principles and procedures" - and there then followed a number of relevant principles which
were to be applied in the negotiations on which the two States were to embark. As is
explained elsewhereHg,those "principles" do not themselves alter, or presuppose any
alteration of, the conclusions to be drawn from the actualterms of the 1949, 1963 and 1974
instruments. It is significant, however, that the "principles"do not include any mention of
earlier delimitation agreements which Romania now argues had already been concluded.
Indeed, duringthe negotiationsRomania never even raised the argument by which it now sets
such store, namely that it had beenagreed in 1949that there was a continental shelf and EEZ
boundary along the 12nautical mile arc to the south of Serpents'Island.
II9 See above,para. 5.87.
See Chapter 6, below. C. The 2003Treaty
5.118 Ukraine and Romania concluded a Border Regime Treaty 2003120a ,s foreseen in the
1997 Agreements. That Treaty entered into force on 27 May 2004. Article 1 of this Treaty
provides that the State border between Romania and Ukraine passes "onthe ground" (which
seems to imply that the Treaty is here referring to the mainland border) as defined and
described in the Soviet-RomanianBorder RegimeTreaty 1961, as well as in all the associated
demarcation documents, in force on the 16Ihof July 1990. The border is then described as
continuing:
"from border mark No. 1439 (spar buoy) along the external border of the
territorial sea of Ukraine around Zmiinyi island to the point with co-ordinates
of 45O05'21"N, 30°02'27"E, which is thejunction point with the state border
of Romania that passes along the external border of its territorial sea. The
territorial seas of the Contracting Parties measured from baselines shall be
permanently 12miles wide at the point of theirjunction".
5.119 Several importantpoints are to be noted about this provision.
(i) Romania again, and clearly, accepts that the 12 n.m. zone around Serpents'Island is a
zone of territorial waters;
(ii) the point of intersection the coordinates of which are given is acknowledged to be the
point at which Ukraine's 12 n.m. temtorial water boundary around Serpents' Island
intersects with Romania's 12 n.m. territorial water boundary measured from its
baseline: since this elaboration of the State border is stated (in the final sentence of
Article 1) not to represent a revision of the existing border between Romania and
Ukraine, it follows that the descriptionof the point of intersectionmarks no change to,
but only a precision of, the boundary which previously existed - i.e.t,at boundary
120
Annex3, Vol.2. was already, under previous agreements, a lerritorialwaters boundary going out to
sea only as far the point of intersection of the outerlimits of thtwo States territorial
waters;
(iii) it is particularly significant that Romania states in its Memorial that the agreed
terminal point ofthe territorial sea boundary (which Romania refers to as "Point F)
"'constitutesthe starting point of the delimitation Iinwhich the Court iscalled upon
to e~tablish"'~'t;his is an important admission that thereisno agreedcontinentalshelf
orEEZ boundary further to the east than thatagreed terminal point, and in particular
no agreedcontinental shelf or EEZ boundary as far east as any point on the 12 n.m.
territorial sea araround Serpents' Island lying due east of that island,as elsewhere
maintained by Romania;
(iv) theboundary is stated to continue "upto the point of [thegiven coordinates]":i.e., it
continues "up to" the point of intersection ofthetwo States'12 mile territorial waters
limits,with no provision for anyfurther continuation - which, of course,is consistent
with the concept of the State boundarybeing a boundarybetween areas subject to the
sovereigntyof each State, i.e.t,eir areas of adjacent territorial waters;
(v) thereis no suggestion in Article1 that beyond the point of intersection ofthe limits of
territorial waters there is an agreeboundary of any kind delimiting theextent of the
two States'continental shelf and EEZ: the remainder of the 12 mile limit beyond that
point of intersection is simply the boundary markrng the outer limit of Ukraine's
territorialsea around Serpents'Island.
5.120 Romania seeks to qualify these consequences flowing from the 2003 Treaty by
drawing attention to a declaration which it made atthe rime of signature of thatTreaty on
17June 2003'22 I.nthis declarati~n'~~Romania expressedthe hope that the signature of the
''l RM, para.7.19.
122 RM,para. 4.37.
Iu The declaratiis reproduceunderAnnex37, Vol. 3.Treatywould provide impetus for negotiations for the delimitation of the continental shelf
and EEZ, and "wishes to reiterate its position according twhich none of theprovisions of
the Treaty on the State Border Regime, including the mentioning of the geographical
coordinates of the last point of the Romanian-Ukrainian frontier affects in any way
whatsoeverthe process of delimitation of the maritime areas nor does it prejudgeupon the
result of this process". Romania repeated the substance of this declaration when the Treaty
entered into force'".
5.121 Ukraine responded to the Romanian Note of 17 June 2003 by noting that"s'orne
provisionsof this Treaty have directlegal andtechnicalconnection with thefuture Agreement
on the delimitation of the aforementioned spacebetween both States in theBlack SeaflLZ 5n
Romania'srepetition, in its note of 27 May 2004Iz 6,its Declaration of I7 June 2003,
Ukraineamplified its position by stating as follows:
"In this connection, the Ukrainian Side once again lays emphasis on the
organic political, juridcal and technical connection existing between the
mentioned instruments. The Ukrainian Side proceeds from the factthat this
connection was established in the Additional Agreement to the Treaty on
Good-neighbourlyand Cooperation Relations BetweenUkraine and Romania
dated 2 June 1997, when the Sides made the settlement of the problem of
delimitating sea areas in the Black Sea dependent onentering into forceof the
Treatyonthe Ukrainian-RomanianStateBorder Regime.
Following this logic, duringfurther negotiation process the delegations of
Ukraine and Romania considered both issues at the same time, constantly
emphasizing their interrelation, specifieallyithe partconcerning the role and
effect of the geographic coordinates of the last point of the Ukrainian-
Romanian state border, fixed in the Treaty, upon the delimitation of the
continental shelf and excIusiveeconomic zones of Ukraine and Romania in the
Black Sea. In thiscontext, the Ukrainian delegation made numerousexamples
of international practice, includingthe practice of the BlackSea States, which
are indicative of the fact that the delimitation of the continental shelf and
exclusive economic zones between states with adjacent coasts, including
E Ukraine andRomania, always begins with the lastpoint of the common state
border"'".
i
l'' / AnnexRM24.
12' Moteverbale No.72/22-432-2377of 30 Jun2003,Annex 39,Vol. 3.
'l6 :Note verbnleof27 May2004, Annex 38,Vol.3.
"7
~ote verbaleof22July 2004,Annex40, Vol.3.5.122 This Romanian statement is not, of course, an agreed term of the Treaty, and is as
such neither binding for Ukraine nor for theCourt.It can atmost be regarded as a unilateral
interpretativedeclaration; it cannot detract from,i.e., amendthe terms of the Treaty to which
the two States had agreed. While Romania may have sought to protect itself from certain
possible consequences which mightflow from the agreed terms of the Treaty, thatcannot
derogatefrom the agreedprovisions, whichestablish that:
(a) the 12n.m.zonearoundSerpents'Islandis a zone of territorial waters;
(b) the point of intersection the coordinates of which are given is the point at which
Ukraine's 12 n.m. territorial water boundary around Serpents' Island intersectswith
Romania's12n.m. tenitorial waters;
(c) the agreed tenitorialwaters boundary continues only "up to" the point of intersection
ofthe two States' 12 n.m. territorial waters limitswith no provision for anyfurther
continuation;
(d) the Treatyin no waysuggeststhat beyondthe agreed point of intersection of the limits
of territorial waters therisan agreed boundary of any kinddelimiting the extent of
thetwo States'continental shelf andEEZ;and
(e) in anyevent the"process"of delimitation of themaritime areas is not affectedby any
ofthe above points,nor do they "prejudgethe result" of that process: what they cl os
establishthe agreed startingpoint (i.e.,the territorial sea limits) on thebasis which
theprocess of delimitation will proceed, and theresult of thatprocess will follow by
application of the relevant rules of internatiolaw.Section7. Romania's 1997 Notification of Its Straight Baselines to the United
Nations
5.123 Romaniahas omitted to bring to the Court'sattention the important Note which, on
18June 1997, the Romanian Permanent Mission to the UN delivered to the Secretary-
General1''.By that Note, and in accordancewith Article16 of UNCLOS, Romania deposited
a chart depicting Romania'sbaselines for measuring the breadth of its territorialsea anthe
limits derived from those baselines, as well as a list of the appropriate geographical
coordinates. Although the chart,and the enlargedpart ofitdirectly relevant to the watenear
Serpents'Island, have already been reproduced as Figures 5-4 and 5-512' . he chart and the
relevant enlargement are for convenienceagain attached atFigures 5-13 and 5-14.The Note
of 18 June 1997 statesthat the map being submitted is a "mapcontainingthe national marine
spaces", yet the map (and the accompanying Statute) makes no reference toany Romanian
continental shelfor EEZ even though itisRomania's contention thatat least past ofthese
marine spaceshad been attributed to Romania by agreementhalf a century earlier.
5.124 The chart shows the first two points on Romania's baselines, numbered "1" (at
45"1051"N, 20°45'36"E)and "2" (at the eastern end of the man-made Sulina Dyke, at
45"08'42" 29'46'20"E).At:sea the chart statesthat it depictthe "outer limit of Romania's
territorial sea" as derived frothose basepoints.That outer limit runs from a point marked
"l"' (derivedfrom basepoint 1)along a sector ofan arc to a pointmarked "2"' (derived from
basepoint 2) and thence in a straight line in a generally southwarddirection, parallel to
Romania's baseline,to the nextturningpoint marked "3"'(derivedfrom basepoin t3).
5.125 Romania itself describes thisouterline as the 'buter limit of Romania'sterritorial
sea". This means that the sector of the arc between the points marked l' and 2' is
acknowledgedby Romania to be a territorialsea boundary. Moreover, that sector of arcis
depicted by a line using symbols which are the same as those used for the line running out
1
Annex41,Vol.3.
See above,para.5.47.,"(%.LFix.
*!p;q
;
&q#
- ''"F&,,
'.,,, ,
;l; -h-.- Enlargement ofRelevant
wartofMap Accompanying
Ramarm %iNotifilcatiton
theUnitledNationsafits
StraightBacem'-Is
I- from the shore ro point l',but different from the symbols used for the outer limitrunning
generally southwards from point 2'.The markingsused for the maritime lines out topoint 2'
clearly show that the lines represent a boundary with the neighbouring State, Ukraine,
whereas the different markingfor the Iine southwards from point 2'shows that that line irhe
outer limit of Romania's territorial sea facing on to the open sea - i.e.,a boundary of
Romania'ssovereign territorial sea, not a boundarybetween Romanian and SovietKkainian
~
1 . territorial sea.
I
5.126 A particularly significant feature of this chart is its depiction of the segment of arc
betweenpoints l 'and 2'Thatsegment ispartof the Soviet Union1s/Ulcraine'1s2nautical mile
territorialsea boundary round Serpents'Island. It isessentially the same 22" of arc as was
depicted on map sheet 134accompanyingthe general 1949 Proc2s ~e'erbol:'t~ he coordinates
of point 1'are virtuallythe sameas those theboundarypoint 1439 agreed in 194913', and the
I
coordinates of point 2'are virtuallythe same asthose agreed in 2003 as the end point of the
agreed territoriasea boundarybetween Ukraine and ~ornania'~~,and as the stamng point of
the delimitation which the Court is requested to rnakd3'.This chart thus clearly bears out
Ukraine'scontention thatall that was agreed in 1949was a territorialsea boundary, and chat
theboundary was to follow the 22 nautical mile arc around Serpents'Island only as far asthe
intersectionof Romania's (then prospective) 12 nautical mile territorial sea limit with the
12nauticalmile limit arounS derpents'Island - a point of intersection which gave riseto the
22" of arc subtended from Serpents'Island, as depictedon map sheet 134 accompanying the
general 1949ProcksVerbal.
"* See above,para5.50.
'31 Para.5.75 above.
132 Ibid.
133 See,para.5.119(iii)above. Section 8. TheCartographicEvidence
A. CartographicEvidencein General
5.127 Before considering the cartographic evidence in this case, Ukraine will first draw
attention to somegeneralconsiderations relatingto suchevidence.
1 5.128 Romania has attached a lot of weight to map evidence in alleged support of its claim
that the 1949 agreement established an almost semi-circular continental shelf and EEZ
boundary to the south of Serpentsysland. Romania has devoted no fewer than23 of its Map
, Annexes to this aspect of the case (adetailed review of these maps is carried out in an
l
Appendixto this Chapter, at pp. 135-145below)134R . omania has also, of course, devoted
l paragraphs1 l.26-11.38of its Memorialto the alleged significance of these maps.Romania's
l
: enthusiasm for the map evidence which it has adduced is in marked contrast to the caution
I
I with which international tribunals havetreated thevalue of mapevidence.
l
5.129 The classical statement of the Court'sposition in relation to map evidence is that of a
Chamberof the Courtin the Case concerning rheFrontierDispute(BurkinaFasov.Mali)135.
In that case the Chamber was notably cautious about the weight to be attached to maps as
evidenceof title. The Court said:
"54. ....[Tjh e hamber can confine itself to the statement of a principle.
Whether in frontier delimitations or in international territorial conflicts, maps
merely constitute information which varies inaccuracy from case to case; of
themselves, and by virtue solely of their existence, they cannot constitute a
ten-itorialtitle, that is, a document endowedbyinternational law withintrinsic
legal forcefor the purposeof establishing territorial rights. Of course,isome
cases maps may acquire such Iegalforce, but wherethis is so the legalforce
does not arise solely from their intrinsic merits: it is because such mapsfall
into the category of physical expressions of the will of the State or States
concerned. This is the case, forexample,when maps ape annexed to an official
text of which they form an integral part.Except in thisclearly defined case,
134 RM, para. 11.30.
135 I.C.JReports 1986p.554.The Chamber was composed of Judge Bedjaoui(President),JudgesLachs
and Ruda,andJudges ad hoc LuchaiandAbi-Saab. maps are only extrinsic evidence of varylngreliability or unreliability which
may be used, along with other evidence of a circumstantial kindt, o establish
orreconstitutethe realfact.
55. The actual weight to be attributed to maps as evidence depends on a
range of considerations. Some of these relate to the technical reliability of the
maps. This has considerably increased, owing particularly to the progress
achieved by aerial and satellite photography since the 1950s. But the only
result is a more faithful rendering of nature by the map, and an increasingly
accurate match between the two. Information derived from human
intervention, such as the names of placeas nd of geographical features (the
toponymy)and the depiction of frontiers and other political boundaries, does
not thereby becomemore reliable ...
56. Other considerations which determine the weight of maps as evidence
relate to the neutrality of their sources towarthe dispute in questionand the
parties to that dispute. Since relativeldistant times,judicial decisions have
treated maps with a considerable degree of caution: less so in more recent
decisions,at least as regards the technical reliability of maps.But even where
the guaranteesdescribed above arepresent, maps can stillhave no greater legal
value than that of corroborative evidence endorsing a conclusion at which a
courthas arrivedby other means unconnected with the maps.In consequence,
except when the maps are in the category of a physical expression of the will
of the State, they cannot in themselves alone be treated as evidence of a
frontier, since inthat event they would form an isrebuttable presumption,
tantamount in factto legal title. The onlyvdue they possess isas evidence of
an auxiliary or confirmatory kind, and this also means that they cannot be
given the character of a rebuttable or juris tanturn presumption such as to
effecta reversalof the onus ofproof."
5.130 It is against that background of judicial caution about the evidentiaryweight to be
given to maps when determining questions of title(to which questions of the extent of a
State'sentitlement to continentalshelf and EEZ rights may be assimilated) that the particular
mapsput inevidence by Romaniafall tobe considered.
5.13E Romania has submitted 23 maps in support of its argument as to the existence of a
semi-circular all-purpose maritime boundary to the south of Serpents'T~Iandl~~A . ny
consideration of the map evidence relating to thewatersaround Serpents'Island has to begin
with fourclearpropositions:i First,that none of the 23 mapsadduced by Romania falls into the category of "maps
[which]areannexedto an official textof which they form an integral part";
(ii) Second, as fully demonstrated in Sections 2-7 of this present Chapter, none of the
dealings between theUSSR (andlaterUkraine) and Romaniaestablishes the existence
of anyagreementupon anymaritimeboundary going beyond the agreedterminal point
of the territorialsea boundary at 45"OS121"N 30°02'27"E,and in particular none of
their dealings establishes any agreement as to the delimitation of the two States'
continental shelf and EEZ boundary:accordingly, no map can be regardedas visuaIIy
depicting a continental shelforEEZ boundary alreadyformally agreed verballyby the
States concerned.
(iii) As the Chamber of the Court saidin the Frontier Dispute case, even .in the most
propitious circumstances (and apart from maps annexed to treaties) "maps can still
have no greater legal value than that of corroborativevidence endorsing a conclusion
at which a court has arrived by other means unconnected with the maps"137S .ince
nothing in the 1949agreement(or indeed in anyother agreement)providesany basis
for Romania's alleged alI-purpose maritime boundary around the southern arc of
Serpents'Island'sterritorial seaboundary, there is nothing which depictions of such a
boundary on maps can be said tobe corroborating or confirming. Without any such
basis in. the documentaryrecord, the maps cannot in themselves alone create in
maritime areasa legal entitlement torights for which there ino other legal basis.
(iv) Moreover, the fact that "[tlhe only value [such maps]possess is as evidence of an
auxiliaryor confirmatory kind, ...alsomeans that theycannot be given thecharacter
of a rebuttable orjuris tanturn presumptionsuch as to effect a reversalofthe onus of
13'
I.C.JR.eport1986,p. 554,para.56(quotedatpara. 5.129above).
Ibid.5.132 Before examining in some detaileach of the 23 maps included by Romania in the
Map Atlas accompanyingits Memorial and said by Romania'3tg o be relevant to thealleged
delimitation around Serpents' Island, mention must first be made of one of the maps in .
Romania'sMap Atlas which, surprisingly,was not inciuded byRomaniain its catalogue of23
relevant maps. This is Map Rh3 A 11 (Romania-USSR Mixed Boundary Commission,
1949).This map ismapsheet 134which was annexed to thegeneral 1949Proc2s It
is significant because it isthe only cartographically reliable map which is annexed to an
agreement establishing a Soviet-Romanianor Ukraine-Romania boundary. Because of its
importance thismapis reproducedagainhere asFigure 5-15.
5.133 The circumstances in which this map was created have been set out at
paragraphs 5.48-5. abo0ve.As theremade clear, the map depicts only a very smallsectorof
the 12 mile territorial searc around Serpents'Island, namelythe 22" of arc extending from
where the territorial sea boundary meetsthe Serpents'Island arc at the buoyat Point 1459to
where Romania'sprospective 12 n.m. territorial sea boundary intersects with the arc around
Serpents'Island. Since themap depicts that 22'of arc as stoppingclearlyshort ofthe bottom
of the map it is evidenthat thatlimit tothe extent of theterritorialseaarc was intentional
and not accidental.
5.134 It isthat map, with thosecharacteristics,whichwas annexedto the Parties'agreement
constituted by the general 1949Procbs Verbal. As such itis, in the languageofthe Chamber
in the Frontier Disput cease141,one of those "cases [in which] maps may acquire ...IegaI
force ...because sbch maps fall into the categoryof physical expressions of the willof the
State orStares concerned. This is thecase, forexample,whenmapsareannexed to anofficial
text of which they form an integral part".Itis thus only as far as the southern end of that
limited 22" of arcthatthereexists a map which has acquired legal force.
5.135 No other map amongthe 23 chartsreferredto by Romaniais of the same character.
Since the categoryof maps constituting physical expressionsof the will of the StateorStates
13' RM,para.11.30.
140 See above,paras.5.48-5.50and Fig5-2and 5-6.
141 I.C.JReports1986,p.554,at para54(quotedaboveatpara.5.129).concernedwas seenby theChamber asthe onlycase("Except in thisclearly defined case")in
which a map can amount to "adocument endowed by international law with intrinsiclegal
force for the purpose of establishing territorialrights"142all the other maps now to be
considered can only fdl into the category described by the Chamber as "maps [which] are
onlyextrinsic evidence of varyingreliabilityorunreIiabiIi"l".
5.136 These other 23 maps put in evidence by Romania are examined in detail in the
Appendixto thisChapter.They arethere examinedin chronological order, and on thebasis of
their descriptionsasgiven by Romania in its Map Atlas. These 23 maps are to be found at
Maps RM A 15-42, comprising 23 separate maps plus enlargements of parts of 5 of those
maps.
5.137 While detailedcomments on each of those 23maps are setout in the Appendixto this
Chapter,anumber of genera1comments are made here by wayof comment upon the 23 maps
considered collectively.
5.138 None of the 23 maps forms part of a written agreement establishing a Soviet-
Romanian or Ukraine-Romaniaboundary.Consequentlynone of them can be regardedas
a physicalexpression of the willafthe Statesconcerned.
5.139 None of the 23 maps correctly depicts the different legal elements which
comprise the maritime boundary off Ukraine's coast and to the south of Serpents'
Island.That maritime boundarycomprised two legally distinctelements: a boundary between
the sovereignterritorial seasof the SovietUnion and Romania (extendinguntil the 1950s up
to 6 mm. from the mainland coast, and subsequentlyup to 12n.m. from the coast),andthen,
beyond thatcommon territorial sea boundary, a boundarybetween the Soviet Union's (and,
after 1991,Ukraine's)territoriasea andthe high seas lying beyondRomania's territorisea,
Instead of depictingthe maritime boundary in such a way as to indicatethe different legal
qualities of different stretchof the boundary, all 23 maps depict theboundasy with only a
singIt boundaryrnarhng.
l
14' ! Ibid.
143 : Ibid.I-I=Map 134Annexed to the 1949 he4s V~P~IEZE~5.140 None of the 23 maps contains any maritime boundary or other marking
indicatingthat to the south of the arc aroundSerpents'Island the maritime areas were
areas of either EEZ or continental shelf belonging to Romania.Although this is the
situationwhich Romania asserts has existed for over 50 years, and although there are
accepted chart symbols for continental shelf and EEZ boundaries, and although such
marlungsappear on someof the maps inrelationto other such boundaries (see,e.g. Map RM
A 25, which shows theUSSR-Turkeycontinental shelf and EEZ boundary, MapRM A 28
which depicts a fisheryzone off Romania'sSt.GheorgeandMapRM A 15 which depicts the
USSR-Turkeymaritime boundary), itis highly significantthatnone of those symbols or
rnarIungshas been usedon anyof the 23 maps(evenRomanianmaps) to attributto Romania
areas of continental shelf or EEZ lying immediately to the south of Ukraine's 12 n.m.
territorial sea arc aroundSerpents'Island.
5.141 The 23 maps do not make consistentuse of maritime chartsymbols. At thispoint
itmaybe helpful to notesome general considerationsas to the significanceof the symbols
usedon mapsof thishnd.
5.142 As an initiagenera!observation, boundarysymbols represent "[ilnfomation derived
from humanintervention, such as ...thedepiction offrontiers and other political boundaries,
[and1 does not thereby become more reliab'te"'4I4 n4.short,the fact that certain boundary
symbolsareused on (oromitted from) a map says nothing of decisivelegalvalue, and does
not mean that they correctlyrepresent the truelegalsituation.
5.143 Subject to that generalpoint, whereas thereis a measure ofinternational uniformity
about the use of symbolson maritime charts (see, for example,the relevant pageof the chart
of symbols used by the International Hydrographic Office ("MO") reproduced at Annex42,
Vol. 3), different symbolsareused on different maps filed by Romania without any apparent
expIanation.
'@
Frontier DispufIC.J. Repords 1986,582-583,para55.
I 5.144 Thus, thegenerally accepted symbol for an international boundary (a line made up of
alternate crossesand clashesC+ -+ - + -)is used on some mapsfor the arcaround the south of
Serpents'Island (e.g.Maps RM A 21-22, 23-24, 25, 31,32, 33, 34, 35, 36 and39-40),but a
different symbol is used for that arc on other maps(e.g. MapsRMA 16-17, 18, 19, 20, 26,
27, 28, 29, 30, 35and 38) and yet itappearsthat a third symbol is usedon Map RM A41. No
explanation hasbeen providedfor thisinconsistent use of maritime chart symbols.
5.145 Moreover,neither are the symbols used in a manner which strictly reflects the true
legal position as a matter of the law of the sea. This is apparent even on the basis of
Romania'sown hypothesis as to the maritime boundaries in the waters off Serpents'Island.
Thus Romania asserts chat the agreed maritime boundary comprises two sectors: the first
sector is the agreed territorial sea boundary running from the coast to the point at which
Romania's12 n.m. territorial sea limitintersects with the 12 n.m. territorial sea arc around
Serpents' Island, and the second sector continues, as (so Romania alleges) an all-purpose
maritimeboundary, along thatarcfrom chat point of intersection and thence around the south
of Serpents'Island until an unspecific point due east of Serpents' Island. This Romanian
hypothesis is illustrated in Figure5-16.
5.146 In terns of maritime boundaries these two sectors represent very dfferent legal
situations. The first sector isa true international boundary, separating different national
sovereign areas. There is no such true international boundary in the second sector: while
waters "inside"the arc are Ukraine'ssovereign territorial sea, the waters "outside"the arc are
l not Romanian temtorial waters. This part ofthe arc is thus,in termsof areas subject to State
l
sovereignty and even on Romania'sown hypothesis, adifferent kind of internationaboundary
from that in the first sectoritis aninternational boundary in the sense of an outer limit of
l
l Ukraine'sterritorial sea as againstan areanot subject to anState sovereignty.
l
5.147' The Romanian hypothesis,however, assertsthat the boundary in the second sector is
l I
! notjust the outer Iimt of Ukraine's12n.m. tenitofial seabut is alsoa Ukraine-RomaniaEEZ
I
and c;on.tlnentashelf boundary. But EEZ and continental shelf rights are not the same as
sovereignty, and it would follow that an international boundarysignifying the limits of areas
! of national sovereignty is inappropriatefor the depiction of EEZ and coniinentalshelf
~ . boundaries.
5.148 If weight is to be attached to the symbols used on the various maps relied on by
Romania, then it ialso noteworthy thatnone of those maps depictsRomania'sterritorial sea
limit, and only one of them depicts Ukraine'sterritorial sea limit beyondthe 12nrnarc around
Serpents'Island (MapRMA 23-24).
5.149 Ukrainedoesnot seek todrawfromthislack of symbols depictingterritorialsealimits
the conclusionthat Romaniadoes not have a territorial sea. Rather Ulcrainedraws from that
lack of symbolic representation,taken together with other inconsisteociesinthe use of map
symbols,the simple conclusion that no great legalweightcan be attached to the symbolsused
(ornot used) on these maps.Theymerely represent "human intervention" on the cartographic
record,and more than anythingelse they areincluded on maps as little more than amatter of
I
convenience for users. Hydrographerscannot be expected to reflect intheircharts all the
nicetiesof a complex legal situation, especially one which remains unresolved. Along this
stretch of coast what matters in practice are the lateral limits of relevant areas of State
l
1 sovereignty:off Romania's coast that involves a line extenchngout from the coastto a point
12 n.m. off shore, while off Ukraine's coastthatlateral line involvesa further extension of
that line aroundthe southern side of Serpents'Island-stopping, for convenience, dueeast of
Serpents'Island sincegoing furtherround to the northof the Islandwas unnecessary since on
thatside theIslandandits watersfaced "inwards"onto Ukraine's mainlandtenitories.
5.150 None of the 23 maps offers any explanation of why the final point on the semi-
circular arc around SerpentsqIsland is located where it is(i.e., due east of the Island).
The factis that theterminal point ofthe arc due east of Serpents'Islandissimply apoint of
convenience: it bears no relation to any point which might be relevantto the drawing of
maritime delimitation lines. Romania acknowledges that,if Serpents' Island were to be
wholly disregarded for delimitation purposes, the appropriate lateral boundary between
Romania's and Ukraine's (and formerly the Soviet Union's) territorialseas would be an
equidistance line running out from the coastal terminus of the land boundary. Thatequidistance line would not, however, runfrom the coastal terminus and thrbugh a point
12n.m. due eastof Serpents'Island,but wouldinsteadrun significantlyfurther
5.15 1 If thearcwhich is depicted asrunninground Serpents' Islandto a point dueeast of the
Island were to be, asRomania asserts,the all-purpose boundarywhich Romania says it is,it
would not only mean that the Soviet Union and Romania are to be understood as having
agreed in 1949 upon a boundary for maritime concepts which at that time were not
established in international law, and that the Soviet Union agreed in 1949 to give up to
Romaniaa large area of the continental shelf to which it had an automatic entitlement and a
large area of EEZto which it would lateracquiresovereign rights, but that in givingup those
then-non-established rights theSoviet Union also gave up such rights in areas lying well on
its own side of any equidistance line which would have separated Romanian and Soviet
waters.
5.152 Such a cumulation of improbabilities demonstrates the who11 y unrealistic nature of
Romania'sassertion that an all-purposemaritime boundary was agreed as farround as the
point depicted on Map RM A 16-17, due east of Serpents'Island -quite apart from the fact,
fully demonstrated in Section 4 above, that there is no basis whatsoever to show that there
was any such Soviet-Romanian agreement on an all-purpose maritime boundary as Romania
asserts.
5.153 Although Romania sustains that the depiction of an arc around Serpents'Island
extending as faras a point due east of the island is evidence of an agreement that the all-
purpose maritime boundary was agreed going thatfar round the island,this is fafrom being
the case. It is commonplace for maps to showboundaries outto sea simply on an approximate
basis and so far as necessary for the practical purposeswhich the mapis intended toserve,
particularlyas regards territorial appurtenanceThe depiction of the sovereignty limitaround
Serpents'Island does not need to go anyfurther round the island than due east ofthe island,
since it iclear thatto the north the Islandfaces towards the Soviet Union (andnowUkraine)
and away fromthe only oher State whichmight have pretensions in the area {Romania).
Many (and probably most) of the 23 maps derive directly or indrrectly from maps produced
l
14' I
;See RM Figures8(p.52) and29 (p.222).by the Defence authorities othe Soviet Union. Those authorities, beinconcerned with the
defence of theSoviet Union'sexternal borders, inevitably needed to baware of the Soviet
Union's "outer"limits.
5.154 Several of the 23 maps are self-evidently not intended to serve as maritime
boundary maps. These are Maps RM A 21 (and thus the partialenlargement atRM A 22),
35, 36 and 3 3.All of these were published afterthe continental sheland EEZ boundaries
between the USSR and Turkey, and between Bulgaria and Turkey, had been concluded.
Maps intended to bmaritimeboundarymaps would have included depictions of those agreed
boundaries,but these maps did notdo so.
5.155 Many of the 23 maps (and probably.rno ofsthem) are merelycopies of or are
based uponearlier mapsand thushaveno independentsignificance of theirown.This is
admitted by Romaniain a number of instances (asidentified in the Appendix thisChapter),
and in othersis readilyapparentfroma comparison of the maps in question (e.g. Maps RM A
35 and 36). In fact the cartographic underpinningsof many, if not most, of the 23 maps,
particularly thosdating from earlier years, are to be fouinSoviet maps and cartographic
data assembled by the Soviet hydrographicservices, motivated by the needs of the Soviet
Union'sBlack Sea fleet.
5.156 Romania'scolllectionof 23 maps conveys (no doubt intentionally)the impression
that thedepiction of thearcaroundSerpents' ~sland is thestandard practice, but thisis
incorrect. Ukraine isaware of at least five maps, from relevant and authoritative sources,
which carryno depictionof an arc to the south of Serpents' Island. These are three maps
published by Turkeyin 1989 (with a new edition in 2003), 1993 and 2000; one British
Admiralty chart No. 2232 published in 1995 and re-issued in 2004 ("BlackSea - Romania
and Uhne: Constanta to Yalta"),which although based on "Romanian and Russian
Governmentcharts of 1980 to 1994 with later corrections",omits any line aroundSerpents'
Island;and one published byRomania itself in 1994(beinga later edition othe 1982map at
RM A 29,but this time without the controversialarc).Thesefive maps areat Annexes 43-45,
Volume 3.5.157 Anysurveyof the mapsputin evidenceby Romania shows clearlythat
(i) only one of those maps has substantial legal value by virtue of being annexed to a
boundary agreement concluded by the parties (namely map sheet 134 atMapRM A
11;above paragraphs 5.48-5-50 andFigures 5-2,5-6 and 5-15),and
(ii) all the other maps - i.e., all the 2maps relied on by Romania - are (to use the
language of the Chamber in the Frontier Dispute'case) no more than "extrinsic
evidence of varyingreliability orunreliability".
5.158 In fact, allthose other maps are simplyirrelevant. The extensive arc which theyshow
around thesouth side of Serpents'Island and continuing to a point due east othatIsland is
simply an "outer limit" markingof theareasubject to Ukraine'ssovereignty (i.e.itsterritorial
seaboundary), and thewayin which that extensive arc is marked(with the samemarkingfor
the whole length of the maritime boundaryfrom the coast tothe point due eastof Serpents'
Island)does nothing to suggest that while the in-shore part ofthe Iine was a territorial sea
boundary the outer stretch of the line, around Serpents'Islahad some other character,such
as an "all-purposet'maritime boundary. Nothing about any of the maps, or their purpose or
provenance, suggests that they were intended to have any significance for the extent of
continental shelf or EEZ rights, or that they otherwisdepicted some kind of "all-purpose"
maritime boundary. The fact that the terminal point of the arc was depicted due east of
Serpents' Island was evidence of nothing more than thatthe cartographers followed a not
uncommon geographical practice as a matterof convenience.
5.159 The only maps submitted by Romania which mightpossibly be regarded as having
particularcharacteristicsapparently atodds with the legal position asit has evolved in the
relations between Ukraine and Romania are the Ukrainian map at Map RM A 23-24
(~~~dndix, paragraph 5.207) and the German map at Map RM A 41-42 (Appendix,
I
paragraph 5.192). But as there explained, neither the different ways in whichthe maritime
boundary is marked on the Ukrainian map, nor theappellation given to the waters on either
side dfthe outer sector ofthe Serpents'Island arc, support the arguments being putforward
i
Eby Romania. The apparent anomalies in those two maps are readily explicable on other
grounds, and do not override the legal situation asithas clearly evolved between the Parties
and as equally clearlydepicted on the one map which has legal value through being annexed
to theParties'boundary agreement.
5.160 Although Romania attaches significance to the fact that no maps depict any maritime
delimitation line running south from the 12mile arc aroundSerpents'Island'46,that fact does
not demonstrate anythingother than that -as both Partiesacknowledge, and as these present
proceedings demonstrate - their12 mile territorial sea limido not extend into those waters,
and there is as yet no agreed continental shelf or EEZ delimitation in those waters. Once a
delimitation isagreed (e.g.,as a result of these proceedings)no doubt suitable lineswillbegin
to appearon future maps.
5.161 Romaniahas also sought toargue that Ukraine, byfailing to protest againstpublished
maps, has thereby acquiesced in the position depicted on those - that being the
position, so itis said, which Romania puts forward in these proceedings. However,Ukraine's
consistently expressed position is that, apart from the agreedUkraine-Romanis territorial sea
boundary in the waters out to the point on the Serpents'Island arcagreedin 2003'48and the
rest of Ukraine'sacknowledged 12 n.m. territorial sea arc around Serpents'Island, there has
been no agreement between Ukraine and Romania as to maritime boundaries, in particular
those of the Parties' continental shelf and EEZs. Since there isnothing in the maps which
were published afterthe general 1949 ProcBs Verbal and its annexed map (at RM A 11)
which was inconsistent with thatUkrainian (and previously Soviet) position and represented
by that 1949 map, there was no call for Ukraine to lodge protests against those later maps.
There was, legally,nothing forUkraineto protest about.
l" "M, para.11.29.
147 RM, paras.11.E and11.56.
Id8 I.e43O05'21"N.30°02'27"E.5.162 It follows that Ukraine'sfailure to protest cannot amount to acquiescence by Ukraine
in any position represented by those maps which is inconsistent with Ukraine'srepeatedly
expressedposition, since there was no such inconsistency.
5.163 In anyevent, however, whateverthose post-1949 mapsmight appear to say or suggest
is essentialybeside the point.None ofthose mapshas anysubstantial legal value149 T.hey do
not even confirm or corroboratesome legally-basedproposition as to the allegedall-purpose
maritime boundary, since there is no such proposition to which such confirmation or
corroboration can relate1''.Since no Soviet Union-Romania or Ukraine-Romania agreement
establishes or even supports the existence of Romania's alleged dl-purpose maritime
boundaryextending around Serpents'Island to the "conveniencepoint" due east of the island,
the onlybasis for such a boundaryis the depictions on the post-1949mapsput in evidence by
Romania. However, not oniy are they equivocal, inconsistent and unreliable as to what it is
they depictin the wayof maritime boundaries,butreliance cannot be placed on mapsinorder
to "confinnor corroboratet'something which is itself based only on other similar maps, most
particularly so when the only map of legal value is thatannexed to the 1949 Procks Verbal
(i.e.map 134)which manifestly stops themaritime boundaryat a point well to thesouth west
of Serpents'Island and nowhere nearthe "conveniencepoikt".due east ofit"'.
Section9. Conclusion
5.164 Lookin bgack over the course of theagreementsconcluded between Romania and the
Soviet Union, and then Ukraine, the 2003 Border Regime Treaty can be seen as the
pen~ltimate'~'element in a series of eventsover morethan half a century which reveal a clear
and consistentpattern.Those events establish the agreement of the parties to their land and
territorial sea boundary as far outto sea as the final point agreed in that 2003 Treaty, and
support nothing whatsoever in the way of an agreement on a continental shelf and EEZ
14' 1 See abovc,para5.131.
See above,Section4.
l5 ISee above,for example,para.5.50
'52 The finalelement will,ofcourse, behe decision of the Court completithe task of maritime
delimitationwhichthePartiehavebegun butwhich only tookthemasfaroutto seaasthe outer limit
oftheir territorialwaters.delimitation linebeyond that final point. The clear and consistent pattern which events over
marethan half a centuryhave established has been sec outin thepreceding Sections of this
Chapter, and may be summarised asfollows.
In 1949 Romania and the Soviet Union made a start on agreeing their maritime
boundary beyond the mouth of the Danube.They did so by agreeing a generalProcbs
Verbaldescribing their agreed line. At a time when Romania claimedonly a 6n.m.
territoriasea while the Soviet Union claimed 12 n.m. their agreement could only be
Iimited, but itdid establish the startmgpoint of the boundary in the Danube Delta
(Point 1437) and the first two points out to sea (Points 1438and 14391,the latterof
which took the boundaryline out to the pointwhere it met the outer limiof theSoviet
Union'sterritorial waters around Serpents'Island; the line was also agreed to go a
further short,but verbally unspecified,distance following pastof the outer limitof the
Soviet Union'sterritorial watersaroundSerpents'Island.
(ii) But in 1949 only thefirst6 n.m. of this agreed line couldbe a proper Stateboundary
between their areasof sovereignty,whilebeyond that 6 n.m. limit theline agreedwas
no more than the outer limit of the Soviet Union's territorial waters - for the first
2 n.m. the line was its territorial sea boundary calculated fromitsmainland coast at
and to the north of the mouth of the Danube, and then for a further 5.1 n.m. it
followed the firstpart of the Soviet Union's 12 n.m. arc of territorialsea around
Serpents'Island. Itseems that, because of itown lesser claimto a 6 n.m. territorial
sea, Romaniamayatthis stage havebeen inhibited fromreferring to this purelySoviet
maritime limit as a "territorialea" limit,and it was instead referred to as a "Soviet
marine zone".
(iii) Although at this time (1949) Romania claimed only a 6 n.m. territoriasea, Romania
moved to a 12mm. tenitorid sea limit in 1951.That possibility wouldseem to have
been in mind alreadyin 1949 since it appears to have determined the distance to
which the agreedline followed the first part of the Soviet Union's 12n.m. territorial
sea arc around Serpents'Island -in effect, as indicated on Map 134 accompanyingthe
general 1949 Procts Verbal, the short distance beyond Point 1439 to the paint at which Romania'sprospective 12 n.m. territorial seawould intersect with the Soviet
Union's 12 n.m. arc around Serpentst Island. But since Romania had not actually
legislated for its 12 n.m. claim it was not possible to be precise about its
consequences, and as a result the prospective point of intersection could not be
preciselyidentified.
OnceRomania had moveddefinitively to a 32 n.m. territorial inthe 195Os, itwas
(iv)
possible forthe situatioto evolve further. This it did with Romania'sacceptance in
the 1963 Procks Verbal that the 12 n.m. arc around Serpents' Islandwas the arc
definingthe limit of thSovietUnion's'"territorialsea" aroundSerpentsysland.
(v) In 1997 the conclusionby Ukraine and Romania of theTreaty on Relations of Good
Neighbourliness and Cooperation effectively put an end to any lspute about their
common land boundary by the reaffirmation, in Artic2.2,of "the existingborder".
The final stage in agreeinthe common boundary between their sovereign territories
was then reached in 2003 with the conclusion of the Treaty on the Ukrainian-
Romanian State Border Regime, in which the two States acceptedthat the intersection
of their respective territorial limitson the 12 n.m. arcaround Serpents' Island,
which hitherto had not been specified but only indicated in a general wawas now
fixed at the point tcoordinatesof which they had agreedand which lay onlya short
distance along the 12 n.m. arc around Serpents' Island; theyfurther agreed thattheir
territorisea boundary went "upto", i.e.not further than, that point of intersection.
(vi) In concluding their various agreements from 1949 onwards the Parties were only
concerned with what was eventuallyto be their complete territorial seboundary in
/ that area, and were not concerned with their further continentalshelf or EEZ
I boundary.This theyconfirmed by acknowledgingin Article 2.2 of their 1997Treaty
1 that the delimitatiof their continental shelf and EEZ boundaries stillremaintobe
I settled: thiwas to be done throughnegotiations on the basis of principles and
l
procedures setout inthe1997ExchangeofLetters. 5.165 This account of the gradualprogression of the Partiessettlement of the firssection of
their maritime boundary off the Danube Delta bears out the view demonstrated in the
previous paragraphs of this Chapter that in concluding their various agreementsfrom 1949
I
I onwards they were only concerned with what was eventually to be their complete territorial
sea boundaryin that area, and were not concerned with their furthercontinentalshelfor EEZ
i
boundary.Having definitively fixed the full lengthof their commonterritorial sea boundary
l
and specified the coordinates of its finaeasterly point in their 2903Treaty, they put thaton
l
~- one side as already settled and moved on to the search for a settlement of their continental
I shelf and EEZ boundary - a search which, in the absence of a settlement reached through
negotiations, theynow pursuein thepresent proceedings.
l
5.166 One further point is remarkable by itsabsence. Romania's entire argumentin respect
of the alleged maritime boundary following the 12 n.m, arc around the southern half of
Serpents'Island is based on that boundary having been agreed as farroundthe Island as a
point due east of the island,identified by Romania as Point X: i.e.,a point 12 n.m. distant
from the island on an azimuth of 90". Nowhere is such a point referred to in any of the
numerous agreements concluded by the Soviet Union or Ukraine with Romania. Yet thisis
the vitally important point as far as and to the south of which Romania cJairns that ithas
alreadyacquired,and the Soviet WnionllJkrainehas alreadygivenup,all EEZ and continental
shelf rightsNot only is itfancifulto think that Statesdealwith such important rights on such
an imprecise basis, but thereisno legalbasis for such a point (other than the alleged 1949
agreement):Romania'sown maps show that ilies well tothe north of any equidistance line
calculated without any effect being gven to Serpents' Island153A. s for the alleged 1949
agreement,it has been shown with abundant clarity thatthere is nothing in the record toshow
any agreement to a boundary going as far as Romania'sPoint X due east of Serpents'Island.
The most thatthe record shows is agreement, as depicted on map sheet 134 annexed to the
general 1949Proc2sVerbal, to a territorileaboundary along22' of the Serpents'Island arc
beginning atPoint 1439 and ending south west of the Island at the point of intersection of
Romania's12n.m.territorialsea with the 12nrnarc around Serpents'Island.
RM, Figure8 and 29.Even thoseequidistance lineswere constructed bygguleffectttheman-
made featureofS9inaDyke.5.167 So far as concerns the cartographic evidence submittedby Romania,the only map of
any legal weight 3sthat which accompanied the 1949 Proc2s Verbal and depicted the
maritime boundaryas agreedin that instrument. Thatmap - mapsheet 134 (above,paragraphs
5.48-5.50,and Figures 5-2, 5-6and5-15) - shows anagreedmaritime boundary following a
territorial sea boundary along 22"ofthe Serpents' Island arc beginningatPoint 1439 and
ending south west ofthe Islandatthepoint of intersection of Romania's12n.m.territorial sea
with the 12n.m. arcaround Serpents'Island.All the othermapson which Romaniareliesare,
as shown in Section 8 ofthisChapter,defective and unreliablin one way oranother,and do
not provide a legal basis for the delimitation line which Romaniaclaims.Thosemapscannot
serve to establisa legaltitleto areas of continental shelfEEZ for which there is, in the
longline ofrelevantagreements,nolegalbasis whatsoever. APPENDIXTO CHAPTER 5
ROMANIA'S 23MAPS
5.168 Map RM A 16 and (in enlargement) A 17 (Soviet HydrographicService of the
Black Sea Navy, 1957). This map is admitted by Romania tobe the 1957 edition of a map
the firsedition of which was published in 1951.Romania has not provideda copy of that
1951edition.
5.169 The mapdepicts the "maritime boundary" with thesame symbol throughoutits length,
irrespective of the different international legal qualities of different lengths of that
"boundary". The only single legal quality possessed by that line is that it represented
throughout itslengththe outer extent of the SovietUnion'area of sovereignty.
5.170 This map is thus consistent with the view that the maritime line itdepicts is the
external limit of the Soviet Union's area of territorial sovereignty (i.e.the limit of its
territorialea), whether this limit occurswhere the Soviet Union's territoriasea abuts the
territorialeaof Romania ar where, beyond that&stance from the coast, itmarks the outer
limitof the SovietUnion" territorial seabefore thewaters become high seas. Such an "outer
limit" marlungof the area subject totheSoviet Union'ssovereignty is anentirelyappropriate
concernforthe SovietBlack Sea Navy,whose HydrographicService published themap.
5.171 Nothing in this map suggests that itwas intended to have any significance for the
extent of continentalshelf or EEZ rights, or that itotherwise depicted some kind of "all-
purpose" maritime boundary. Such a reading of themap is fanciful- as would a reading
which suggests thatsince the map does not depictthe temtorial sea limitof Romania along
itsBlack Seacoast thereforethe Soviet Union was denying that Romania had any territorial
sea along thatcoast. The simple fact isthat this map was not concerned with all the
~ refinements of territorial anmaritime rightsand claims in the area covered by the map,but
I simply with thepractical matter of th"outward" extent of Soviet territorial sovereignty.
I 5.172 Map RM A 26 (Maritime HydragraphicDirectorate of the People'sRepublicof
Romania, 1958), This map is admitted by Romania to be based on "Sovietmap no. 502".
Romaniahas not provided a copyof that Sovietmap, or givenits date.
5.173 This Romanian map - not surprisingly since it is based onanearlierSovietm-pcalls
for the samecomments as havejust been made inrelation to the 1957 Soviet maat MapRM
A 16-17. Thus the delimitation Iinedrawn on the map uses the same markinfg or thewhole
length of the line, whiltheline itself is an "outer limit" markingof the areasubject to the
Soviet Union'ssovereignty. Nothing in the map suggests that it was intended to have any
significancefor the extentof continental shelor EEZ rights, orthatit otherwise depicted
some kindof "all-purpose"maritime boundary.
5.174 Map IRR AI 27 (Maritime HydrographicDirectorate of the People" Republic of
Romania, 1959).This map is admitted by Romaniato be based on an earlierSoviet map,but
this time "Soviet map no. 507". Although Romania does not say so, there is in Romania's
Map Atlas a Soviet map numbered 507: seeMapRM A 18, which has thenumber "507" in
the bottom righthand corner. However,that "map 507" is the 1982edition'5, hich could not
thereforehave served asthe basis for MapRM A 27 which was published in1959. Anearlier
I editionof the Soviet mappresumably served as the basifor the 1959map at RM A 27, but
Romaniahas omitted to provide a copyof anysuch earlier edition.
5.135 To theextent thatthe pre-1959 editionofthe Soviet map no. 507 was thesameas the
later edition othatmap atRM A 18, thecomments about that later mapatparagraphs 5.180-
5.182 below arerelevant to the depictions on MapRM A 27. ThisRomanian mapRM A 27 -
again not surprisingly,since it is based on an earlier Soviet map - calls forthe same
commentsas weremade above in relation to Maps RM A 16-17 and 26.
5.176 Map RM A 28 (HydrographicDirectorateof the Socialist Republic of Romania,
1970). This Romanian map is said by Romania to be the 1970 edition of a map the first
edition of which was published in1953.It depicts - with thesame symbol throughout its
E
e
154
See Romania'scovernoprecedinMapRM A 18. length - a maritimeboundary running from thecoastal terminus of the land boundaryto a
point on the12 n.m.tersitoriasea araround Serpents'Islandapproximatelysouth-south-east
of Serpents'Island(at whichpoint tharcreaches the edge othe map).
5.177 Themap depictsafishery zone offRomania'sSt.Gheorghe, but has no indicatioof a
RomanianEEZ southof the Serpents'Islandarc.
5.178 This Romanian map RM A 28 calls for no other special comments. Nothing inthe
map suggeststhat itwasintended to have any generalmaritime boundary significance or any
special significance for thextentof continental shelf or EEZ rights, or thit otherwise
depicted some lundof "all-purposemaritimeboundary.
5.179 Map RM A 15 (General Directoratefor Navigation and Oceanography,Ministry
of Defence of theUSSR,31977 T)his map appears to be a later edition othe1957 map
which appears as MapRM A 16-17 (seeabove, para.5.166): it looks geographically similar,
andhas thesamesheet number ("500")at the bottom righhand corner.
5.180 Map RM A 15 was the map annexed to the 1978 Continental Shelf Agreement
between Turkey and the USSR. Its purpose was thus to depict the delimitation of the
continental shelf as between those two States. Although depicting thatboundaitused no
similar marking for any alleged continentalshelfboundary around the south of Serpents'
Island. In anyevent, the purpose:fwhich iwas prepared had nothingto do withany kind of
delimitation around Serpents' Island. Moreover, as a map annexed to a USSR-Turkey
Agreement,it was res interliosacsaso faras concerns Romania, and depictionsoflineson
itcannot giverise trights in favourofRomaniaand to thedetriment of Ukraine.
5.181 The map callsforno other specialcomment.In so farasthe mapis but arepetitionof
theearlier 1957SovietMap RM 16-17,it callforthesamecomments aswere made above in
relation to that Map.5,182 Map WM A 18 (General Directoratefor Navigationand Oceanography,Ministry
of Defenceof the USSR, 1982).This Soviet maphas already been mentioned as,inan earlier
edition, apparentlythe basis ftheRomanianmap atMapRM A 27 {seeabove, para 5.172).
5.183 Its depiction,by the same symbol throughout its length, of the maritime boundary
around Serpents'Islandis onlypartial, because of its closeness to the bottom edthemap.
But it shows the boundary in two parts:the first part runs from the coastal termiofsthe
land boundary toapoint veryclose to thebeginningof the arc aroundSerpents'Island (where
the line runinto the bottom edge of the map), anthe second parremergesfromthebottom
edge of themapsome 20 n.m. further eastand continues around the arcto the familiar point
due east of Serpents Island.
5.184 For the rest, being another Soviet maprepeating elements of earlier Soviet Maps, it
calls for no other special comments than were made above in relation to them (see
particularly paragraphs 5.166-5.169).
5.185 Map A 29 (Maritime HydrographicDirectorate of the SocialistRepublic af
Romania, 1982).Romaniaagainadmits thatthisRomanian map is based on an earlier Soviet
map, "no. 507". As with Map RM A 27, although Romania does not say so, there is in
Romania'sMapAtlas aSovietmapnumbered 507:seeMap RM A 18,whichhas the number
"507" in the bottom right hand corner. That "map 507" is the 1982 edition"',and could
therefore haveserved as the basis foMap RM A 29 which was also published in1982, but
thisisfarfromcertain.
5.186 To the extent thatthe 1982 editionofthe S0vie.tmap no.507 atRM A 18was used as
the basisforMap RM A 29, thecommentsabout Map RM A 18 atparas. 5.180-5.182above
are relevantto the depictions on Map RM A 29. In other respects the Romanian map at
RM A 29 -not surprisingly sinceitis basedon an earlier Soviet map- calls fothe same
comments as have been made above in relation to earlier Soviet maps. It may be noted,
howelver,that the arc around Serpents'Islanis notcontinued as far as aterminalpointdue
SeeRomania'scover note preceMapgRM A 18.eastof Serpents'Island because the xc ran into theedge of the map at a point somewhere
south-south-east of SerpentIsland.
5.187 Itshould furtherbe noted that the1994 edition of thismap (atAnnex 45) did not
depict any semi-circulararctothesouth of Serpents'Island.
5.188 Map Rh4A 20 (GeneralDirectoratefor Navigationand Oceanography, Ministry
of Defence of theUSSR, 1983).This 1983Soviet map is of limiteduse, sinceitonlydepicts
part of thearc lying to the southand east of Serpents' Island. does so using thesymbol
appropriateforthe Soviet Union'smaritimeboundary.
5.189 In so faras, likeother Soviet maps,it adopts featurescommonto such mapssince the
map at RM A 16-17,thismap calls for the samecomments as were made abovein relation to
thatand other Soviet or Soviet-based maps.
5.190 Map RM A 30 (Maritime Hydrographic Directorate of the Socialist Republic of
Romania, 1985). This Romanianmap just shows the maritime boundary from the coastto
part-way round the arc to the south of Serpents'Island. It depicts the boundary with the same
symbolsthroughoutits length.
5.191 In so fat asthismap adopts featurescommon to other similar maps sincthe map at
RMA 16-17, it callforno special furthercomments.
5.192 Map RM A 19 (GeneralDirectorate for Navigationand Oceanography,Ministry
of Defence of theUSSR, 1985).In respectofthe depiction othe maritime boundaryline this
Soviet map, like other Soviet maps, adopts features common to other similar maps sincthe
map atRMA 16-17, and calls for no furthspecialcomments.
5.193 Map A 39 and (in enlargement) 40 (HydrographicsandOceanographic
Serviceof the French Navy,1990).This French -i.et.hird Stat-map is, asindicated at the
bottom of the chart itself,simply a checked reproduction of chart N 310 published
previouslyby Turkey.The depiction ofthemaritime boundary on thisFrench map,by use ofthe same symbols throughout its length, is no different fromthaton most of the maps put in
evidence by Romania. Being substantially the same as the depiction in Map RM A 16-17 it
calls for no other special comments.
5.194 Map RM A 41 and (in enlargement)42 (GermanFederalInstitute for Maritime
Navigation and Hydrology,1991).This German (i.e., non-Black Sea, and third State) map
depicts themaritime boundary in the usual way, with the boundarybeing marked by the same
symbol from thecoastal terminus of the land boundary to the point on the arc due east of
Serpents' Island.The boundary symbol used is, however, throughout its length the symbol
appropriate for a land boundary. The depiction of the arc is broken due south of Serpents'
Island by the interpositionof the edgeof the map.
5.195 For the first time in any of the maps submitted in evidence by R~mania'~~ t,e
maritime boundary ismarked, along its straight line from the coasto thebeginning of the
Serpents'Island arc with "UdSSR" to thenorth of theline and "Rumanien"to thesouth of the
line: this is correct,because thatpoint thewaters on eitherside of the line are,respectively,
the territorialseas of thosetwo States. Where, after the break in the depiction of the arc
caused by the interpositionof the edgeof themap, the mapresumes its depictionof the arc,
that resumed section of the arc is again markedin the same way as theearlier, initial section
of the boundary. One can only speculate why the Germanhydrographers feltit appropriateto
do so, although one possibility which comes readily to mind is that without some such
making the resumed sector of the arc would appearunexplained on the map, and that
therefore in the interests of explaining what the line signifiedthe German hydrographers
simply (but incorrectly) adopted the common hydrographicpractice of repeating the marking
which theyhadgiven(correctIy) tothe initial section of the boundary,
5.196 Be thatas it may,it can be no morethan speculation.What is beyonddoubt, however,
is that there was no legal basis for the German hydrographers inserting those incorrect
markings on the resumed section of the arc. Nos are German hydrographers well placed to
have authoritative views on the course of the maritime boundary between Ukraine and
1
156 Other later maps bearing similarmarkingsthe Ukrainia2000 map atMap RM A 21-22 (see
para.5.204),andthRomanian 2003 mapsatMapRMA 35 and36(see paras5.212-5.3). Romania.Their views,lacking asthey do both legabasisand circumstantial authoritcannot
l "give"toRomania maritime areas which substantivelegal considerations'"andthe one map
~ which has fim legal weightdo notattributetoRomaniaH8.
5.197 Subject to that point, the depictionthe maritime boundaryis no different fromthat
on most of the maps putin evidence by Romania,and thus otherwise it callsfor no further
specialcomments.
5.198 Map RM A 31 (Maritime Hydrographic Directorate of Romania, 1993). Like
several other Romanianmaps, thismap is admittedlybased on other maps -in this case seven
Soviet mapsand two Romanian maps.Given their numbering, someof these other base maps
appearto be included in Romania'sMap Atlas, but others are not: the base maps which are
included appearto be themapsatMap RM A 30 (= Romanian map 1.250.01),Map RM A 19
(=Russian map 32100),andMapRMA 15and 16-17 (= Russian map 500).
5.199 Given the admitted extent towhich this map is in effect a copy oothers, ihaslittle
original,value. In the circumstancesisnot surprisingthatis has manyfeatures in common
withother maps in Romania'sMapAtlas, andcallsfor no additional special comments.
5.200 Map RM A 38 (Hydrographic Service,Ministry of Defence of the Republic of
Bulgaria, 1993).This Bulgarian (i.e., third Stamap is no differenfrommost of the other
maps in itsdepiction of the maritime boundary, using the same symbol throughout. It
accordinglycallsforno additionalspecial comments.
5.20I Map RM A 37(GeneralDirectorate for Navigation and Oceanography,Ministry
of Defence of the Russian Federation, 1994). This Russian map is in material respects
substantiallthe same as most of the other maps, although itonly depicts (usingthe same
symbol throughout) themaritimeboundary asfaras a pointon the arc due southof Serpents'
Island (because ofthe interposition of the edge of the map). It accordingly callsforno
additionalspecialcomments.
15'
Is8 Assetout above.para.51.3
I.e. msheet 134aMap RM A II.1 5.202 Map RM A 32 (Maritime Hydrographic Directorate of Romania, 1995). Like
other Romanian maps, this is admittedly based on other maps, namely (but without details
being given) "Bulgarian maps of 1982"and "Soviet maps of 1987(with small corrections)".
l
Given the admitted extentto which this map isin effect a copyof others, it has little original
value.
5.203 In the circumstances it is not surprising thais has many features in common with
other mapsin Romania'sMap Atlas,particularly the map at Map RMA 16- IT.It accordingly
calls forno additionalspecialcomments,other thanto notethat while itdepictsa fishing zone
off Romania'sSt. Gheorghe, it containsno depiction of anyRomanian EEZ to thesouth of
~ Serpents'Tsland.
5.204 Map PPh/PA 33 (Maritime Hydrographic Directorate of Romania, 1997). Like
. other Romanianmaps, this is admittedly based on other maps, namely (but without details
being given) "Mapsedited by the hydrographic services of Romania, Bulgaria,Russia and
I Turkey".Given the admitted extent to which this map is in effect a copyof others,ithas little
l
I originalvalue.
I 5.205 In the circumstances it is not surprising that ishas many features in common with
,
I other maps in Romania's Map Atlas, and accordingly calls for no additional special
l
l comments, other than that, while it could have depicted the Bulgaria-Turkeymaritime
i boundary, it did not do so, thereby showing that it was not intended to be a maritime
I boundary map.
5.206 MapRh4 A 21 and (in enlargement)22 (State HydrographicService of Ukraine,
Kiev, 2000).This Ukrainian map depicts the maritime boundary in the usualway, using the
sameisymbotl hroughout, but, likethe 1991 German map atRM A 41-42, with "Ukraine"
writtin to the northof the straight-line sector the boundary(i.e., from the coastto where it
joins 'thearc aroundSerpents'Island) and "Romania"written to the south ofthat line. That is,
of course, correct since in those areathe waters marked are the territorialseasof those two5.207 Otherwise, this map has many features in common with othermaps in Romania'sMap
Atlas, particularly the map at Map RM A 16-17, and accordingly calls for no addiriond
specialcomments.
5.208 Map RM A 34 (Romanian Maritime Hydrographic Directorate, 2000). This
Romanian map depicts the maritime boundary in the usual way, using the same symbol
throughout ,ustas in Map RMA 16-17, except that (because of the location of the edge of
the map) itonly depicts the linaeround the Serpents'Island arc to a point approximatelydue
south of that island. Itcalls forthe no other special comments.
5.209 Map RM A 23 and (in enlargement) 24 (Ukrainian State Hydrographic
InstitutionBranch "Ukrmorcartographia",2001). This Ukrainian mapis unusual in thait
depicts the maritimeboundaryalmostcompletely around Serpents'Island and not, as is more
usual, just as far as a point due east of the island. Since the boundary line also depicts
Ukraine'sterritorial sea boundary running northwards from the end of the arc around
Serpents'Island but not Romania'sterritorialsea to thesouth of the UkrainelRomania lateral
maritime boundary, the purpose of the map was clearly not to serve as a general rnaritime
boundary but simply to indicatethe limits of Ukraine's territorial sovereignty over all its
territorial sea area,both thenorth of Serpents'Island aswell asto the south.
5.210 That comprehensive depiction of Ukraine'smaritime boundary is given two separate
kinds of marking one running from the coast and following the arc around the south of
Serpents'Island to the usualpoint of convenience due east of the island, at which point the
other markingbegins and continuesfor therest of theterritoriasea boundary depicted on the
map. Romania draws attention to the factthatthe symbols used for the firskindof markings
represent the international maritime boundary, while the second kind of marlungsrepresent
the outer, seawardlimit of the territorialsea.The explanation fothisdifferential treatmentof
the maritime boundary markingslies in the point alreadymade in paragraph 5.151 above, to
the effectthatit isnot unusual for a depiction ofa boundary to deal differently with, onthe
one hand, the maritime area on that side of an island which faces towards the mainland
territoryofthe State towhich it belongs and, on theother hand, that sideof theisland whichfaces away from that State'smainland territory. The "outward"facingbounday cannobe a
true international boundary thewaters to the seaward of Romania's12 nm territorialsea,
since Romaniadoes not and cannot have sovereignty overthose waters: in so far asRomania
claims EEZ and continental shelf rights in those waters (cwhich Ukraine opposes),the
proper boundary marking would be that foran EEZ andcontinental shelf boundarybut no
such marlungappearson themap.
5.211 For cartographicpurposes the "outward" facing boundary is "internationain the
sense thatit separatesTJlaaine'ssovereignareas from areas not subject in international lawto
any other sovereigntyTo mark the "outward"facing boundaryas an international boundary
cannot serve,of itseto,establish thatsomotherState (such asRomania)has sovereignty or
sovereign righton the otherside ofthe boundary, particularly the absence of any other
basis for the assertion of ssovereignty or sovereign rightand as fulIy demonstratedin
Section4 above, there is no other basis for any such assertion. This map alone create
that basis. The only map whichdoes so isthemap at MapRM A 11, i.e., map sheet 134,
which was annexed to the general 1949 Procks Verbal - and which took the maritime
boundaryline on1y a verylimited distancealothe Serpents'Islandarc'59.
5.212 Apart from those points, the general depiction of the maritime boundary inMMap
A 23-24 follows the depiction onMapRM A 16-17,andcaIlsfor no additional comments.As
with all earlier maps relied on by Romania, nothing in the map suggests thatintended
to have any significance for extentof continentashelfor E;EZrights,oxthat iotherwise
depictedsome hnd of "all-purpose"maritime boundary.
5.213 Map WM A 25 wkrainian State Hydrographic Institution Branch
"'Ukrmorcartographia" ,003). This Ukrainian map follows the general manner of
depiction of the maritimeboundary used in mostof theother maps. Althoughthe mapshows
anEEZboundary betweenthe USSR andTurkey,it shows no equivalentlymarked boundary
arou" Serpents!Island. It calforno other additioncomments to those made in relation to
Map kh Al16-17andmost latermaps.
'I
15' See above, paras.5.48-5.50.5.214 Map RM A 35 (R~manian Maritime Hydrographic Directorate, 24103).This
Romanian map follows the usuapattern fothe depictionofthe maritimeboundary, withthe
boundary depicted by the same symbois throughout its length. However, as with the
Ukraini aanpatMapRM A 21-22, this Romanianmap depicts the maritime boundary with
"Ukraine" writtentothe north of the straight-line sector of the boundary (i.thecoast
to where itjoins the arc around Serpents'Island) and "Romania"written to the softthat
line.Thatis of coursecorrect since in those areasthe waters markedtheterritorial seas of
those two States.Otherwise, the general depiction of the maritimeboundary in MapRM A 35
follows the depiction Map RM A 16-17,andcalls forno additionacomments.
5.215 Map RM A 36 (Romanian Maritime Hydrographic Directorate, 2003). This
Romanian map is based on the same sourcesas,and appears tobe very similar tRM A 35
except forbeing ata larger scaleand thus covering a smallerarea.But there areno other
substantive differencesin the depictionthe maritime boundary,andthismap is therefore
subject to the samecommentsasthat othermap. THEAPPLICABLELAW
i Section1. Introduction
6.1. The delimitation dispute having been properlyreferred to the Court for resolution,it
follows that theCourtIsobliged to decide that disputein accordance with internationallaw, as
is laid down in Article38.1of the Statute:
"The Court, whose function is to decide in accordance with international law such
disputesas aresubmitted to it,shall apply.."
and then follows the well-known listing of international conventions, internationalcustom,
general principlesof law, and (as subsidiary means for the determination of rules of law)
judicialdecisions and teachings of publicists.
6.2. It is not necessary to look further thanthat provision in order to determine the law
whichthe Court has toapplyin this case.
6.3. However, Romaniahas asserted that the Court is requiredto apply certain"principIes"
listed in paragraph 4 of tlhe1997 Exchangeof Letters. Given Romania's approach it is
therefore necessary to say something about the Ukraine-Romania Agreements concluded in
1997and the Treatyconcludedin 2003.
Section 2. The 1997Agreements
6.4. Following Ukraine's resumption of independence in 199l, Ukraine and Romania
embarked upon new negotiations to establish a firmbasisfor their future relationsincluding
settlement of their differencesoverdelimitationof theircontinental shelfand EEZboundaies.6.5. On 2 June 1997 the Pastiestothe present proceedings concluded the 1997 Treatyi. In
Article2 of thisTreatythey reaffirmed the inviolabilitofthe existing borderbetween them2,
and agreed to concIudea separateTreaty on the regime of the border between the two States;
and they furtheragreedto
"settlethe problem of the delimitation of their continental. shelf and of economic
exclusivezones inthe Black Sea on the basis of the principleand procedures agreed
upon by an exchange of letters between theministers of foreign affairwhich shall
take place sirnultaneously with the signature of the Treaty. The understandings
included in this exchange of letters shall enter into force simultaneously with entry
intoforceofthis Treaty".
6.6. That simultaneousexchange of letters is referredas the 1997Exchangeof Letters3.
By paragraph l of this Exchange of Letters the Parties agreedtoconclude a Treaty on their
StateBorder Regime4.By paragraph 4 the Parties agreed to "negotiate an Agreement on the
delimitation ofthe continentalshelf andthe exclusive economiczones in the Black Sea", on
the basisof certain principland procedures which were then setout5.
6.7. Paragraph 4(g) of the 1997Exchange of Letters provided farnegotiations on such an
Agreement to beginas soon as possible; anparagraph4(h) provided thatifthey did not resuIt
in the conclusion of an Agreement then in certain circumstances either Party could request
that the question of delimitation solved bythi Csourt6.
6.8. Both the 1997 Treaty and the 1997 Exchange of Letters entered into force on
22 October 1997.
jAnnex 2,vol.2.
[See above,para.2.3.
4 '1hnexl,Vol.2.
5 1See above, para116.
6 Seeabove,paras2.4 and2.5.
I Ibid. Section 3. The 2003 Treaty
6.9. One of the circumstanceswhich had to be satisfied before the Court couldbe seised of
the question of delimitation was the entry into force of the 2003 Treaty on the Ukrainian-
Romanian State Regime Border between the two States which they had undertaken to
conclude in Article 2 of the 1997Treaty. That 2003 Treaty was concluded on 17June 2003',
and it enteredinto force upon the exchangeof instruments ofratification on27 May20048.
Apart from the significance tobe attached to the substantive provisionsof the2003 Treatyg,
the fact oitsentry into forcefulfillea conditionwhich had to be satisfiebefore the Court's
jurisdictioto hear thepresentcase couldbe established.
Section 4, Romania's Arguments Regarding the Five "Principles" Set Out in
Paragraph4 of the 1997Exchangeof LettersAre Mistaken
6.10. Romania'sargument thatthe Court isrequired to apply certain "principleslisted in
sub-paragraphs(a) to(e)of paragraph4 of the 1997Exchange of Letters is mistaken, on two
counts.
() First, the "principles"setout in paragraph 4 do not applyas such to the present
proceedingsbefore theCourt; and
(ii) Second,even if they did apply,their provisions do not bear the interpretation which
Romania seeks to givethem.
A. The Five "Principles" Set Out in Paragraph 4 of the 1997 Exchange of
Letters Do Not As Such Apply tothePresent Proceedings
6.11. Ukraine accepts that the 1997 Exchangeof Letters constitutes an international treaty
l
~ binding upon the Parties. But it clearfrom the languageof paragraph 4 of the Exchangeof
7
8 Annex3, Vol.2.
9 Annex38,Vol. 3.
Seeabove,paras5.118-5.122.Letters that itsprovisions do not embody an agreement which relates td the present
proceedings.
6-12. Paragraph4 sets out certain "principlesand procedures".The "procedures"are set out
in sub-paragraphs (Q, (g) and (h), and relate to the way in which the Parties are to conduct
themselves in the course of their endeavours to settlethe problem of delimitation by a
negotiated agreement.
6.13. The five "principles"are set out in sub-paragraphs (a) to(e),as follows:
"(a) The principle provided under article 121of the UN Convention on the Law of
the Sea of 10 December 3982 as applied in the practice of States and
internationaladjudication;
(b) The principle of equidistant line in delimitation areas where coasts are
adjjacentand the principleof median line in areas where coasts are opposite;
(c) The principle of equity and method of proportionality as appliedin practice of
States and decisions of international institutions related to delimitation of
continental shelfand exclusive economiczones;
(d) The principle, according to which none of the Contracting Parties shall reject
the sovereignty of other ContractingParty over anypart of its territoradjacent
tathe delimitation area;
Theprincipleof effect of special circumstances within the delimitationzone;"
(e)
6.14. These "principles" are introduced with a chapeau to paragraph 4 which reads as
follows:
"The Government of Ukraine and the Government of Romania shall conduct
negotiations on the Agreement on Delimitation of the Continental Shelf and the
ExclusiveFxonomic Zones of both States in the Black Sea on the basisof following
principlesandprocedures:".
,
615. !It is apparent on the face of this language that the "principlest' which were
subsequentlyenumerated were toform thebasis on which the Parties were to "negotiate" a
delimitation agreement. They were not agreed by the Parties as applying to the subsequentjudicial proceedings for which provision was made in sub-paragraph (h) if the negotiations
failed.
6.16. Such aview of the applicability of the "principles"makes practical sense. There are no
guiding substantiveprinciples for diplomatic negotiations. In order to give them focus, and as
a first step towards solving the problem for which a solution was to be negotiated, setting out
such guiding principles ascould be agreed at the outset was an obviously helpful step. But in
contemplatingthe possibility that the negotiations might fail, and agreeing that in that case the
matter should be referred for settlement to a standingjudicial tribunal with a well-known, and
mandatory applicable law provision and a well-established jurisprudence relating to the
matter in question, it would havebeen impertinentto seek to tell the tribunal what "principles"
to apply. Nor did the parties in fact seek to do so: they expressly agreed only thatthey "shall
negotiate anAgreement ... on the basis of the followingprinciples ..." (emphasisadded).
6.17. Romania, of course, acknowledges that the five "principles" set out in paragraph 4 of
the 1997 Exchange of Letters are not the totality of relevant principles, but only the Parties'
view "as to the most relevant factors"lO.Within the "negotiating" limits of that paragraph 4,
this may be so: but, as explained, those limits restrict the relevance of that paragraph to the
negotiations which were to take place. Paragraph 4 does not purport to, and does not,
determine the extent of the Parties'agreement upon "the most relevant factors" in thejudicial
proceedings which were to follow upon the failure of the negotiations.
6.18. Romania is aware of the difficulty of trying to transpose "principles" agreed as the
basis for a diplomatic negotiation into "principles" to be applied by a judicial body in
resolving the problem when the negotiationshave failed.Romania accordingly argues that the
Parties having agreed on the "principles" to apply in their negotiations, and those negotiations
having failed, and the matter therefore having been referred to the Court for resolution, the
Court is to be taken as acting on behalf of the Parties and thus to be bound to apply the same
10 RM,para.8.1.agreed "principles" which the Parties themselves were to treat as the basis for their bilateral
negotiations".
6.19. In so arguing Romania seriously misrepresents the relationship between negotiation
andjudicial proceedings, and also the role of the Court in exercising itsjudicial function.
(a) As to the former, Romania asserts that "an agreement between two Parties that certain
principles are to be applicable in the negotiations for a delimitation between them
must be considered as equivalent to an agreement that those same principles shouldbe
applied by the C~urt"'~.There is no basis for any such alleged equivalence: the text of
paragraph 4 of the 1997 Exchange of Letters relates in terms only to the negotiations
which were envisaged, and far from those same "principles" being agreed to be
applicable by the Court, the Parties in agreeing to refer their unsolved dispute to the
Court did so in the knowledge that the Statute of the Court contains a mandatory
provision as to the legal rules which it is to apply to disputes brought before it.
(b) As to the role of the Court, the Court is an autonomous judicial institution, acting in
the exercise of its ownauthority. When seized of a dispute by two States the Court
does not act "on their behalf"I3;still less does it act on their behalf in the exercise of
their task of negotiating an agreement, which is the only task for which the Parties
agreed that the "principles" set out in paragraph 4 of the 1997 Exchange of Letters
should form the basis. And contrary to Romania's assertion that there would be no
point in agreement on the relevant factors in a delimitation if the Court were free to
ignore those factors in delimiting the boundaryi4, it is precisely because the
"principles" agreed as the basis for negotiations failed to result in agreement that it is
appropriate for the Court, in the exercise of its own autonomous authority, to applythe
applicable rules of international law in order to achieve the delimitation which the
Parties had failed to negotiate. It is not a question of the Court ignoring the factors
l l RM, para.7.7.
I2 Ibid.
13 ,Ibid.
14 Ibid. which had been agreed for purposes of negotiation, but of the Court applyingrules of
international law - which may or may not, and in whole or in part, include the
"principles" agreed upon for the negotiations. The distinction between applying the
"principles" as part of paragraph4, and applying them, wholly or in part, as part of
normallyapplicable rules of internationallaw, is important.
6.20. In submitting that the five "principles"set out in paragraph 4 of the 1997Exchange of
Letters do not apply as such to the present proceedings before the Court, Ukraine
acknowledgesthat some of those "principles"may, at least in part, apply aspart of the normal
rules of international law which the Court will apply. In that latter respect - i.e. a,part of
normally applicablerules of international law -the "principles"will apply, but only:
(i) within the framework of other associated aspects of international law rather than
simply asstated in the Additional Agreement and asa part of that bilateralagreement;
(ii) without suchqualifications as might be read into them on the basis of the negotiating
historyof paragraph4; and
(iii) without anyimplications as to relative importance or priority as might be drawn from
the order in which theyappear in paragraph 4.
B. The Five "Principles" SetOut in Paragraph4 of the 1997 Exchange of
LettersDoNotBear the Meaning AttributedtoThem byRomania
6.21. Paragraph 4 of the 1997 Exchange of Letters sets out five "principles" which were to
form the basis for the delimitation negotiations which wereto take place. Taken at a suitably
general level, those "principles" - UNCLOS Article 121, equidistance, equity and
proportionality,territorial sovereignty, and relevantcircumstances - are unexceptionable.They
all represent rules or principles which form part of the general international law of maritime
delimitation which the Court is in any event required to apply. As such, Ukraine has no
quarrel with them. 6.22. However, as treaty stipulations in the 1997 Exchange of Letters, as interpreted and
"glossed" by Romania, and as self-contained "principles" taken out of their context within
applicable rules of international law and stripped of their associated legal surroundings, they
are either incorrect or incomplete as statements of the law or unsuitable for application by the
Court (for which, as explained, they were never intended), or both. These deficiencies in the
five "principles"will become apparent in the treatment which follows in subsequent Chapters
of the applicablerules of international law whichrelate to them.
1
-Section5. The Soviet-Romanian Agreementsof 1949, 1961, 1963and 1974, and the
Ukraine-Romania 1997 Exchange of Letters, Do Not Constitute
AgreementsasProvidedfor byUNCLOSArticles74(4)and 83(4)
6.23. Ukraine accepts that the Soviet-Romanian agreement embodied in the general 1949
Procts Verbal (and the associated individual Procb Verbaux annexed to it)'', the 1949 State
Border Treaty'" the 1961 Border Regime TreatyI7,the 1963 Procts VerbalI8,and the general
Procbs Verbal 1974 (and its associated individual Procts Verba~x)'~continue to be binding
upon Ukraine after its resumption of independence in 1991. Ukraine also accepts that the
1997Exchange of Letters2'is binding on Ukraine as well as on Romania. Consequently, those
agreementsare in principle part of the rules to be applied by the Cou-but, of course, only in
so far as their terms are applicableto the matter now before the Court.
6.24. However, those agreements are applicable (so far as they are applicable at all) by
virtue of the general rule that treaties binding upon the parties are to be applied by the Court
so far as their terms allow. They are not applicable, as contended by Romania2',by virtue of
UNCLOS Articles 74(4) and 83(4). As already explained22the opening reference in each of
those paragraphs (4) to "an agreement in force" is, given the context and purpose of the
Articles, a reference back to the kind of agreement referred to in the opening paragraphs of
Above,paras.5.41-5.77.
Above,paras.5.78-5.80.
Above,paras.5.84-5.90.
Above,paras.5.90-5.92.
Above,paras.5.94-5.103.
Above,paras.5.115-5.117.
RM, paras.7.5-7.6.
Above,paras.5.114,5.117those two Articles, namelyan agreement delimiting the continental shelfEl52 on the basis of
international law. The agreements of 1949, 1961, 1963, 1974 and 1997 were not agreements
delimiting the continentalshelf andlorEEZ,anddidnot therefore fail within Articles74(4) or
83(4): the invocation of those provisions cannot give the agreementsin question a character
which theyhave never had.
6.25. In any event, as also already explained23,so far as concerns the 1997Exchange of
Letters in particular, it related (so faras concerns its five "principles") only tthebasis for
lplomatic negotiations and was not concerned at all with thepresentjudicial proceedings.
6.26. While the Court has drawn attention to the importance of settling questions of
maritime delimitation by agreementz4 ,nd while Articles 74 and 83 of UNCLOS require that
delimitation "be effected by agreement", it iclear, as shown in Chapter 5, thatthere has not
yet been anyagreementbinding upon Ukraineand Romaniaregarding the delimithtionof their
continental shelf or EEZ boundaries. The only agreement relevant in this general maritime
context has been the agreement reached between the Soviet Union and Romania, and
confirmed between Ukraine and Romania, regarding the delimitation of the territorial sea
boundary off the mainland coast in the region of the mouth of the River Danube and
extending out to sea to a point lying to the south west of Serpents'Island, While that
agreement remainsbindmgon Ukraine, as on Romania, it does so only with respect to their
territorial seaboundary. It isnot a continental shelf or EEZ delimitation agreement, and its
only relevance to that wider question :isthat it provides (in Romania's own words) an agreed
"starting point" for further agreement upon, or judcial determination of, an equitable
continental shelfand EEZ delimitationz.
22
24 Above,paras.6.15-6.17.
' North Sea ContinentalShelf,Judgmenr, S.C.J. Reports 1969, pp. 4, 4647 (para. 851,53
25 (para10I(C)(P)).
Above,5.119(iii).Section 6. TheApplicable Rules of International Law
A. The Basic Rule: Equitable PrinciplesllRelevant Circumstances-
EquidistancelSpeciaICircumstances
I
6.271 For parties to UNCLOS (and both Ukraine andRomania are parties)the basic rule of
l
law \U be appliedto the delimitation ofan EEZ orcontinental shelfboundary is derived from
Articles74 and83of UNCLOS.They requirethat thedelimitation shall bemade "on thebasis
1
of iniernational law, as referred to in Article 38 othe Statute af theInternational Court of
Justike, in ordeto achieve an equitable solutionti.For thCourt thisrequirement ison1y to be
infeded from those Articles, since in terms they only apply to thebasis and ultimate purpose
of the agreementwhich the States concern aredrequired to seek to negotiate.
l
6.28.I The language of delimitation has been influenced by the terms of the earlier 1958
Gendva Conventions on the Continental SheIf and on the Territorial Sea. Articles and 15
respectively of those Conventions refer to delimitation on the basis of a "median" linez6,
definedas a line every point of which is"equidistant" from the nearest pointsofthe baselines
fromlwhichthe breadth of the territorialsea of each State is measured, unlesome other line
l
iscallledforbecause of "special circumstances".
l
6.29.1 Not allmaritime delimitation cases since 1958have been decided on the basisof the
1958 l~enevn Conventions or. more recently, the 1982 UNCLOS,since in a numberof cases
one dl both partieshave not been parties to those Conventions. In such cases theCourt or
tribuhal has decided the caseon the basisof customaryinternational law.This has sometimes
I
led tothe use of terminology slightlydifferentfrom that usedin the Conventions, in particular
the use of theterm "relevant circumstances" as an alternativto "specialcircumstances".
1
6.30. ; Courts and tribunals have not, however, been distracted by these differences in
termiriology. No particular distinction of great substance has beendrawn between "special"
l
26
TheConventiononthe ContinentalShelfdoesnotrefetoamedianline inrelationthedelimitationof
the continentalshelthecaseof adjacenStates.and "relevant"circurn~tances~~a,nd since both a "median" line and an "equidistance" line are
constructed by the application of equihstance principles, both krndsof lines can proper1 y be
referred to as "equihstance" lines (although the term "median" line may, in strict consistency
with the 1958 Convention on the Territorial Sea, be kept for the line of territorial sea
delimitation between opposite coats - and, by extension of that usage, for the line of
deIirnitationfor the EEZ and continental shelf betweenopposite coasts).
6.31. These various terminological differences tend to be subsumed within what is now
usually referred to as the "equitable principledselevant circumstances" or
"eguidistance/special circumstances"rule. That rule is well-estabhshed in therelevantjudicial
and arbitral decisions as appropriately to be applied in order to achieve the "equitable
solution" which Articles 74 and 83 of UNCLOS and customaryinternational lawz8 require.
B. Principles of "NaturalProlongation"and "Non-Encroachment"
6.32. Before considering how the equidistancdspecial circumstances rule is to be applied, it
is as well to recall that underlyingany consideration of the elements which contribute to the
processof delimitation in respect of the continental shelf is "thefundamental principle thatthe
continental shelf appertains to a coastal State as being the natural prolongation of its
territ~ry"'~.That principle establishes a framework within which the process of delimitation
takes place.That principle wasmost authoritatively expounded by the Court in the North Sea
ContinentalShelf Cases, where the Court said that
"itentertains no doubt [as to] the most fundamental of allthe rules of law relatingto
the continental shelf, enshrined in Article 2 of the 1958 Geneva Convention, though
quite independent of it, namely that the rights of the coastal State in respect of the
area of continental shelf that constitutes a natural prolongation of itsland territory into
and under the sea exist ipsofacto and ab initio, by virtue of its sovereignty over the
27 Inthe Jan Mayen casethe Court distinguishebetween thesetwo concepts by sayingthat"It is thus
apparentthatspecial circumstancare those circumsrances which migmodify theresult producedby
an unqualifieapplicatioof Ihe equidistancprinciple.General international...hasernplayed the
conceptof 'rel~vancircumstances'. Thconcept canbe described as a factnecessartobe takeninto
accountin the delimitatiprocess." MaritimeDelimitationin theArea between GreenIand and Jan
Mayen, Judgment,I.C.J.Repor- 1993,atp. 62, para55.
28 JanMayen, I.CJ. Reporls 1993,atp. 59para.48.
29 Case concenzing the Delimitation ofthe ContinenruShelf between the United Kindgornof Great
Britain and Northern Ireland, and the French Republic, Decisioof 30 June 1977, U.N.R.I.A.A.,
Vol.XVIII,p. 58,para.101. I
1 land, and as an extension of it inan exercise of sovereign rights for the purpose of
' exploring the seabed and exploiting its natural resources. In short, there is here an
inherentright.Inorder to exercise it,no speciallegal process has to be gone through,
nor have anyspeciallegal acts to be performed ...To echothe languageof theGeneva
1 Convention, itis 'exclusivet. ."l0.
' I
The iexclusive and inherent nature of continental shelf rights, needing no express claim or
actuil exerciseof rights, wasreaffirmedin Article 77 ofUNCLOS(followingArticle2 of the
1958,GenevaConvention).
I
l
l
6.33.1 The inherent nature of the coastal State's continental shelf rights over the "area of
continental shelf which constitutes a natural prolongation of its land territory" carrieswith it
the need for other States, whether adjacentor opposite,not to truncate, cut across or encroach
that submarinearea over whichthe coastal State has inherent rights. As the Court said in
the LibyduEta case, the
"principIeof non-encroachment by one party on the natural prolongation of the other
...is no more than the negative expressionof the positive rule that the coastal State
enjoys sovereign rights over the continenta1 shelf off its coasts to the full extent
authorizedby international law in therelevant circ~mstances"~'.
6.34.; Where the geographical configuration of the adjacent or opposite coastlines of two
state4is such that the natural prolongation of each coastal State'sland territory will cut across
the nhtural prolongation ofthe other'sland territory, clearly neither can assert that its natural
prodgation has priority over the other's.It is, as the Court has put it,a "disputeabout
I
boundarles [... involving ...] a disputedmarginal or fringe area, to which both parties are
layinkcIaim". That is what delimitation is about, since
I "the process of delimitation is essentially one of drawing a boundary line between
I areas which already appertain to one or the other of thc States affected. The
I delimitation itself must indeedbe equitablyeffected ..."32.
I
l The Court appliedthe principle of non-encroachmentin thefollowingterms:
l
31 /1.C.J.Reports 1969, atp. 22,para.19.
32 II.C..!.Reports 1985,atp. 39. para.46.
l North Sea Continental she^ Judgment,1.C.J.Reports 1969, atp.22,para.20.
l l
l I "thecontinental shelfof anyState must be the natural prolongation of its'lanterritory
and must notencroach upon what is the natural prolongationof the territoryof another
State"33.
C. TheArea ofDelimitation
6.35, Moreover, delimitation takes place within a particular, geographical area, the
characteristics ofwhich play an important role in the process of delimitation. It is therefore
necessary at the outset to form a view as to the maritime area which isrelevant for the
purposes of delimitation, and the coastlines around that area which are similarly relevant.
These concepts of "relevant area" and "relevantcoastline" have been considered morefuIIyin
Chapter3.
ID, The Establishmentof a ProvisionalLine, Subject to PossibleSubsequent
Adjustment
6.36. The equidistanceIspecia1circumstances rule is one which has to be applied in two
main stages. It is first necessary to estabIish on a provisional basis the geographically
equidistant or median line, and thereafter to consider whether that provisional line requires
adjustmentin orderto arrive at a final linewhich achieves anequitable solution. This order of
proceeding was clearly acknowledged by the Court in the LibydMalta caseJ4 and in the San
Mayencase35I .n the latter the Courtsaid:
"Judicial decisions on the basis of the customary law governing continental shelf
delimitation between opposite coasts have likewise regardedthe median line as a
provisional linethat may then be adjusted or shiftedin order to ensure an equitable
result. The Court, in the Judgment in the case concerning the Continental Shelf
(Libya Anrab JamahiriydMalfa) ..., in which it took particular account of the
Judgment in the North Sea Continental Shelfcases, said:
The Court has itself noted thathe equitable nature of the equidistance method
is. particularly pronounced in cases where delimitation has to be effected
between Staceswith oppositecoasts'.(I.C.J. Reports 1985,p. 47,para.62)
33 Ibidatp.47, para. 8see alstheCourt'sdisposirifatp.5para.101(C)(i).
34 ConlinentaShelf(Libyandrab Jamahiriya/Malt a),gment,1.6J. Reports 1985,p,13,atpp. 47,
3s para.63,48, para.6and 57,para.79.
Maritime Delimitation in the betweenGreenland and JanMayen,Judgment, I.C.JReports 1993,
p.38,atp.60,para.50. l/
I
It then went on to cite the passagein the,Judgment in the North Sea ContinentalShelf
cases, where the Court stated that the,continental shelf off, and dividing, opposite
States "can..onlybe delimitedby mea& of a medianIine'(I.C.J.Reports1969,p. 36,
para. 57; see also p. 37, para. 58). The Judgment in the Libya/lWalracase then
continues: t
'But it is in fact a delimitati~njkxcl beuwieeneop~posite coasts that the
Court is, for the first time, asked to deal with. It is clear that, in these
circumstances, the tracing of a median line between those coasts, by wayof a
provisionalstep in a processto be continued by other operations,is the most
judicious mannerof proceeding with a view to the eventualachievementof an
equitableresult."(I.C.J.Reports1985,p. 47,para.62)
f
6.37. The same approach was followed by theCourt in Qatar v, Bahrain w,here the Court
dealt first with the delimitation of the territorial sea on the basis of Art15lof UNCLOS.
Referring to the rule set out in that Article as "the equidistancelsc iecum stances"rule,
the Court said:
"The most logical and widely practised approach is first to draw provisionally an
equidistanceline and then to considerwhether that Iinemustbe adjustedin thelight of
the existence of special circumstances. Once ithas delimited the territorial seas
belongingto theParties,the Courtwilldetermine the rulesand principlesofcustomary
law to be applied to the delimitation of the Parties' continental shelves and their
exclusive economiczonesor fishery zones. The Court will further decide whether the
methodto be chosen forthis delimitation differsfrom oris similar totheapproachjust
outlined"36.
In subsequently dealing with the delimitation of the EEZ and continental shelfboundaries the
Court adopted the sameapproach as it had done in the JanMayeracase. Quotingextensively
fromthe Judgmentin that case, the Court said:
"227. ...Withregard rothe delimitation ofthe continental shelftheCourtstated that
'Even if it were appropriate to apply ...customary law concerning the
continental sheIfas developed inthe decided cases [theCourt had referred to
the Gulf of MaineandLibpa Arab JamahiriydMalta cases], itis in accord
with precedentsto begin with themedian line as a provisionalIine and then to
i
I
36
Maritime Delimitoriand Territc~rQuestionsbetween &tar andBahrain,Merits,Judgmenr,I.C.J.
Reports 2001p.94,para.176. ask whether 'specialcircumstances"~equire anyadjustment or shifting of that
line.'(I.C.J. Reports1993,p. 61, para. 51).
228. Afterhaving come to a similar conclusion with regardto the fisheryzones,the
Courtstated:
'Itthus appears that, both for thecontinental shelf and for the fishery zones in
this case, it isproper to begin the process of delimitation by a median line
provisionally drawn.'(Ibid.,p. 62,para. 53.)
229. The Court went on to say that it was furthercalled upon to examine those
factors which might suggestan adjustment or shiftingof the median line in order to
achievean'equitable result'TheCourtconcluded:
'Itisthus apparent that special circumstancesare those circumstances which
might modify the result produced by an unqualified application of the
equidistanceprinciple.General international law, as ithas developed through
the case-law of the Court and arbitral jurisprudence, and through the work of
the Third United Nations Conference on theLaw of the Sea, has employed the
concept of "relevant circumstances". This concept can be described as a fact
necessary to be taken into account in the delimitation process.'(Ibid., p. 42,
para.55.)
230. The Court will follow the same approach in the present case. For the
delimitationof the maritime zones beyond the 12-mile zone itwill first provisionally
draw an equidistance line and then consider whether there are circumstances which
must lead to anadjustment of that line.
231. The Courtfurther notes that the equidistancelspecial circumstances rule, which
is applicable in particular to the delimitationof the territoriasea, and the equitable
principleslrelevantcircumstances rule,as it has beendevelopedsince 1958in case-law
and State practice with regard to the delimitation of the continental shelf and the
exclusiveeconomiczone, arecloselyir~terrelated"~~.
6.38. In itsmost recent observation on this question, in Cameroorz v. Nigeria, the Court
adopted thesameapproach. Er said:
"The Court has on various occasions made it clear what the app1icable criteria,
principles and rules of dejimitation are when a line covering several zones of
coincident jurisdictions is to be determined. They are expressed in the so-called
equitable ptincipleslrelevant circumstances method. This method, which is very
similarto the equidistancelspecial circumstances method applicable in delimitation of
37
"Special circumstancewas the term used in Articl6 of the 1958 Geneva Convention on the
38 I.C.J.Reports2001,pp.llO-11l,parasablelaasbe..227-231.rtiestothecase. the territorialsea,involves first drawinganequidistanceline, thenconsidering whether
thereare factorscatlingfor the adjustmentor shifting of thatline in orderto achievean
'equitableresultt"39.
6.39. Itmay be noted that these cases involvednot only territorial sea but also EEZ and
continental shelf delimitations (Qatar v. Bahrain) S,tates with opposite coastlines
(LibydMalta), States with adjacent coastlines (Cameroon v. Nigeria )nd States with both
opposite and adjacent coastlines (Qatcar v. Bahrain). The Court's various Judgments have
therefore appliedthe equidistancelspecialcircumstancesrule to both geographiccategoriesof
coastlines (i.e ad,jacentand opposite), and to all relevantmaritimezones (i.e t.rritorialsea,
fisheryzones, EEZ and continentalshelf).
-
1 6.40. In additionto these clear and comprehensive statements by theCourt, most recentlyin
2002, it is relevantto mentionbriefly the Award intheAnglo-FrenchContinental Shelf case.
There the Court of Arbitration accepted that the appropriatestartingpoint far the delimitation
process was the determinationof the median orequidistanceline, and said that
"...it seems to theCourt to be in accord not only with the legal rules governing the
continental shelf but also with State practice to seek the solution in a method
modifyingor vqing the equihstance methodrather than to have recourseto a wholly
differentcritetion of deIi~nitation"~*.
6.41. The foregoing consistent line of judicial and arbitral authority establishes that the
current rule of international law requires that incases involving the delimitation ofEEZs and
continental shelves, theprocess of delimitation involves the following steps:
(i) First,a line is drawnon the basis ofstrictequidistance (which may be calledamedran
line in relatioto a line betweenoppositecoasts, and anequidistancetinein relationto
a line off adjacentcoasts);
l l
l l
(ii) 1 second,this equidistance line isadopted as a provisionalline only;
l 39 Land and Maritime Boundary between Cameroon and Nigeria (Cameroan v.Nigeria: Equntoria!
l Guineaintervening),Judgment, IJ.Reports2002, p.441,para.288.
l 40 Delimitarionof the Continental Shelf (UK/France(19771,U.N.R.I.A.A.,Vol. XVIII,at p. 116,
l
I 1para.249.
I (iii) anyrelevant circumstancesare thento be examinedin orderto determine'whetherthey
~
requirethat the provisionalequidistanceline needs to be adjusted or shiftedin orderto
l
achievean equitablesolution;
if there are no relevant circumstances, or if those claimed by the pasties are found by
(iv)
the tribunal not to require an adjustment to or shifting of the provisional line in order
to achieve an equitable solution, then the provisional line will become the final
delimitationline;
(v) butif thereare circumstances which require that the provisional Iine be adjusted er
shifted,then the necessary adjustment or shift willbe made by the tribunal,and the
resultingadjustedorshifted line will become the deIirnitationline;
(vij finally, since thepurposeof the delimitationis to achieve an equitable solution, the
equitableness of thedelimitationline is assessed,most usuallyby considering whether
there is any significant disproportion between the maritime ateas which the
delimitation Iine attributes to each of the coastal States and their relative coastal
lengths.
l 6.42. Given this sequence of steps in the delimitation process, it is apparent thatthe first
step -the determination of the provisional equidistance line-has to take place on the basis of
strict geographical considerations andcalculations. The provisional line has to be "the result
produced by an zmqual$ed application of the equidistance prin~iple"~'.This follows from the
fact that relevant or special circumstances are taken into account in order to determine
whether the provisional line needs adjustment,which means after thatline has been drawn: if
the equidistance line is drawn on the basis that it already takes account of those
circumstances,the staged process of delimitation so consistently laid down by the Court
would be undermined.These matters are morefullydiscussed below, Chapter 7.
41
Maritime Deiimitation the Area betweeGreenlandand Jan Mayen, Judgment,J.C.J.Reporrs1993,
p.62, para. 55asquoted withapprovalinMaritime welimitetion anTerritorial Questiobemeen
Qarurand Bahrain,MeritsJudgment, ICJ. Repurls2001,p.111,para.229.
I E. RelevantCircumstances .l
6.43. The existence of "relevantcircumstancesttandtheimpact(if any) whichthey may have
on the provisionally drawn equidistant line is a matter about which it is impossible to
generalise since the relevant circumstances are, almost by definition, dependent upon the
specific circumstancesof any given case. The geographic and other circumstances of each
case are unique, and need to be assessed on theirown merits within the context of that case.
So far asthe present caseis concerned therelevant circumstanceswhich affect theUkraine-
Romaniadelimitation line in the Black Sea are primarily geographical factors, Statepractice
in the relevant area, and third State delimitations in the Black Sea. These relevant
circumstancesarefully discussedbelow, Chapter 8.
F. TheAimofan Equitable Solution
6.44. The purpose of any adjustment to the provisional equidistantline which maybe called
for by the relevant circumstances of theparticular case is "to achievean equitablesolution".
As theCourt statedin theJan Mayen.case,referring to the requirement in Articles74 and 83
of UNCLOS foran equitablesolution:
"[tlhatstatement of an 'equitable solution' asthe aim of any delimitation process
reflects the requirements of customary law as regards the delimitation both of
continental shelfand ofexclusive economiczones"42.
6.45. In the same case the Court said thatafterestablishingthe provisional line:
"[tlheCourt is now called upon to examine every particular factor ofthe case which
might suggest an adjustment or shifting of the median line provisionally drawn.The
aim in each andeverysituation must be to achieve 'anequitableresult',.,"43.
So too, in Cameroon v. Nigeria the Court remarked that the appropriate method of
delidtat ioninvolved:
42 1
1MaritinaeDelimitatiintheArea betweenGreenlandand Jan Mayen,Judgment,I.C.J.Reports 1993,
atp.59,para.48.
Ibid., at62,para.54.
l
I "first drawing an equidistance line, then considering whether there are factors calling
for the adjustment or shifting ofthatlinein orderto achievean 'eguitable
6.46, Ttis in the nature of this quest for an "equitable result" thatit is to a large extent a
matter for assessment. The Court, and other tribunals, have however indicated two
considerationsin particular which are applicablein thiscontext.
G. TheGeographyIs a "Given"
6.47. The first is that in seeking an equitabledelimitation it is well-established that itisnot
the function of the Court tore-fashion geography.The Court must take asit isthe geography
ofthe areain which the delimitation is to takeplace,even though thismay involvegeographic
inequalities as between the States concerned. The Court's task is nevertheless to effect a
delimitation on the basis of thegeographyas it Is,not asone orotherof the partiesmight wish
itto be. A delimitation is not an exercise in "provid[jng] equitable compensationfor a natural
inequality"45.
6.48. The Court's statement of the position in the North Sea Continental Shelf cases has
been thebasis for the subsequentdevelopmentofthe relevant legal considerations:
"Equity does not necessarily imply equality. There can never be any question of
completely refashioning nature, and equity does not require that a State without access
tothe sea should be allotted an area ofcontinental shelf, anymore than there could be
a question of rendering the situation of a State with an extensive coastline similar to
thatof a State with a restricted coastline.Equality is to be reckonedwithin the same
plane, and itisnot such natural inequalities as thesethat equity could remedyu4'.
6.49. The Court has applied these principles in several cases. In the Tunisia-Lib caae,
faced with anargument about whether or not one orthe other State was favoured by nature as
regardsitscoastline, considered it:
44 Land and Maritirne Boundary between Cameroon and Nigeria (Cameroon v. NigeriaEqunturid
Guinea intervenin gudgment, I.C.J.Report2002,p,441, para288.
45 Ibtd.atp. 446para.293.
46 NorthSea Continental SheK JudgmentI.C.J.Reports 1969, p49-50,para.91. "not ... to be relevant since, even accepting the idea of natural advantages or
disadvantages,'it isnotsuchnaturalinequalities as these thatequity could
So too in the Gulf of Mainecase the Chamber, in rejecting U.S. and Canadan arguments
about allegedgeographicanomalieswhich oughtto be ignored, recalled:
"that the facts of geographyare not the product of human action amenable to positive
or negativejudgment, but the result of natural phenomena, so that they can only be
taken as they are"".
In Libyn/Maltathe Courtobservedthat:
"[tlhe pertinent general principle ...is thatthere can be no question of 'completely
refashioning nature';the method chosen and its results must be faithful to the actual
geographicalsituation"49.
In Cameroon v.Nigeria the Courtemphasizedthat:
"[tlhegeographicalconfiguration of the maritime areas chatthe Court is called uponto
delimit is agiven.Itis not an element opento modification by the Court but a fact on
thebasis of which theCourt must effectthe delimitation"50.
M. Proportionality
6.50. The second consideration which is well-establishedin the context of achieving an
equitable resultis thatone measureof the equitableness of the solution reached is to be found
. .
in considerations of proportionality - thatis, the"reasonable degreeof proportionality which a
delimitation effected according to equitableprinciplesought to bring about between the extent
of the continental shelf appertaining to the Statesconcerned and the lengths of their respective
48~nfinental Shelf(Tunisia/L irbyJanrnahiriyaI.C.J. Repom 1982,atpp.63-64,para.79.
m DelimitationoftheMaririme Boundary in theGulfofMaine Area, Judgment,I.C.J.Reports 1984,at
49 ' p. 21,para.37.
ContinenraIShelf(Lib yranJctmnhiriydMaEra)J,udgment.I.C.J.Reports1985,atp. 45,para57.
I Landend Maritime Boundary between Ca~neroonand Nigeria(Cnrneroon v. Nigeria:Equatorial
l 1 Guinea interveningj, JudgmentC.J.Reports 2002,atpp.444-445,para.295. -167-
coastline^"^T'.is aspect of the present case, and the relevance of the ratio df the Parties'
coastlines as a relevant circumstancecallingforan adjustment ofthe provisional equidistance
line, arefuIlydiscussedbelow,Chapter 10.
Section7. Conclusion Regarding the Applicable Law
6.51. While certain particular provisions in paragraph 4 of the 1997 Exchange of Letters
may,at leastin part, applyas partof thenormalrules of international lawwhich the Court will
apply, those provisions are essentially relevant to the negotiationwhich the Parties were to
undertake and do not as such apply to the present proceedings. Similarly, the Agreements
concluded by Romania with the Soviet Union in 1949, 1961, 1963 and 1974, and with
Ukraine in 1997, are not agreements deIimiting the continental shelflEEZ and are thus not
agreements applicableasprovided for by Articles 74(4)and 83(4)of UNCLOS.
6.52. Rather, for the reasons set out inthis Chapter, the law to be applied by the Court in
effecting the delimitationwhich has been requested from the Court is thegeneral body of
rules of international law which under Article 38.1 of the Statute it isincumbent upon the
Court to applyto any case beforeit. In relation tomaritime delimitation and as between the
Parties to the present case, that appiicable body of rules of international law comprises
principallythe provisions of UNCLOS and certain specific rules which have become well-
establishedin thejurisprudence of theCourt.
51 North Sea Continental She& Judgme1.U. Reports 1969,p52,para.98. THEPROVIISBONA LQUIDISTANCE LINE
Section 1. Introduction
7.1 As discussed in the previous Chapter, the Court's recent case law makes it clear that
the "equitable principleslrelevant circumstances" rule constitutes the basic principle of
delimitation forthe continental shelf and exclusiveeconomic zone. As the Court explainedin
the Cameroon-Nigeriacase:
"Thismethod, which is very similar tothe equidistance/special circumstances method
appIicable in delimitation of the tenitoriaI sea, involves first drawing an equidistance
line, then considering whether there arefactors calling forthe adjustment br shifting of
that line in order to achieve an'equitablresult"".
7.2 This holdingbuilt on the Court'searlier decisionin the Qatar-Bahraincase where the
Court observed:
"The Court further notes that the equidistancelspecial circumstances rule, which is
applicable in particular to the delimitation of the territorial sea, andthe equitable
principleslrelevant circumstances rule,asithas been developedsince 1958in case-law
and State practice with regard to the delimitation of the continental shelf and the
exclusive economic zone,are close1yinteselatedo2.
7.3 It foIlowsthat the firststepin determining anequitable continental shelf and exclusive
economic zone boundary between the Parhes in this case consists of establishing the
provisional equidistance line between the relevant basepoints on the Parties'respective coasts,
The second step in the delimitation process is then to identify the relevant circumstances
characterizing the area to be delimited and to determine whether, and to what extent, those
circumstancescalIfor the adjustment orshifting of the provisional equidistanceline in order
to achieve an equitable result. The third step is to test the equitableness of the result by
1
Land and Mariiime Boundary betwean Cameroon and Nigeria(Carneroon v.Nigeria: EquaroriaI
2 Guinea Intervening), JudgmeIC.J.Reports 2002,p. 441, para.288.
Maritime Delimitation unTerritorial Questions betwQatarand Bahrain, Merits, Judgment, I.C.J.
Reports 2001,p.l l para.231. refemnce to thecriterion of proportionalitand other equitable factors previou'l identified
bythe Court.
7.4 As will be seen,Romania'sapproach faitsat every step ofthe process. Section 2 of
l
l this Chapter will discuss the correct approach for establishing the provisional equidistance
line and will show why Romania's construction of that line is fundamentally flawed. In
Section 3, Ukraine will discussthe status of Serpents'Islanand theappropriatenessof using
basepoints on the island for purposes of constructing the provisionalequidistance line.Andin
Section 4, Ukraine will identify the relevant basepoints for connecring the provisional
equidistance line and willprovide a map showing the tracing of the correct line. Chapter 8
l
will then address the identification of the relevant circumstances affecting the maritime
l
delimitation and Chapter 9 will show how those circumstances callfor an adjustment of the
provisional equidistance line to achieve an equitable resuIInChapter 10, Ukraine will test
the equitable nature of the claims advanced by each Party by reference to theelement of
l
proportionaljty and other criteria.
Section2. The ProvisionalEquidistance Line Is a Strict Equidistance Line Drawn
1 fromthe RelevantBasepoints on EachParty 'S Coasts
7.5 It is well-established that theprovisional equidistance line is a strictlcalculated
equidistance line - thais,a linewhich is equidistanfrom the nearest basepoints an thetwo
Parties'coasts(or baselines)from which thebreadth of their territoriseas is measured.This
I foIlows not simplyfrom the provisionsof Article 6 othe f958Continental Shelf Convention
and Article 15 of the 1982 Law ofthe Sea Convention, from which the "equidistance/special
circumstances -equitable principlesfre1evantcircurnstances"rulederives, but also from the
practice ofthisCourt and of other international arbitraltribunals.
1 A 7.6 With respect to the "equidistanceic srcucmstances" rule, iwill be recalled that
Article6, paragraph 1of the 1958Conventionprovides:
"Where the samecontinental sheif is adjacent to the territories of two or more States
whose coasts are opposite each other [or adjacent to the territorieof two adjacent
States (paragraph 2)J, the boundaryof thecontinentalshelf appertaining to such States
shall be determined by agreement between them. In the absence of agreement, and
1unless another boundary line isjustified by special circumstances, the boundary is the median line [shall be determined by appiicarion of the principle of'equidistance
(paragraph 2)j eveq point of which is equidistanrfrom the nearesapoint oj the
baselines fromwhichthe breadth of theterriton'alsea ofeach State ismeasured 3.
7.7 A similar provision is reflected in Article 15 of the 1982 Convention on the
delimitation of the territorial sea. It provides that, absent historic title or other special
circumstances, the States concerned are not entitledto extend theirterritoriasea beyond the
median line "ever yoint of which is equidistaarjrom the nearest points on thebaselinesfrom
whichthebreadthofthe territorialseas ofeachof the two States isvneas~red."~
7.8 These provisions make it clear that theprovisional equidistance line is a line whichis
equidistant from the baselines from which the breadth ofthe respective States'territorial seas
is measured. In order to construct. the provisional equidistance line,therefore, it is first
necessary to identify the relevant baselines of both Ukraine and Romania from which the
outer limit oftheir territorial seas is measured. Any basepoint which lies on such baselines,
and whichhas a controlling influence on the construction ofthe provjsionat equidistance line,
must therefore be used in this process. This is the standard definition of a "strict" or
unqualified equidistance line - a line which, as a strict matter of geography, isequidistant
from the nearest territory of the two States - and it isthe basis on which the provisional
equidistanceline has to be plottedas thefirststepin the delimitation exercise.
7.9 The Romanian Memorialpusports to accept thisbasic starting point. At paragraph
8.78 of itsMemorial, under a heading entitled "Theprovisional equidistance linehedian line
and specialcircumstances",Romania says the foIlowing:
"The starting element is accordingly the equidistance or median line drawn from the
basepoints which are relevant forthedelimitation of thezone(s)in question".
7.20 However, Romania subsequently adopts a fundamentally incorrect approach by
seeking,in the course of drawing a provisional equidistanceline, to ignore relevant basepoints
on the Ukrainian coast of Serpents'Island because, according to Romania, Serpents'Islandis
a special circumstance.Thus Romania argues that:
3 Emphasis added.
4 Emphasis added. "Theprovisionalequidstancelmedian line to be established as part of the delimitation
processis drawnbetween the relevant mainlan coasrs of the Parties,minor maritime
formations being only relevantlspecial circumstances to be considered at a later
stageH5.
This has to be wrong:if "relevant circumstances" are to be taken into account in the initial
drawing of the provisional equidistance line, then they lose their character as factors which
mighitcall for an adjustment of the provisional equidistance line once it hasbeen plotted.
Accordingly,Romania'sattempt to ignore certain basepoints on Ukraine'scoast from which
the breadth of Ukraine's territoriasea is measured, particularlythose basepoints located on
the Ukrainianterritosyof SerpentstIsland, is legay1unsound.
7.11 Romania also purports tofind support in its approach in paragraph 4(b) of the 1997
Exchange of Letters. That paragraph, which sets out the principles agreedby the Parties to
guide them in their negotiations, refers "the principleof theequidistance line". Inan effort
ta obscure the fact that Serpentslsland also provides relevant basepoints for establishingthe
provisional equidstance line, Romania contends that "the focus of paragraph 4(b) is the
situationof mainland coast^" .^his argument is clearly incorrect. Nowhere does paragraph
4(b) refer on1y to an equidistance fine drawn between mainland coasts ignoring islands. The
reference is simply to "theequidistance line" without any qualification.As shown in this
Counter-Memorial, in order not to prejudge any potential relevant circumstances, the
provisional equidistance line which is drawnin the first step of the delimitation processhas to
be a strictlycalculated equidistance line.
7.12 Elsewhere in its Memorial, Romania further attempts to disregard Ukraine's baselines
around Serpents'Island by arguing that there is a preexisting agreement delimitinga twelve-
mile territorial searound the island and that theisland isno more than a "rockt'wwhich is
entitled to no continentashelf orexclusive economiczone rights of its own. The first leg of
this argument has been thoroughly rebutted in Chapter 5. The second part of the argument -
the statusof Serpentstlslandas a full-fledged island withinthe meaningof paragraphs 1and 2
of Article 121of the 1982Convention,and hence its appropriateness in providing basepoints
for thkconstruction ofthe provisional equidistanceline -will be addressedin Section3 ofthis
Chapter.
I
5 1RM. pora.8.126(e(emphasisadded).
6 ,Ibidp.,ra.8.43.7.13 For present purposes, the important point is that Romania has failed to use the correct
basepoints on the Parties'baselines from which to construct the provisional equidistance line.
In short,Romania has effectively treated Serpents'Island as a "special circumstance" to be
ignored for purposes of establishingthe provisional equidistance line, and has thus wrongly
based such provisionalline on theParties'mainland coasts (and even on man-made features
on Romania'scoast such as the Sulina Dyke and uninhabited sand spits such as Sacalin
Peninsula) without talung intoaccount Ukraine's basepoints on Serpents' Island from which
thebreadth of its territorial seais also measuredand fromwhich any calculationof the initial,
"strict",provisional equidistance linemust be based.
7.14 Apartfrom the provisions of the 1958 and 1982 Conventions referred to above, the
case law of this Court and of arbitral tribunals leaves na doubt that the provisional
equidstance line should be a strictequidistance linedrawn from the Parties'baselines which
does not prefigure any account to be taken of special or relevant circumstances characterizing
the area.Those circumstances, sofar asthey exist, only come into play at thesecond stage of
the process once the "str-ict"provisional equidistance line has been established. Romania's
position thus runs counter to the proper method of proceeding with the first step of
establishing theequitable maritimeboundary and cannot be squared with the jurisprudence on
this issue.
7.15 The manner of constructing the provisional equidistance line was first addressedby
the Court of Arbitration in theAnglo-Frerach Arbitration, With respect to the Atlantic region
of the maritime boundary, the Court of Arbitration emphasized that what was effectively the
provisional equidistance line should be drawn from the nearest points on the baselines of the
parties.In theCourt of Arbitration'swords:
"The rules of delimitation laid down in the two paragraphs of Article 6 [of the 1958
Convention] areessential1y the same. In the absence of agreement, and unless another
boundaryisjustified by special circumstances, the boundary is to be the line which is
equidistant from the nearest points of the baselines from which the breadth of the
territorialsea of eacState is measuredm7.
7
Cuse Concerningthe DeIirnitatiof the ContinenraCShelf between tUnired Kingdom ofGrear
Britain and NortherIreIand and the French RepublicDecision of 30 June 1977, reprintein
U.N.R.I.A.A, ol. XYIIatp. 111para.238.7.16 Based on this starting point, the Court of Arbitrationfirst drew ii provisional
equidistance Iine giving full effect to the relevant basepoints on each Party'srespective coasts.
This includes using basepoints located on the U.K.Scilly Islands. It was on1y at the second
step of the delimitation process - determining whether there were any special or relevant
circumstances justifying a modification of the strictequidistance line - that the Court of
Arbitrationconsidered the effect of the Scilly Islandson theoverall boundary.As the Court of
Arbitration stated:
"Thequestion is whether, in the light of all the pertinent geographical circumstances,
that fact [the location of tScilly Islands] amountsto an inequitable distortion of the
equidistance line producing disproportionate effects on the areas of shelf accruing to
the twoStatesm8.
7.17 In the final analysis, the Courtof Arbitration decided that the location of the Scilly
Islands was a "specialcircumstancejustifying a boundaryother that the strict median line. "'
However, two points are worth noting in thi sonnection. The first is that the Court of
Arbitration posited a "strict" equidistance line as thefirst step in the analysis using the Scilly
Islands as basepoints for the constructionof thatprovisional line.The second is that, unlikein
the present case, there was no marked disparity in the lengths of the mainland coasts of the
United Engdom and France fmnting the Atlantic region which could also have constituted a
special orreIevantcircumstance to be taken into account atthe second stage.
7.18 Turning to the Court's own practice, the Court adopted a similar approach in the
Libya-Malta case. There, the Court first adopteda provisional median linedrawn between the
coasts of the Parties, and onlyafterwards, in a second stage of the process, adjusted that Iine
northwards to take into account thesignificant difference in the lengths othe relevant coasts
of Libya and Malta bordering the area tobe de1imited1O.
7.19 A similar approachwas employed by the Court in the Denmark-Nonuay case
involvlng delimitation between Greenland and Jan Mayen. As the Court stated:
9 1 Ibid,p.114,para.243.
l0 Ibidp. 114,para.245(emphasisadded).
ConlinenfaSheu(LibyanArab Jamahiriya/MaltaJudgment,I.C.J.Reports 1985,p48.para.65 and
p.51,para71. "It thus appears chat,for both the continental shelf and for the fishery'zones in this
case, itis proper to begin the process of delimitation by a median line provisionaJly
drawn"".
7.20 It was only at the second stage of the exerciseafter the provisionalequidistanceline
had been drawn thatthe Court indicated that itwas "now called upon to examine every
particularfactorof the case which mightsuggestan adjustment or shifting ofthe median line
provisionallydrawn"12.Inthis connection, theCourt explained:
"Theaim ineach and every situation must be to achieve 'an equitable result'.From this
standpoint, the 195 8 Convention requires the investigation of any 'special
circumstances'; thecustomary law based upon equitable principles on the other hand
requires theinvestigation of 'relevantcircurn~tances""~.
7.21 Inanalysing the role of "special circumstances", the Court added the following
importantobservation which deserves to bequoted in itsentirety:
"The concept of 'special circumstances' was discussed at length at the First United
Nations Conference on the Law of the Sea, held in 1958.It was included both in the
Geneva Convention of 29 April 1958on theTerritorial Seaand the Contiguous Zone
(Art. 12) and in the Geneva Convention, of 29 April 1958 on the Continental Shelf
(Art.6, paras. 1 and2). It was and remainslinked to theequidistance method there
contemplatad, so much so indeed that in 1977 the Court of Arbitration in the case
concerning the delimitation of the continentaI shelf (United KingdomLFrance) was
able to refer to the existence of rule combining 'equidistance-special circumstances'
(see paragraph 46 above). It is thus apparent that special circumstances are those
circumstances which might modify the resultproduced by an unqualifi epplication
of the equidistance principle. General international law, as it hasdeveloped through
the case-lawof the Court and arbitraljurisprudence,and throughthe work of the Third
United Nations Conference on the Law of the Sea, has employed the concept of
'reIevantcircumstances'.This concept can be described asa factnecessary to be taken
into account in thedelimitation pr~cess"'~.
7.22 The significance of this passage lies in the Court's emphasis that "special
circumstances" (and, by analogy, "relevant circumstances") are those circumstances which
might justify the modification of the result produced by the unqual@ed application of
equidistance. The "unqualified"application of the equidistance principle necessarily entails
II
Maritime Delimita~ionihe AreabetweenGreenland and Jan Mayen,Judgment,I.C.JRepor?s1993,
12 p.62,para.53.
13 Ibid p.62,para.54.
ld Ibid.
Ibidp..62,para.55(emphasisadded).the constructionof a strict ("unquaEified")equidistanceline asthe provisional line usingall of
the relevant basepointson the Parties'coasts as the first step ithe process. Itwas on1y at the
second stage of theexercise that the Court examined thequestion whether, and to what extent,
thatprovisional linerequired adjustment. Asthe Court stated:
"Having thus concluded that it is appropriate to have recourse to a median line
provisionallydrawn as a first stage in the delimitation process, the Courtnow turns to
the question whether the circumstances of the present case require adjustment or
shifting ofthatline ..."I*.
7.23 More recently, the Court adopted a similar approach in the Qatar-Bahrain case.
Recalling theCourt'sreasoning in the Jan Mayencase, the Court noted:
"Thecourt will follow the same approachin the present case. For the delimitation of
the maritime zones beyond the 12-mile zone it will first provisionally draw an
equidistance line and then considerwhether there are circumstances which must lead
to an adjustmentof that line"I6.
7.24 With respect to the offshore featuresin the case, Fasht a1 Azm and Qit'at Jaradah, the
Court first examined the result of astrictapplication of equidistance using these features as
basepoints.The results of this analysis were depicted on thefigureappearing on Sketch Map
No. 3 at p. 69 of the Court's Judgment. The Court then turned to the issue whether these
features constitutedspecial circumstances makingit necessaryto adjust the equidistance line
as provisionally drawn, and decided that they did." Once again, this approach was consistent
with adopting as thefirst stage of the delimitation a stricequidistance line, and subsequently
adjusting that linero reflectthe certaingeographic circumstances characterizing the area.
7.25 The Court also followed the same approach in the Cameroon-Nigeria case. Quoting
with approval its earlier holding in Qatar-Bahrain, the Courtagain noted that the equidistance
line should be drawn from the nearest points on the baseIinesof the parties. h the Court's
words:
I
lL
15
16 Ibid., p.6para.59.
Maritime Delimifatioand Terriforial Questiobetween Qatar and BahrainMeritx,Judgment,I.C.J.
17 Reports 2001p. 111,para.230.
Ibid., pp. 104-105,par217-222. "As the Court made clear in its Judgment in the case concernihg Murifime
Delimitufion and Territorial Questions bemeen Qatar and Bahrain (Qarar v.
Bahrain),
'[tlheequidistance line is the Iievery point of which is equidistant from the
nearest points on the baselines fromwhich the breadthof the territorial seas of
each of the two Staresis measured.' (1.CJ.Reports 2001, para.177)"'8.
7.26 Based on theforegoingdiscussion, itis clear that, contrato Romania'sargument, the
provisional equidstance line to be drawn between Ukraine and Romaniaat thefirst stage of
the delimitation is a "strict", or unqualified, equidistance line drawn from the nearest
basepoints on theParties'coasts or baselines from whichthe breadth of their territorial seas is
measured. Since one set of relevant basepoints is provided, on the Ukrainian side, by
Serpents'Island, it isnext appropriate to turnto the status of this island under international
law and the location ofthe relevant basepoints on thisland.
Section3. Serpents'Island 1sNecessarilyOneof the Basepoints
7.27 Ithasbeen previously dernon~trated'~that the provisional equidistance linshould bea
"strict" equidistance line constructedfrom the nearesbasepoints on the baselines from which
the breadth of the territoriaseas ofthe Partiesis measured. Accordingly, account has to be
taken of the national legislation of the Pmes dealing with the definition oftheir territorial
seas. As far as Ukraine is concerned, Article 5 of the 1991 Statute concerning the State
Frontier provides that: "The territorial sea of Ukraine includes the coastal marine waters
havingawidth of 12 nauticalmilesmeasuredfrom the line of minimum low tide both on the
mainlana dnd on islands belongintg o Ukraine, or from the straight baselines joining the
corresponding points"2u.Moreover, Article 2 of the Ukrainian Law relating to the EEZ
provides that: "The exclusive (marine) economic zone of Ukraine shall be comprised of
maritime areas beyond and adjacent to the territorialsea of Ukraine, includin areas
surroundi sgands belonging to Ukraine",and thatthe breadth of that zone"shall not exceed
a distance of 200 nautical miles measured from the same baselines as the territorialsea of
18
Land and Maritime Boundary between Ccam~roonand Nigeria (Camemon v.Nigeria: Equatorin!
19 Guinea inrervening), JudgmI.CJ. Reporf2002,para.290.
20 See aboveparas.7.5-7.26.
Statute dated November 1991,as amended on 18 JuneI996 and 3 April 2003 (emphasis added),
Annex 46,Vol.4.Ukraine"". Thus, the low-watermarkon Serpents'Island'sshore may be used,'togetherwith
anyother appropriate point on Ukraine'smainland baselines, in order to determine the relevant
basepoints for the construction of the provisional equidistance line between the exclusive
economiczones ofUkraine and Romania.
7.28 Before entering into a discussion of the aspects advanced by Romania with regard to
Serpents' Island, it is necessary to state Ukraine's position concerning the extraordinary
Romanian allegation based on the declaration made by Romania upon the signature and
ratification of the Law of the Sea Convention with respect to Article 121 concerning the
regime of islands22. nparagraph 3 of that unilateral declaration, Romaniaconsidered that "the
uninhabited islands without economic life can in no way affect the delimitation of the
maritimespacesbelongingto the mainland coasts of the coastal States". .
7.29 It must be recalled that that unilateral statement wasmade according to Artide 310 of
the Convention. Since no reservation may be made to the Law of the Sea Convention,
Romaniawas onlyentitled to make a declaration under thatarticle. As a matter of fact, while
Article 309 expressly prohibits any reservations to the Convention, itis said in Article 310
that: "Article 309 does not preclude a State, when signing, ratifying or acceding to this
Convention, from makingdeclarations or statements,howeverphrased or named, with a view,
inter alia, to the harmonization of its laws and regulations with the provisions of this
Convention, provided that such declarations or statements do not purport to exclude or to
modify the legal effectof the provisionsof this Convention in their application to that State."
Keeping in mind the purpose thus assigned to such declarations, and taking into consideration
the factthat the Romanian declaration wasjust an attempt to introduce, as an understandingof
the delimitation rules of the Conventionz3, an amendment already proposedby Romania at the
very end of theLaw of the Sea C~nference~~ i, is obviousthat,from a legal point of view, the
21
Law dated 16May 1945 ,mended on 6 March 1986,I7 December 1996, and 3 April2003 (emphasis
added), Annex47, Vol4.
23 M, paras.8.20-8.30.See also RM, paras.8.34,8.126and 10.7.
During the ThirU.N. Conference on theLaw of the Sea, the negotiations on the delimiofthen
: continentashelfand the EEZ were closely connectedto the discussions dealing wtheregime of
idands,inparticuladuringthe ninth session theConference. See B.R. Oxman, "TheTh~rdUnited
Nations Conference On the Law Of The Sea : The Ninth Session (1980)", American Journalof
j InternarionaLaw,1981,pp. 211-256(atpp.232-233).
24 In I982 Romaniaproposedan amendment to thearticleon theregime of islandthedraft Convention
addinga fourthparagraph: "Uninhabitedislets should nhave any effects onthe maritime spaces
I belonging to the main coassof the Statesconcerned". (Doc.AiCONF.62/L1. 18 of13 April 1982;
l UNCLOS111O , flciaRecords, VolumeXVI, p.225).
IRomanian declaration is of limited significance. Itis therefore impossible, as a matter of
principle, todraw the conclusion, as Romania does, that the interpretation unilaterally stated
by Romania in its declaration should be automatically applied in a maritime delirnjtation
litigation in whichRomania is involved.
7.30 Moreover Romania's position is contradictory. On the one hand, Romania pays
particular attention to demonstrating that its declaration was an "interpretative declaration"',
not a reservation; but,on the other hand, itcontends that Ukraine did not objectorotherwise
react to that declaration. Romania is thus applyingincorrectlyto declarations the provision of
Article 20, paragraph 5, of the Vienna Convention on the Law of Treaties concerning
acceptance of reservations. Accordingto thatprovision, "a reservation is considered to have
been accepted by a State ifit shallhave raised no objection to thereservation". However, no
such rule applies to statements or declarations which are not reservations properlyspeaking,
even when they areconsidered asinterpretative declarations.
7.31 Romania has simply forgotten to mention that there is no need to object to a
declaration whichis not a reservation and whichdoes not modify the legal effect ofthe treaty
in question. In such a situation, there is no legalobligation for aState to react,and no legal
effect can be derived from itsabstention todo so. It is to noted, incidentaIly, that Romania
itselfis conscious of thislegal situation when it states: "Neitherthe USSR nor Ukraine made
anycomment or objection to theRomanian declaration.Nor did any other State"''.If no State
has reacted to the Romanian declaration, it is certainly not because all the other States were
ready to accept the so-called Romanian interpretation of Article 12'1;it issirnpIybecause
none of them felt itself obligedto react. And - to say the least- it would certainly be
unreasonable to infer that allof them arenow bound by the Romanian declaration.
7.32 For those reasons, the Court cannot accept the extravagant Romanian contention
according to which "[tlhe 1982 UNCLOS ...mustbe applied and interpreted by the Court oh .
the basis of the onlyinterpretation acceptedby R~rnania"~~A . nd therefore theCourt does not
have to take into considerationRomania'sdeclaration.
25 RM, para.8.22{emphasisadded).
26 RM, para.8.30. 7.33 For the same reasons, the Court cannot accept theextraordinary Romanian contention
according to which the reference made to Article 121 of UNCLBS in the 1997Exchange of
Letters as one of the principles to be applied in the delimitation was a clear indication that
"Ukraine accepted the applicabilityof the third paragraof Article 121, as interpretby the
Romaniandeclaration, to the present situation"". Thatcontention is based on a verysimplistic
and entirely wrong reasoning, which may be summarized as follows: (a) At the time ofthe
~
conclusion of the 1997 Agreement, the rules of international law concerning islands
applicable to Ukcajne and Romania were those established by the 1958 Conventions, since
UNCLOSwas not in force between the two States28(b) Therefore, at that time, when they
made a specific reference to Article 121 of UNCLOS, they referred necessarily to the only
provision of that article enunciating a new rule of international law, thatis the third
paragraph2';(c) Since at that time Ukraine was well aware of the interpretative declaration
l
made by Romania with respect to that provision, Ukraine has implicitly accepted the
application to Serpents' Island of the third paragraph of Article 121 in conformiwith the
interpretation giveto that provision btheRomaniande~laration'~.
7.34 Romania contends that Serpents' Islandis simply a "rock"under Article 1(3) of the
~ Law of the Sea Convention, and as such does not generate any maritime zone beyond the
external lirtiof itterritoriawaters.And under those conditions, Romania asserts, Serpents'
Island cannot qualify asa possible basepoint for the drawing of an equidistanlinedividing
the respective areasof continental shelf and the exclusive economic zones of Ukraine and
Romania.Those contentions and assertions are deprivedofany raison.dt2tre,as willbe seen
in the following sub-sectionwhere it wiflbe demonstrated thatSerpentstIslandis not amere
"rock", and thatiis not insignificant,contrary what issaid intheRomanian Memorial.
A. Serpents'Island Is an "Island",Nota ''Rock"
7.35 It is first to be noted that since time immemorial Serpents'Island has been known as
just tha- Serpents'Island.Even if ithas enjoyed different namesthroughoutthe centuries, it
was ilways referred to as "IslanX. .."Unlikeother marine features which are true rocksand
" RM, para. 8.34.
28 RM, para.8.32.
RM, para.8.33.
'' M, paras8.34-8.35.are named so far as Ukraine has been able to discover Serpentst Island has
neverbeenknown as "Serpents'Rock" or some similar non-islandname32W . hile such matters
of nomenclature maynot be decisive of the legal status of a geographicalfeature, they are -
especially when used over a very long period of time - strongly indicative of the appropriate
legal statusandraise apresumption in favourof the status which the name indicates.
7.36 The legal definition of an "island confims that presumption. The only relevant
provisionof the 1982Lawof the Sea Convention which defines an "island" does so in terns
which clearly includeSerpents'Island within the definition. Article 121(1) defines an island
as "a naturally formed area of land, surroundedby water, which is above water at high tide".
Serpents'Island is manifestly a naturally formed area of land, surrounded by water, and above
water athigh tide.
7.37 This legal definition coincides with the ordinary meaning of the term "island". The
insular status of Serpents' Island is evident from its appearance. As clearly shown on the
photographs reproduced in this Counter-Memorial, it isa physical feature of some size and
substance, when comparedfor example with the Persian Gulf feature of Qit'atSaradahwhich
was recently defined by the Court as "a very small islandm3'. It is also clear from those
photographs that Serpents'Island is not just an uninhabited and uninhabitable feature, but is
very much an island with appropriatebuildings and accommodation for an active population.
Romania seeks to arguethat much of that population has only recently moved to the island,
but this is to ignore the long history of human presence on the islandJ4.From that pointof
view, Serpents'Island is to be considered in comparison with several other maritime features
which are clearly islands but which have minimal population IikePitcairn T~land~ ~,erguelen
Islands3',Crozet Island37o ,r even no permanently resident population like South Georgia and
South Sandwich Islands.
31
Such are, foexample, "Rockall",locatedinthe NorthAtlanticOcean about 200nauticalmlleswestof
the Hebrides,and "EddystoneRock", off the southercoast of Englandat the entrance of Whitesand
Bay inthe BritisChannel.
32 Itisnoteworthy thatdespiteits small size, Serpents'Islwas never called "SerpentIslet"it being
generallyunderstoodthat an"isletisaverysmall island.
33 Maritime Deiimifarion andTerritoriaQuestionsbetween Qlatar and Bahrain, MeritJudgment,I.C.J.
Reports 2001, p99, para.197. Athigh tide the lengand breadthof Qit'aJaradah areabout 12by 4
metres, anditaltitudeis approximately40centimetres.
34 See below,paras.7.50-7.88.
35 54 inhabitantin1995.
36
37 60 peopleworkinginscientificresearchstations.
About 20 peoplein ameteorologicaland scientificstation.7.38 To someextent Serpents'Island'sstatus as an islandis the counterpoint to it notbeing
a rock as that term is understood in Article 121(3) of UNCLOS. That provision, which is
vaguely worded, states: "Rocks which cannot sustain human habitation or economic life of
theirown shall haveno exclusive economic zone or continental shelf". This language is not
without its difficulties.
7.39 First, it does not define what is meant by a "rock". Implicitly Article 121(3) isa
derogation from Article l2 1(2), introducing an exception to the general equality between
islands and mainland coasts and disentitlingrocks from the shelfand EEZ maritime zones to
which an island isentitled; a rock is therefore impIicit1ya kind of island.Beyond that, the
word must bear its ordinary meaningin its context and in shelight of the object and purpose
of UOIJCLOS .n that basis a "rock"must be understood as a small and insignificant feature
38 -
composed essentially of material commonly regarded as rocky , in contradistinction to an
"island" which isan altogetherlarge ard moresubstantial feature. Romania argues thatsince
Serpents'Island is composed of rockymaterial itmust be regarded as a "rock",but this cannot
be so since most islands are to agreateror lesser extent composed ofrocky material. Ukraine
submits that on the basis of the ordinary meaning of the term as used in Article 12113) of
UNCLOS, Serpents'Island cannot beregarded as a "rock".
7.40 Second, the language of Article 121(3) is ambiguous as to whether the two
subsequent conditions which apply to rocks are to be understood disjunctively or
conjunctively: i.e.,to fallwithin Article 121(3) must a rock be both unable to sustain human
habitation and unable to sustain economic lifo ef itown, or is itsufficient to bringitwithin
that provision if ony one of those conditions is met? Ukraine submits that the two conditions
have to be read conjunctively, given that both are introduced by the single verb "cannot
sustain".From that it follows that, sinceSerpents'Island, manifestly can - and does - sustain
human habitation, Serpents'Island, even if it were a rock (which is denied), does not fall
within Article 12163).
There is questionhow literally this proviisto betaken sincif taken literallwouldexclude
minor above-water features composeof sandbankas nd suchlikeIt seems unliketl oyhave been
intendedto allowsuchsandy features thave acontinental shelfandEEZ, whileprecluding "rocks"
fromhaving them. - 183-
7.41 Third, in respect of both "human habitation" and "economiclife of its ownt',there is
considerable ambiguity as to what precisely is meant by these terns. It might be possible to
read them as meaning that, in order not to fall within the scope of Article 121(3), human
habitation must be possible on the rock without the need for any outside assistance
whatsoever, and that similarly the rock must be able to sustain an economic life of its own
without any outside assistance whatsoever. If such a degree of self-sufficiency were to be
required, however, in order for a maritime feature not to fall within Article 221(3), many
features which are universally treated as islands would have to be regarded as caught by
Article 121(3) and thus deprived ofa continental shelf and EEZ. This would come as a great
surprise to a large number of States: particularly (but not exclusively) in climatically
inhospitable zones. Even some quitelarge islands are incapable, without considerable outside
support, of sustaining human habitation or a separate economic life. "Human habitation" is
not the same as a permanent resident population; and "economic life" is not the same as
viability as an independent, self-contained and self-sufficient economy involving the
development of natural resources,since these termsrefer to lesser forms of economic activity.
Accordingly, and particularlyin relation to small maritime features, these criteriacan be
satisfiedby small-scale activities generating income and expendture and the flow of goods
and services (such as scientific research and tourism). Moreover, if one is tempted to use
economic importance as a criterion, it is then necessary to include the potential economic
importance that an islandmight have if it generated an EEZ or itsown continental shelf; and
when applied to Serpents'Island, the existence of substantial natural resources "of itsown"
cannot therefore be excluded.
7.42 Given the language, context and purpose of Article 121 of UNCLOS, a lessstringent
interpretationof the ability to sustain humanhabitation and economic life isrequired, which
takes account of the realitiesof human existence. For the purposes of Article 121, the ability
to sustainhuman habitation is to beunderstood as meaning that, as a matter of practiceover a
number of years, human habitation has been shown to be possible on the island, while the
abilityto sustain an economic life of its own is to be understood as meaning that, as a matter
of practice over anumber of years,life onthe islandhas provedeconomicaHysustainable.
1 7.43 Fourth, the requirement which has to be satisfled if a feature isto fall within Article
121C3) is that human habitation and economic life "cannot" be sustained. Itis the absolute
inabili~ to sustain those two activities which has to be established, not just that inpracticeandat any particular time they are nut currently sustained. It is apparentthat, infact, human
habitation has existed on Serpents'Island for a long time: thelighthouse was built by Russia
between 1837 and 1843, and certainly since the earlyyears of the 2othcentury,i.e. f,r nearly
100 years, there has been a continuous human residential presence on the island all year
around.
7.44 Seenin the light of the foregoingobservations, not onlyis Serpents'Islandan "island"
when tested against traditional practice, the ordinary meaning of the term, its definition in
WCLOS, itsphysical features and inhabitants, and itsusesover many years, but it also falls
outside the meaning of "racks" to which Article 121(3) applies, and is in any event able to
sustain human habitation and economic Iife of its own as those terms are properly to be
understood in theircontext.
7.45 Consequently, Serpents'Island is governed by Article 121C2)of the Convention,and
as the Court stated in the Qarar v. Bahrain case: "In accordance with Article 121,paragraph
2, ofthe 1982 Conventionon the Law of the Sea, which reflects customary international law,
islands, regardless of theirsize...generate thesame maritimerights, as other Jand
That is also why Serpents' Island must be used as a basepoint from which the provisional
equidistance linedividing the areas of continental shelf and the exclusive economic zones
appertaining respectively to Ukraine andRomania is drawn.
7.46 Romania has denied the right of Ukraine to use Serpents' Island as a basepoint for
delimiting its continental shelf and excIusive economic zone in the Black Sea, because
Ukraine &d not include that island among the reIevant points when it had notified to the
United Nations of the geographical coordinates of the points defining the baselines for
measuring the breadth of the territorialsea". But the argument made by Romania in this
respect is of no consequenc Ie.fact,if that list of geographical coordinatesdid not include
anypoint on Serpents'Island, itwas because itwas not necessary.As a matter of fact, the list
defined the basepoints of a systemof straight baselines, and Serpents' Island was not part of
that system. Moreover, it must also be recaIledchatcommunication of those coordmatesto the
United Nations was done through a note verbale dated l1 November 1992,i.e., shortly after
39
Maritime DelinziratiortaTerritoriQuesrionsbeaveen Qatarand Bahrain,Merits,Judgment,I.C.J.
40 Reports 2001,p.97,para.185.
RM, para.4.46.7.49 In the Iight of Serpents'Island'shistorical background, geographical position and its
present importance for Ukraine, it is not justifiable for Romania to dismiss it as an
insignificant feature, or mererock, that should playno role in the present delimitation.
The HistoricalImportanceof Serpents'Island
(i
7.50 AsRomania'sMemorial itself acknowledges,Serpents7sIand was for centuriesawell-
known centre of worship and it harboured a sanctuary and a statue of the Greek hero and
demigod A~hilles~~ A.t the same time, the temple's wealth attracted looters and pirates and
ancient accounts refer to military operations conducted on and around Serpents'Island in the
middle of the 3rd century B .C.45.
7.5 1 Serpents'Islandenjoyed a number of names throughout the centuries. It was referred
to as "Leuce", or "white island" by the philosopher Arsian4',"white shore of AchiIles" by
E~ripides~~p ,resumably on account of the seabirds that migratethere during certainperiods of
the year,and which apparentlycovered its entiresurface in ancient times. Pindar called it "the
conspicuous island''. Another common Greek name is "Fidonisi", corresponding to the
Turhsh denomination "IlanAdassi " , "Ilanda"or "Ilanada"4g.
For an account of the archaelogicalfindingsmade on the island, including Achilles'Statue, see
Memoirs, Odesa Community, Antique Stories,Vol. 11FirstPart, Odesa, Gity Printing-House1848,
Annex 51, Vol.4. See also M. KoehIer,op. cit.Annex 49,Vol. 4. The report ofa hydrographjcal
survey conducted onSerpents'Island in 1823,following the requestof the Saint Petersburg Academyof
Sciences,mentioned for thefirsttimethe remains ofthe Ioniantemple of Achillesand attracted the
attentionof archaeologists. However, by the time the Odesa Societyfor History and Antiquity
organised an expeditioto the island, in 1841,part of the ruins of the thadlbeen removed and
usedto build a lighthouse whose constructionbegan in 1837 andwas completedin 1843. See S. B.
Okhotnikav,"Notes of the FacuIty of History", Issue Odessa NationalUniversity 1996,p. 158,
Annex 52, Vol. 4. See, also, the publicZmeinyi Island: Yesterday,Today,Tomorrow, Museum of
Odesa,Annex 53,Vol.4, and Annex RM 8,p.23.RM, para.3.2.
45 ,Ancient Greek Siteson the Northwestern Coast ofthe Black Sea, op.ca., pp. 160-161,Annex 48,
Vol.4.
46 1
IAsrianPeripl. FontEux. p. 21in Travelsin VariousCountries ofEurope,Asia andAjrica, Printed for
47 T. CadeEaInd W. Davies,Strand, London,MDCCCXIII,p. 648.
48 Euripides,Iphigenia iTaurides.
E. TaitboutdeMarigny, Portulan de iaMes Noire et delaMer d'Azov ou description des cGtesdces
deux mers a I'usagedes navigateurs,Odessa,1830, p. 113,Annex 54, Vol. 4. See, also, the various
denominations of the islanusedin the antique maps listedfootnote53 below and the list of names
containedin Annex 112,Vol. 5.7.52 Serpents' Island's reputation did not fade when the Roman Empire 'expanded its
influence over this region and deployed garrisons on the island in the 1st century A.D.49.With
the adventof Christianity, the cultof Achilleschanged nature and - while retaining a spiritual
component - becamemoreinfluenced by elements associated with sailing and the after-life5',
7.53 Numerous artefacts associatedwith the worship of Achilles, as well as antique coins
and gems, have been discovered on the island and in the waters surrounding it and are
presently collected in the Archaeologcal Museum of Odesa, the oldest museumof Ukraine,
foundedin 1825".These finds testify to the religious rituals that were carried out on the
islands2.Pottery was also found which can be attributed to the 9th and 12th centuries as well
as a number of Byzantine coins53T . naddition, a great number of anchori were retrieved in
Serpents'Island'swaters, a collection which is believed to be one the largest of itskind dating
fromthe ancient Greek
7.54 The firstappearanceof the is1and in a geographical guide -bearing the name "Filoxia"
- was inthe Italianportolan Cowlpasso cl e avigare, drawn up in Pisa in 1250-1265.This is
probably linked to the arrival of Venetian and Genoese merchants in the northern Black Sea
coastss.
7.55 From the 16th century onwards, Serpents' Island was frequently depicted (with its
different names) as a significant feature on maps and navigational pilots of the region.
Romaniaitself has submitted older maps of the area depicting Serpents'IIsand (ifnot always
fully accurately) as a prominent feature of appreciable size r,ferred to as "Fidonisi" (map
dated 1584Is6,"Ilanada Isle" and "Fidonisi" (1665)57, "I Nanada" (l 6813)~'"Ilanda I"
Ancier~Greek Sitesun the Northwestern Coastof the Black Sea,up. cit., pp. 163-165,Annex 48,
Vol. 4See, also,S.B. Okhont iov, "Notesof theFaculty of History"Issue No. 3, OdesaNational
University, Odesa, 194p. 51,Annex52, Vol.4.
S.B. Okhontikov,"Notesof the Faculty of History",cif.Annex52, Vol. 4 and AncienGreek Si~es
onthe NorthwesternCoastofthe BlackSea,op. citp.166A ,nnex48, Vol.4.
Seethe flyersof theMuseumand picturo fsthe artefactsreproducatAnnex55,Vol.4.
AncientGreek Sites onrhe Northweslern Coastofthe Black Sea, op, cit.pp. 160-161,Annex 48,
Vol. 4See also S.B. Okhotnikov,"Notes of theFaculty of History",opcif.pp. 48-49,Annex 52,
Vol.4.
S.B. Okhotnikov,"NotesoftheFaculty of History",opcirp.55,Annex52,Vol.4.
Ibid ..,163, See also A. S. Ostrovcrkhov, "Anchoragof AchillesSanctuary on Leuke (Zmiinyi)
Island", Archaeology Science Journal, Ukrainian Academy of Sci-Institutof ArchaelogyKyiv,
2,2002,Annex 56, Vol.4.
S.B.Okhotnikov, "Notes of tFacultyof History"up, citp,56, Annex 52,Vol.4.
Map RM A5. -188 -
(1772)59,"Ilanadasy" and "Isle du Serpent" (1780)60,and "Insula Serpilor","'Leuce" and
"Phidonisi" (~ndated)~'.Other examples of early maps which depict the island with its
different denominations, can be found in the publication entitled Descriptio Romaniae
deposited by Romania with the Court. In addition, reference can be made to sixteen maps
spanning from the 16th to the 18th centuries kept in the Map Roam of the Library of
Congress,in Washington, D.C2.
7.56 Inthe 18th and 19thcenturies, the River Danube, and its Delta leading into the Black
Sea, represented the boundary zone between the competing interests of Russia and the
Ottoman Empireand were the focus of particular rivaIry,Successive treaty settlements of the
19th century (in 1812, 1829 and 1856) fixed the boundary between Russia and the Ottoman
Empire alongvariousarms oftheDanube Delta6'. Given its location offthe northern branches
of theDelta, Serpents'Island's strategicimportance grewfurther.
57 MapRMAl.
58
59 MapRMA4.
MapRMA3.
MapRMA2.
61 Map RMA6.
62 The antiquemaps kept in the Libraryof Congressare listedbelow. Where availabthe denomination
usedforSerpents*Islandis indicateinparenthesisafterthetitle and dof each map:
m
BlackSea,Agneso AtlasMap(1535-1546);
PontusEuxinus, Ortelius (1590) (LeuceInsulaLychophonis(1:3.890);
Pontus EuxinusOrtelius(ca. 17thcentury)/1:3.800);
Ponrus Euxinus, Sanson(1694) (2maps on 1sheer)(2:3.800.00);
m NavaMappa Maris Nigri,Lotter(ca.18thcentury)(Tlandaisland(1:6,000.00);
Nouvelle carrede laMerNoire et du Canal de ConstantinopleVisscher(ca. 18thcentury)(Ilanda
island);
m
Nouvelle cartede La petileTariarie, et la Mer Noirernonrmnt lfrontitresde I'lmpiratrice de
Russie et I'Ernpereurdes Turcs, tanten Europe qu'enAsk disignie selura la proposition de
Guillaumede I'lsle,O~teu(ca.13thcentury);
NovaMappa MarisbyLeutter(1731);
NouveIle cartede laCrimde erroutelaMer Noire(1737)(Ilandaisland);
Carte reduirede laMer Noire,Bellin (1772)(IlanAdasiouIle desSerpents);
FirstPar? ofTurkey inEurope,S. Dunn (1774)(Ilan Adasior SerpentsI.) (1:2.900);
m Cartedesenvirons de laMer Noire,F.Santini,(1777)-Ilan Adasi);
m Carte des environsdela Mer Noire,F.Santini,(1780)-IlanAdasi);
Carterkduite de la MeNoire(1785)(I1e desSerpents);
NouveIIecarle de lapetite Tartarron Taurie, montrant lesfronti2rdesl'Imp6ratricde Russie,
et I'Enapereudes Turcs.ranten Europe gu'en Asie,cornpilie sur lob,~ervarionslusnouvelles,
Elwe & Langeveld,Amsterdam (1787);
A new drafiofthe Hack Sea, Sayer(1788) (IlaAdasi or SerpentsIsland).
63 SeeRM, paras. 3.4-3.7.7.57 Afterthe conclusion of the Treaty of Adrianople in 182964R , ussia assumed control of
Serpents'Island, andin 1837it began building a lighthouseon the island to assistnavigation
in the BlackSea.The construction of the lighthousewas completed in 1843.
7.58 From 1841 to 1851, a quarantine commissiener, a corporal and 12 soldiers were sent
to the island by Russia "with the purpose of control of the quarantine precautionary
regulation^"^T ^.he commissioner took an active role in the collection and protection of the
antique objects foundon the island and hired workersto conductthe excavations which were
carried out on the instructions of the Imperial Russian Society of Archaeology. During the
archaeological surveys thatfollowed, numerous artefacts were unearthed and the siteof an
ancientnecropolis was discovered6'.
7.59 The quarantine commissioner drew up a plan of the island showing the ruins found
and the archaeological digs that had been carried out and the excavation surveys ended in
1856whenthe officer and soldiers who lived onSerpentsYsland were withdrawn fromit after
Russia's defeat in the Crimean war and the subsequenttransfer of the island to the Ottoman
7.60 While earlier treatysettlements did not expresslyrefer to Serpents'Island, an express
treatyreference to the island wasmade as earlyas the Protoco1of 6 January 1857between the
representatives of the EuropeanPowers whichwere parties to the Treaty of Paris of 30 March
1 In that Protocol, SerpentstIsland was stated "tobeconsidered as an appendageto the
Delta of the Danube". The Ottoman Government agreed to maintain on the island "a
Lighthouse destined to render secure the navigation of vesselsproceeding to theDanube and
to the Port of Odessa", while the River Commission established by the Treaty of Paris "will
64
Treatyof Peace between Russia andTurkey, Adrianople,2/14 September 1829, reproduced in
ConsolidatedTreaty SerieVol. 80, p83; Martens,Nouveau Recueildes Trait&, Vol.VIII,p.143;
British anForeignStalePapers, Vol.XVI,p.647;E Heatslet,TheMapof Europe by Treary(London,
65 ButterworthslHarrison1875),Vol. 11(828-1863),p.813.
See I.V. TunkinaRussian Science on ClassicalAntiquifies ohe Ruxsian South (XVIlI-MidXIX
Centuries)p. 410, Anne57,Vol. 4.
66 Ibid.,pp.410-411.
67 Ibid., 414.
68 Protocol of ConferencefixtheBoundariesof Russia, the PrincipalanidTurkey,between Austria,
France, GreatBritainPrussia, RussiaSardinia andTurkey Paris, BJanuary 1857,in ConsoIidated
Treaty Series, Vo116, p. 155:Martens,NouveauRecueil Gkntral,Vol. XV, p.793; British and
ForeignState Papers, VoXLVII, p. 82.HertsleTheMap of Europe by TreatyVol. l1 (1828-1863),
p. 1298.see to the regular performance of the service of such ~i~hthouse"~~.The lighthouse has
continuedtoplay a significant partin theimportance attachingto Serpents'Island.
76 Despite the lighthouse, in foggy weather in 1914 a British ship ran aground on the
island and was wrecked, the rescue ships coming from Constantinople. As a result of this
incident, the EuropeanDanube Commission arranged for a signal device ro be used on the
island in case of foggy weather, the necessary explosive being kept in a storehouse builton
the southern coast of the island7'.
7.62 During the First World War, Serpents'Island was the scene of military action on
several occasions". The island was occupied by Russian soldiers, and the lighthouse was
bombed anddestroyed by aGermancruiser in1917,Germany laid mines in thevicinityof the
island, and a Russian torpedo-boat which had come to supply the Russian soldiers stationed
on theisIandsank in the waters off the north of the island after striking a Germanmine. An
obelisk and memorial plaques were erected to commemorate the soldiers who perished in
these incidents7?.
7.63 In 1922, the European Danube Commission rebuilt the lighthouse after its destruction
during the war13. Again - in April 1931 -the Commission repaired the lightning conductor on
the lighthouse which had broken in a violent storm.
7.64 In the period between the two World Wars, when Serpentsf Island was under
Romanian administration, the Romanian Government considered a number of plans for its
development,including the building of a monastery, a rescue station forships in distress and a
69 A map annexedto theProtocol (MapRM AS)showed the mainland in the region of the Danube Delta
and Serpents'Island at an appropriate distance off-shore, but the mapdid not show the island "as
I appurtenanta the delta" as stated by Romania:the relationshipbettheisland and the Delta as
depictedonthemap was simplyone of geography,with no indicationof appurtenance.The relevant
1 provisionof the 1857 Protocol were substantiallyrepeated in a furtherTreaty concluded on 19 June
1857.SeeRM, para3.10,n.23.
/ R.I. Calinesclnsula SerjdorSchila monograjic(1931),p.15,AnnexRM 6.
' 1 SeeR.I.Calinescu, op.cipp.50-51,Annex RM 6.
1 Odesn Regional State AdministrationCulturalHeritage ProtectionDepartment, Protectionand
i Researchof the Monuments ofArchaeology inOdesa Blast (Province) Issue I, Odessa 19p. 26,
Annex58,Vol. 4.
n R.I. Calinescu,ocit.p,50,Annex RM 6,See alsoProtocolN. 914in theArchiveof Galats,Fundof
I theEuropeanCommission of the DanubeVol. 55, 1921and Vol59, 1922,Annex59,Vol. 4.hospital for lepers under the patronage of the Order of MaltaT4P . erhapsthe most ambitious of
Romania'sprojects for the islandwas the establishment of a prisonfor political prisoners with
1,500cells.All necessary supplies and equipment were to be carried to the island on ships of
the EuropeanDanube Cornmis~ion'~N . oneof these plans was put into practice due to thestart
ofWorld War 11.
7.65 Writing in 1931, the Romanian author R.I. Calinescu, in a monograph devoted to
Serpents' Island,recorded that 8 people resided on the island: 4 lighthouse staff and 4 military
personnel. In addition, he mentioned that other persons - such as archaeologists or other
scholars - lived on the isIand for periods of time76.Calinescu also recorded a temporary stay
on the island of a party of 32 Russian emigrants in 1922,and another such visit in July 1925,
as well as others who took refuge on the islandduring storms77.
7.66 This Romanian author further stresses the importance of Serpents'Island - which at
times was, it should be recalled, under Romanian administration - under several different
aspects:i) its potential for tourism, given the island'sclimate, suitable for the establishment of
a balneal station and the construction of a resort; ii)itsstrategic importance; iii)its scientific
significance, not only for meteorological and environmental research, but also for
ornithology,botany, geology, palaeontology, etc7'.
7.67 During the Second World War, Romania allied itself with Germany, and Serpents'
Island was placed under the authority of the Commandant of the German forces in the Black
Sea, and consequently was occupied by German troops. 'Between1941 and 1944 the waters
around Serpents' Island and the Danube Delta were the theatre of naval operations. An
authority cited by Romania itselfshows that the lighthouse building had been destroyed by
aerial bombardment, and that an engineering unit was sent ta the island in 1944 in order to
construct emplacements for cannons and machine guns and to rebuild the destroyed
74
D.L. Stekhlescu, "InsulaSerpilor,pentrudeportatipolicc" iAfliimea,25March 1938,Annex 60,
Vol.4. D.PerteSerpents'Isl iande Way of Sharks,Bucharest, 1996,p. 69. Ann61,Vol.4.
75 Inforinaji a, March 1938, Annex 62, Vol, 4, Curenrul, 21 March 1938, Annex 63,Vol. 4,
D.L. Stekhlescu,op.cib,,Annex 60, Vol. 4. Dutse Atexandru,"Lighthouses of the European
Commissionof theDanube (ECD)located in thDanube Delta andon the ~slaZrniinyi (1856-1939)",
extractedfromAssociatioofPrakhovpovir historyVol. VIIIPloieshti1996,Annex64, Vol. 4.
76 R.I. Calinescu, cit., p. AnnexRM6.
n Ibid ..50.
78 Seetheexcerptsfrom themonographby R.I. Calinescufiledunder Annex10,Vol.2. building7'.It also showsthat "watersupplieswere getting shorter" which meant that water had
to be rationed -afact which demonstratesthat water was availableon the island.
7.68 Servicemen consisting of Air Defence Troops of the USSR were permanently
stationed on Serpents'Islandfrom 1946until Ukraine'sindependence.
7.69 On 23 May 1948, representatives of the Soviet Union andRomania met on Serpents'
Island in order to sign a Proc2s Verbalacknowledging thecompletion of the formalities for
handing over the isIandto the Soviet Union". Thereafter, the island was transformed into a
miIitary post under the directcontrol of the central military authoritiesin Moscow.
7.70 The ~econstruction of the lighthouse was completed in 1952 and the beacon's light-
optical systems were improved on three occasions: in 1955, 1967 and 1975.The lighthouse
and its residential quarters underwent totaI renovation and modernization during the period
2002-20048'. Photos D and E show the lighthouse before and after themost recent renovation.
7.71 On 29 November 1965, the territory of Serpents'Island, previously used by military
units of the Odesa Naval Garrison, was listedas one of the plots of land to be allocated for
"actual Iand use"''.
(ii) Present Importanceof Serpents'Island
I
7.72 After Ukraine's independence on 24 August 1991, andparticularly over the last ten
years, Serpents' Islandhas been administered by Ukraine as part of the Stateadministrationof
Odesas3,The Government of Ukrainehas enacted a number of legislative measures designed
to promote Serpents'Island'sdevelopment and demilitarise the island in conformjty with the
1997Exchange of Letters. The first stageof developmentof theisland began with Resolution
, 79
I Stefanescu, "Dinarnintirile velaranilor", in Revde ixtorbe mililaraNO. 3(31)/1995,p.48,
80 AnnexRM 10.
81 Seeabove,para.5.40.
Seeextracof the article "Serpents'TslandLighthouse"fromthe Lighthouse'srecords,65,Vol.4.
82 See alsothelay-outofthelighthouse compleatAnnex 66, Vol.4.
83 ISee DecisionNo. 844/37lC, Annex 7, Vol.2.
See DecisionNo. 197-XXlIof 13February1998, Annex7, Vol.2.See, also,DecisionNo. 167-XXTIl-
X of 27 November2001, Annex7,Vol. 2 and Resolution No3003-11of the SupremeRada of Ukraine
of 17 January2002, whichestablished theborders of theChilia distOdesa,includingtheterritory
of Serpents'Island. An7, Vol.2.ouse Complex in2002 beforeReeonstrucr~
1.No. 1009of the Cabinet of Ministers of 18December 1995regarding thefurther development
of theinfrastructureand economiclifeon Serpents'Islandand on thecontinental shelP4.
7.73 Resolution No, 1009 envisaged the construction of a berth and a wind-diesel power
plant and theconstruction and repair of the residential premiseson the island, tobe carriedout
by the Ministry of Defence. Other planned instalIations included "an automated earthquake
precursor recording station and a post to observe the effects of Danube sedimentson geology
and ecology of the coastal territories and waters areas adjacent to the island" and a
meteorological station, All these have been completed. Members of the hydro-meteorology
centre forthe Black Sea and the Seaof Azovreside on the island from time to times5.
7.74 Twofurtherresolutions of the Cabinet issued on 18June 1996 and on 8 October 1997
allocated funds for the construction of the infrastructure alreadyrefersed to inResolution
No. 1009, andincluded additional funds for thebuilding of a seasonal ornithological stationg6.
An important component of the work to be canied out concerned the assessment of geo-
chemical contamination of the sea floorby industrial and municipal concerns of Ukraine and
Romanias7.
7.75 On 13December 2001, the Cabinet of Ministers of Ukraine adopted a new Resolution
entitled "On the ComprehensiveDevelopmentof Serpents'Island" and on 19February 2002
the Resolution entitled "On the Allocation of Funds for Completing Construction of a
Stationary Berth on Zmiinyi Island"88 P.ursuant to these resolutions,the construction of the
mooring complex was completed and afacilitywas opened in November 20049 A9. can be
seen from thephotographson theopposite page, there presentlyexists a largeberth which can
receive avarietyof cargodeliveries.A smallerberth is under construction.
84
85 SeeAnnex 67, Vol. 4.
Seethedocument entitled1998Information ConcerningthImplementationof the Cabinetof Ukraine
Regulationof8October 1997No. 1114",atAnnex68, Vol.4.
85 ResolutionNo. 652 of 18 Jun1996and ResolutioNo. 1 114 of 8 October 199Annexes 69and 70,
Vol.4.
87 Seethe document entitled "19InformatioConcerningthe ImplementationoftheCabinetofUkraine
Regulationof 8October1987No. 1114",at Annex68, Vol. 4.
88 TheResolutionsareattacheas Annexes71 and 72, Vol.4.
89 See "lnformatioConcerning the Fulfilmentof the ComplexProgram otheFurther Development of
the Infrastructureand the RealizattheEcon~micActivities onZmiinyi Islaand theContinental
Shelf for the Period of 2002-2004". The State Regional AdministrationOdesa, the Central
AdministrativeBoard of Economy,November2004, Annex 73,VoI.4.7.76 On 31 May 2002, the Cabinet of Ministersof Ukraine enacted a Resolution regarding
the "ComprehensiveProgramme of theFurther Development of the infrastructureand conduct
of economic activities on Serpents'Island and on the Continental Shelf" for the period2002-
200690 . he programmewas aimed at demilitarising the island, ensuringreliable connections
and transport communications with the mainland, diversifyingeconomic and other activities
and ensuringrespect for the environmental regime of the island andits continental shelf.
7.77 The Resolution listed a series of activities connected with the programme, which
included: complete withdrawal of all armed forces from the island, construction of a jetty,
establishment of a frontier post, performance of work connected with the water supply,
treatment, drainage and sewage, completion of the works connected with the lighthouse,
installation of a station to alIowtelephoneand television connections via satellite, repairs to
the post office, establishment of a medical station, creation of a scientific and educational
complex, setting up a fishery guards station, adoption of a tourist development programme
and creation of a museumon the islandg1.
7.78 At present, communication with the islandiscarried out by means of telephone and e-
mail and post. There is asatellite antenna allowingthe viewingof television and a post office
situated in the lighthousecomplex.
7.79 The Ministry of Education and Sciences supervises a programme of scientific research
on Serpents'Islandq2 and has declared the island a State Zoological Reservation Areag3I .n
addition, Serpents'Island is listed in the Geological Registry of Ukraine and - as a historical
monument - in the State Register for National Heritageg4.Six research expeditions were
carried out on the island in 2003 alone which involved scientific research in the areas of
Resolution of 31 May2002, No.713,Annex 74, Vol4.
91 Some of theseinstallations are shown in the photographs under 75,Vol. 4, togethewithother
snapshots of lonetheislandand someof theartefacts kept inits museum.
m , See Orderof the Ministry of Education and Sciences of Ukraine of 13Decem2002,No. 706, and
i "Principles othe Research Station 'ZrniinyiIsland' of the Mechnikov'sOdesa National University
I @S21 of ONU), Kyiv.2002, Annex76, Vol. 4.Far the specific planof activities on SerIsland
91 supervised andfinanced btheMinistry,seeAnnex77,Vol. 4.
See Order of Ministry of Natural EnvironmentProtection of Ukraine of 25 Janu2004, No. 54,
1 Annex 78,Vol. 5. Seealso. Ordeof 27 January2005,No. 54,Annex78, Vd. 5,PledgeofProtection
No. 6 of10 October 2003 and Decree oftheResident of Ukraine of 9 December 1998,No.1341198
andrelevant"Provisions",Annexes79and 80,Vol. 5.
I See Orderof 15 June 1999, No. 393, Annex 82,Vol. 5.See also the Special issue thescientific
, journal published by the Ministry of Cuand Artof Ubaine, Parniarb UkraiinyIstoriia i kulrura,
212002,YearXXXII,Issue2 (1271,Annex83,Vol. S.hydrobiology,microbiology, ichthyology, hydrology, hydrochemistry, marine geology, soiI
science,ornithology, archaeology, astronomy,etc.95.
7.80 On 10 January 2003, the Odesa Regional Council established the Regional Utility
Company "Ostrivne" as the sole managing authority on Serpents'Islandg6. By a subsequent
Decree issued by the Chief Executive of the Odesa Regional State Administration on
29 August 2003, any visit to the island and its facilities was restricted for environmental
reasons and for the protection of the island's cultural heritage and was made subject to
Ostrivne's prjor authorisation".
7.81 In the Spring of 2902, Ukraine decided to withdraw its anti-aircraft defences from
Serpents'Islandps.It is surprising to see Romania complaining about this(especially only on
the basis of a newspaper report)", since such a step in the reduction of the military facilities
on Serpents' Island was carried out in pursuance of the 1997 Exchange of Letters and
represented evidence of improving relations between Ukraine and Romania which made the
continuation of such military facilities no longer appropriate. The reduction of military
facilitiesand their replacement by civilian facilitiesis a developmentto be welcomed, rather
than criticised.
7.82 The property of the military stations located on Serpents'Islandwas transferred from
the Ministry of Defence to the managementof the Odesa State Administration byDirection of
the Cabinet of Ministersof Ukraine of 30 May 2002 (No. 277-r)'OO O.n 20 August 2002, in
accordance with Order No, 61 of 13 July 1994of the Head of the StateBorder Committee of
95
See "Analytical Brief on tImplementationof the Comprehensive Program for FurtherDevelopment
of theInfrastructurand Conduct of Economic Activitieon Zmiinyi Island and on theContinental
Shelf',Annex 84,Vol. 5.See alsothe lists of the isIafauna, flora and fispecies reproducedat
Annex85, Vol. 5. The study andresearch oSerpents'Island'ecosystemand the biologicalresource
conditionsnearthe islandIs an on-going activity,carried out undersupervisionof the Ministrof
EducationandSciences, see thereportattachedatAnnex 86,Vol.5.
96 ResolutionNo. l 1l-XXIV of 10 January 2003,Annex 87, Vol. 5. See also the company'Asrticles of
Association approved by the Odesa Regional State Administrationon 21 March 2003, Annex 88,
97 Vol. 5.
48 Decree of 29August 2003,No. 700lA-2003,Annex89, Vol. 5.
See "Plan for Withdrawing of the UkrainianArmedForces ElementsfromZrniinyi Island", approved
by theMinistryofDefence of Ukraine, E8May 2002, Annex90, Vol. 5.
'9 RM.para. 10.k1 1.
"' Annex 91, Vol.5.See, alsothe SubsequentDirections reproduced therein.Ukraine1'', a frontier observation post comprising 30 personnel was created on Serpents'
Island to guard the State borderof Ukraine.
7.83 With a Decree of 12 July 2004, the Odesa State Adrmnistsation approved a
programme of tourism developmenton Serpents'Island which identified the main types of
tourism which could be developed under the supervision of the company "Ostrivne" on the
island taking into account the vulnerability of its ecosystem'02.Also in 2004, the State of
Odesa authorizedthe designandconstruction ofa monumentto be erected on Serpents'Island
to commemoratethe sanctuaryofAchil1eslo3.
7.84 On 21 September 2094, the OdesaRegionalDivision of theNationaI Bank of Ukraine
approvedthe opening of a branch of the Ufuainian bank Avalon Serpents'1sland'OC 4.ontrary
to what Romania'sMemorial assertsi0', this has nothing to do with Romania'sapplication in
the present case on 16September 2004.Indeed, the openingof anew branch of a bankis not
something which is decided and implemented overnight, but something which follows a
longer period of consideration beginning many months before the eventual opening of the
new branch. In the present instance, the Board of Aval Bank decided to open a regional
branchon Serpents'Islandon 11May 2004, i.el .ong before Romania filed its application in
thiscado6. The opening of the new branch is testimony tothe growing needs of the people
living on Serpents'IsIand and was simply a natural continuation ofthe hnds of activities that
had taken place on the island previously. The photographs in the following pages show the
branch of Aval Bank, the stationaryberth and some of the residential accommodations built
for thepeople Iivingon Serpents'Island.
7.85 Romania's complaints at the continuing development of Serpents' IsIand after the
present proceedings werestarted are rnisplaced'07A. s shown in this Section, Serpents'Island
hasbeen fora long time a feature of considerable significance in the region, and for over a
centuryhas had a resident population.At first, these people were principallyassociated with
101 Annex92, Vol. 5.
,m iDecree of12July2004, No.535/a-2004,Annex81, ~a!:5.
103
104 !DecreeeNO.159aof 21September2004,AnnexV95,VaI.5.
'05 1 RM, para20.108.
:See Annex 95, VoI5.
RM, para10.1E3eEseq. .l<+&P"
,toF: The Stationary Berth on Serpents'Island - Dochmin rroeedures
,toG: The StationaryBertho DistantViewPhotoh: ResidentialAccommodationson Serpents'islandthe maintenance of the lighthouse, but as the record shows108t,heir numbers grew, and
military, scientific and frontier protection functions were added to those of navigational
safety.The growthin numberof those with direct functions on the island was accompaniedby
an increase in the number of support facilities and staff on the island which has steadily
grown over the past half century.
7.86 It is thus clearthat Serpents' Islandcannot be equated to a barren andunused rock
suddenly "occupied" by the creation of spurious and artificialhuman activity: itis an island
which has been the focus of economic, military and religious activity for many years.These
activities - which include safety of navigation, military protection, coastguard, frontier
protection, scientific research - are part of the legitimate sovereign activity of Ukraine, and
arise from a natural development of the island'slong established uses,
7.87 The introduction of a maritime transport link to the island in 2004'09,and the
possibility of establishing leisure facilities on the islandi1*,are also a natural. part of this
development. It represents behaviour by Ukraine which is neither being carried out in bad
faith, nor conduct amounting to an abuse of rights"', nor acquiescence by lkajne in
Romania's thesis thatSerpents'Island is only irock1I2.
7.88 Whenthe activitieshistorically carried outin relation to Serpents'Island are taken into
account alongwith the morerecent undertakings which havebeenrecounted in thisSection, it
is apparentthatSerpents'Island, despite itssmallsize, has for along timeplayed a significant
role in the history and life of thisarea and has done so continuously up to the present day.
This has involved continuoushuman presence and activity on the island since at least the
middle of the 19th century. The gm-strategic importance of Serpents'Island and the region as
a whole is also acknowledged by R~rnania"~.It would fly in the face of the historicaland
current record ifSerpents'Island were to be treated as no more than aninsignificant speck lost
in the vastness of theBlackSea.
108 Seeabovein thisSection,and also Secti2nabove.
Letter fromOstrivne Odesa OblastMunicipal Enterprise toOleksandrMykhaylovych Wordiyenko,
Chlef of the Main Deparrment of Economy, Oblast State Administrationdated 5 March 2005
concerningtransportommunications withZmiinyiIsland, Annex96,Vol. 5,
Decree of Approval ofthe Program of Tourism Development atZmiinyi Island Up to2006 dated
12JuIy 2004,Annex81, Vol. 5.
'l' RM,paras.10.119-10.125.
]l2 Ibid.,paras.10.126-10.131.
Ibid., paras. 3.4, 3.15,3.25,3.31.Section 4. The Course of the ProvisionalEquidistance Line
7.89 In the light of the foregoing Qscussion, which has shown that the provisional
equidistance lineshould be strictly calculated using the nearest basepoints onthe baselines of
the Parties from which the breadth of their temitorial seas is measured, and that Serpents'
Island provides relevantbasepoints in thisrespect, it is possible to trace the course of the
provisionalequidistance line.
7.90 The relevant basepointsfor establishingthe provisionalequidistance line are located at
the feIEowingpoints:
pn theUkrainianside:
Q Serpents'Island
8 CapeKhersones
On the Romanianside:
'3 The end of theSulinaDyke
B The southwestern end of the SacalinPeninsula.
7.91 Figure 7-1 shows the basepoints so identifiedwhich control the course of the
provisional equidistance line, andtheprovisional equidistance line itself. Acan be seen, the
line descends from the starting point for the delimitation identified in the 2003 Treaty
(labelled "Point A" on the Figure) in a southerly direction, controlled by basepoints on
Serpents'Islandon the Ukrainian side and SulinaDyke on the Romanian side, untila turning
point ("PointB "1where thebasepoints on SacalinPeninsulaon the Romanian coastcome into
effect. The line then continues in a southeasterly directionuntil a turning point ("Point C")
representing the point where the basepoints on Cape Khersones on the Ukrainian coast
become relevant. The end-point of the provisional equidistance line lies at rough1y the
location wherethe interests of third States maycome intoplay.
7.92 Figure 7-1 thus depicts the result that obtains from the first step in the delimitation
process.The next step in the exerciseis to identify the relevant circumstances characterizing l '
ProvisionalEquidistanceLinethe areawhichmayjustify amocZlficationof the provisional equidrstance line. This subject is
takenupin the next chapter. -201 -
CHAPTER 8
THERELEVANT CIRCUMSTANCES
Section 1. The GeographicalFactors
A. Introduction
S.1 Geography,and more particular1 y coastal geography,has always played an important
role in the drawing of international maritime boundaries, either through delimitation
negotiations or through adjudication. Very often, ithas even been considered as the sole
factor tobe referred to for the drawingof the delimitation line. Significantly, on numerous
occasions in its 1977 decision, the Anglo-French Court of Arbitration made use of the
wording "thegeographical and otherrelevantci.rcumstancestl'.
8.2 Surprising1y, Romania's treatment of geography is rather succinct. However, in its
lengthy commentaries concerning the various "principles" enumerated in sub-paragraphs (a)
to (e) of paragraph4 of the 1997 Exchange of Letters, Romania rightly summarizes the
jurisprudence of the Court and other international tribunals relating to the taking into
considerationof the relevant circumstancesin maritimedelimitation cases.It states:
"Of the factors whichhave been considered to be relevant, the primaryone is the
geophysical situation of the area to be delimited, i.ei.ts configuration. This
includes the projection of the relevant coasts, and the connected principle that,
where possible, zones should be delimited so as to avoid any cut-off, aswell as
the eventual disproportion between the relevantcoastal lengths or thepresence of
islands, isletor rocks inthe delimitationareati2.
l 8.3 Unfortunately, in the Memorial, Romania does not substantially comply with those
requirements. The Memorial does not really consider the different characteristics of the
l
geographical situationin the maritimearea subject to thepresent delimitation proceedings.
l Case concerning rheDelimirarioof theContinentalShelfbetween she UnisedKingdom of Grecrr
Brilainand Northern Irefrand,and the French RepublDecision of30 June 1977, U.N.R.I.A.A.,
Vol.XYIII,pp.45,paras. 69-70, 112,pa239, and117,para.251.
2 RM, para.8.85. 8.4 Assuming that, in that area, 'Serpents'Island apart - no major circurristancecould
pose problems", Romania iscontent with the assertion according to which the geographical
context is "a simple onew3B . esides,that position isthen purely and simply reasserted when
Romania presents its claimed maritime delimitation line. It just says that no relevant
circumstance is "to be con~idered"~or "di~cernible"~in the two sectors which have been
artificiallydefined6.
8.5 But nowhere in the Memorial is itpossible to find any explanation of the so-called
"simplicity" of the geographical situation. Nowhere is there the smallest detailed description
of the coastal geography in the relevant area. That is probably why, fully aware of the
necessity at least to pay lip servicero the identificationof some circumstance characterizing
the area,Romania has added, in two distinctfootnotes, the same broad reference to "[tlhe
general circumstance represented by the geographicalconfiguration of the Black Sea"
without further particulars, and the same cross-reference to what is said elsewhere in the
Memorial concerning either the delimitation agreements involving third States, or the
enclosed nature of theBlack Sea'.
8.6 With respect to the Iatterreference,it must be underlined once more that theenclosed
character of the Black Sea is not by itself a circumstance which ought to be regarded as
relevant for delimitation purposes, as has been previously indicateds. The fact that,under
Article 122 of the 1982Law ofthe Sea Convention, the Black Sea qualifies as an "enclosed
or semi-enclosedseat'has no bearing at all on the methodofdelimitation to be appIied in the
present proceedings.
8.7 As for the existing or potential deIimitations with or between third States in the
western region of the Black Sea, whatever their relevancemight be, they do not constitute a
geographicalfactorproperlyspeaking,and arethereforeexaminedseparatelyg.
1 RM, para.1.10.
1 RM, para.11.73.
5 ' RM, para.11.84.
6 On theartificicharacterof the Romaniantwo-sector division, see C4,psection2, above.
7 Rh4,fot?tnote386,atp.32 829,tf.2.9.
8 Seeabove Chapter4,section3,paras. 4.33-4.50.
9 Seesection3 ofthisChapterbelowdealing witthepresenceof thirSratesintheregion.8.8 In this Section, the purpose of Ukraineconsists in presenting the actual picturof the
geographicalconfiguration in the northwesternpart of the Black Sea. As amatter of fact, it is
essential to start witthat picture because, according to the Court'sJudgment of 10October
2002, "[tlhe geographicaIconfiguration of themaritime areasthat the Court is calleupon ro
delimit is a given...not an element open to modification ...but a fact on the basis of which
the Court must effect the delimitation..."".And, in that Judgment, the Court has insisted on
the ideathat
"AIthough certain geographical peculiaritiesof maritime areas to be delimited
may be taken into account by the Court, this is solely as relevant circumstances,
forthe purpose, if necessary, of adjusting orshifting the provisional delimitation
line"".
8.9 Ukraine will thus recordthe different aspectsof the geographical situationwhichmay
be dsemed relevant for the drawing of an equitable maritime boundary dividing the
continental shelfand exclusive economic zones of Ukraine and Romania in that area. Itmust
however be understood that the geographical situation isnot restrictedto the various aspects
of thephysical geography,but possibly includes also someelement of poljtical geography.
B. The Physical GeographicalFrameworkof the Area
8.10 From a mere glance at a map of the western part of the Black Sea, three main
observations may be made concerning the geographical framework of the northern half of
that region, where the present delimitationis totake place. Those observations, based on the
coastal configuration and coastal relationship, relate successivelto theshape of therelevant
maritime area, the geographical predominance of Ukraine in the area, and the disparity
between coastal lengths.
(i) The Shape ofthe RelevantMaritimeArea
8.Il The coastal configuration, from the land-border terminus between Bulgaria and
Romania to the southern tip of the Crimean Peninsula (CapeSsrrych),appears asformina g
10
Land and Mantime Boundary between Cameruott and Nigeria (Cameraon v.Nigeria: Equatorial
11 Guineaintervening), Judgment,J. Report2002,pp.443-445,pasa.295.
Ibid .p,. 445, broad concavity. Itisthe mostevidentgeographical characteristic of thecoastlinkfronting the
relevant area. It gives to the entire maritime area the strongly masked fearure of a gulf,
bordered on three sidesby land, as illustrated on Figure 8-1 showing the general direction of
the coastsborderingthat gulf-likearea.
8.12 That particuIarcoastalconfigurationis a major geographical factor, since it leads to a
situation where the relevant mainland coasts of the Parties areboth adjacent and opposite to
each other, a situation which is always of great significance for the drawing of a maritime
boundary. It introduces in this case an element which, to some extent, isreminiscent of the
geographical situation prevailing in the case concerning Delimitation ofthe Maririme
Boundar)l in rheGulfofMaine Area.
8.13 Moreover, within that kind of gulf, a few geographical features stand out slightly in
relief from the general direction of the different coastal segments, and may technically be
used as basepoints for the drawing of a provisional equidistance line, asit has already been
previous!y demonstrated''. They are, successively clockwise, the SacalinPeninsula standing
out against the Romanian main coast, Zmiinyi or Serpents' Island lying off the Ukrainian
western mainland coast, Cape Tarkhankut and Cape Khersones constituting two
protuberancesof Crimea'swestern coast.
8.14 What is calIed Sacalin Peninsula on the northern part of the Romanian coast isnot
really a promontory,properly speaking. It is rather anuninhabited narrowsand spit extending
southwesterly from the main coast, andlooking like a stripof landrunning into thesea over
I
several miles13.It is noteworthy that Romania's Memorial does not include a detaiIed
description of that "peninsula", which however is given a significant importance in the
1 .
constructionof the delimitation line claimed byRon~ania'~.
! 8.15 The position of Serpents'Island, in front of Ukraine'smainland coast on the wesrern
side of the gulf-shaped relevant area, needs some clarification, since Romania has been
constantlytempted to put somesmoke-screenon that important aspect. Situated at 19nautical
12
13 SeeChapter 7section3above.
14 See para3.50above.
SeeRM,Figure 32 atp.228. BLA CK SEA
10 50 1lhDB
The General Directions of
:s,milo~
thleCoastsof Uhahe
aadRsmsumiamiles due east from Ukraine'smainlandcoast1',Serpents'Island islocated sufficiently close
to that coast, so that the territorial sea around the islandis not distinct,or separafrom the
tenitorial sea beltoffthe mainland coast. Thus, Serpents'Island, even ifnot fully integrated
to the Ukrainian coastal front properly speaking, does not however appear as an isolated
island1'.On the contrary,Serpents' Island,as a coastal isIand, forms an integral part of the
Ukrainian maritime ensemble in the western side of the relevantarea.
8.16 From another point of view it is also noteworthy that, while it is situated in the
vicinity of Ukraine's land boundary with Romania in one of the ams of the Danube Delta,
Serpents'Island is entirelyand exclusively in front of the Ukrainiancoast, i.e. COthe north of
the coastal terminus of the mainland frontier. It is therefore largely inaccurate to say, as
Romania does, that i"is a maritime feature bordering the adjacent Romanian and Ukrainian
shores in the vicinity of theDanube delta"", because such a statement could give the false
impression that the island is directly oppositeto the end point of the land boundary between
the two States. Infact,Serpents' Island isan islandadjacent to Ukraine'smainland coast,and
facing only that coast. Its location illustratein Figure 8-2.
8.17 On the coast of Crimea abutting on the relevant area, Cape Tarkhankut and Cape
Khersones are two significant prominences flanking Kalamits'ka Gulf. The first one in
particularis undeniablythe most salientprojectionof the Ukrainian coast in thewhole area.
8.18 Those different features are pure facts of geography which can only be taken as they
are. Each of them cannot a priori be regarded as a geographical "anomaly"or "distortion"
which ought to be ignored, unless to refashion natureor geography. Their significancecan
only be assessed by reference to the relevant area taken as a whole. In other words, the
appraisal of any geographical feature is always a relative question, since the apparent
unimportant character of one feature may well be counterbalanced by the greater impact of
anotherfeature.
14 See para3.31above
16 This is expresslyrecognized by Romaniawhenit spesf "theclose proximityof SerpenIslanto
17 RM, para. 2.9.stofRomaniaand Ukraine".RM, para. 11.49.8.19 Such an approach was pointed out by the Tribunal in the 1977 Anglo-French
Arbitration onthe Delimitati oofne ContinentalShev
"The appreciation of the effect of individual geographicalfeatureson the course
of an equidistance line has necessarily to be made by reference to the actual
geographicalconditions of the particular area of continental shelf to be delimited
and tothe actual relationof the twocoasts tothat particular areat"_.
(ii) The GeographicalPredominanceof Ukraine in the Area
8.20 Within that arealooking like a gulf, the geographical predominance of Ukraine is
obvious, and does not need to be demonstrated at length. The Ukrainian geographical
predominance isoverwhelming not onlyin the various coastal regionsbordering the gulf, but
also and especially in the maritime areasencompassedby thosecoasts.
8.21 In fact, the seaward extension ofthe various Ukrainiancoastal segments creates three
distinctbut canvergng coastal projections,as clearly illustratedon Figure 8-3 showing the
convergent seawardextensions ofUkrainiancoastal fronts:
(a) the coastal segmentfrom the border with Romaniaup to a point located near
Odesa projects in a south-eastem direction;
(b) the south-facing coastal segment situated in the northern part of the gulf
' projectsmainly in a southern-south-western direction;
(c) the coastal segment along the west-facing coast of the Crimean Peninsula
projectsin a western-south-western direction.
8.22 In contrast, the Romanian coast only projects in one direction - essentially south-
eastwards, as shown on Figure 8-4, and its seaward extension therefore appears as being
spatially less important than thatof Ukraine. Saying that isnot at allan attempt to deny the
sightsof Romaniaaver the maritimeareas lying off its coast.It simplyimpliesthat the taking
into consideration of the particular geographical configuration,which inevitablyleads to a
l8
U.N.R.I.A.A.,Vol.XVZIIp.112,para.240.ProjectionofUkraine'sCoastalFronts ...
...
B 1!
,.Projection ofRomania's CoastalFront
;:,2..3$,p&";*;'h& j+g<; ;:?g$g>~;$$~?~:k$~
w:l;jyj,;r!g$.. . ....-- -. -- .;l
;s&g.;&2&7R<,K&'+ ;:.Td@;i?i&,2 :LP:v,:~, -ip, . . .
d;,..Yigure 8-4massive projection of the Ukrainian coasts in the relevant area, is necessary'to reach the
equitable solution required by the law.
8.23 In thatrespect, the often-quotedformula used by the Court in 1969 must be quoted
here again:
"Equity does not necessarilyimply equality.There can never be any question of
completely refashioning nature, and equity does not require thata State without
accessto the sea should be allotted an area of continental shelf, any more than
there could be a question of renderingthe situation of a State with an extensive
coastline similar to that of a State with a restricted coastline. Equality is to be
reckoned within the same plane ..."".
8.24 Romania has tried tofly in the face of factsin an attempt to reduce substantially the
geographical presence of Ukraine's territory around the gulf-shaped area. Refashioning
entirely the geography of the area, the Romaniandefinition of the relevant coasts leads to
eliminating entirely the Ukrainian coast situated at the bottom of the gulp. That elimination
is done on the basis of the misleading pretension that "the maritime area situated to the north
of thePoint S - Cape Tarkhankut line isanalogous toan interior Ukrainianbayw2'.
8.25 In the Gulf of Mainecase, a tentative distinction between "primary" and "secondary"
coasts was made by the United States, the former being presented as of greater importance
than the latter forthe purpose of maritime delimitation.The United States submitted that the
Canadiansouthwestern coastof Nova Scotia, between Brier Island and Cape Sable, opposite
to the U.S. coast of Massachusetts, ought to be considered as a "secondary"coastal front of
the Gulf of Maine, since it appeared as being perpendicular to the general direction of the
North-Americancontinental coasts, while the U.S. coast of Maine, situated at the bottom of
the Gulf, was regarded as forming a "primary" coastal front. But the Chamber of the Court
rejected that distinction. Itconsidered that "[tlhe very legitimacy of such a distinction ...
[was] very because "geographical facts arenot in themselves either primary or
secondary:the distinction in question is the expression,not of any inherent propertyof the
facts of nature, but of a human value judgment, which will necessarily be subjective and
19
20 NorthSea CotziinentalShelf;J~tdgme!.C.J.Reporls1969,pp.49-50 p,ara. 91.
21 Seeparas.3.12-3,13above.
22 RM, para.9.21.
Delimitation ofthMaririme Boundary inthe Gulf ofMaine Area, Judgment, IC.J. Reports1984,
p.271, para36. which may varyon the basis of the same facts, depending on the perspectives and ends in
viewtfu.And,in this respect, the Chamberof the Court recalled that "the facts of geography
are not the product of human action amenableto positive or negativejudgment, but the result
of naturalphenomena,so that they can onlybe taken as they are"24.
8.26 In the present case, the argument adopted by Romania is even more extreme.
Romania does not limit itselftoconsidering that a large stretch of the Ukrainiancoast would
be "secondary" for delimitation purposes. It simply contends that,for the purpose of the
present delimitation, there isno Ukrainian coast at all beyond an imaginary line artificially
drawn between two points arbitrarily selected2'.It is lfficult to be more distant from the
geographical reality!
8.27 Under the Romanian approach of the coastal configuration, the present delimitation
would be one takingplace in a maritime area situated off two adjacent mainland coasts: in the
south, the entire Romanian coast comprised between the respective terminus of the land
boundaries with Ukraine and Bulgaria; and in the north, the short continental coast of an
hypothetical Ukrainian State deprived af the major part of its land territory. Within that
maritimearea there would be two offshore islands: a small one in the vicinity of those coasts,
named Serpents'IsIand; and a larger one at a greater distance, the name of which would be
''CrimeaIsland". That extraordinary approach is illustrated on Figure 8-5, which is not a
caricature of Romania'spresentation, but simply an illustration of the actual result which
could be reached through the Romanian approach. That figure clearly demonstrates, better
than any long development, the erroneous and falsc presentation of geographical facts by
Romania.
j Ibld.
I 2.4 I Ibid., 271,para.37.
; SeeRM, para.9.21 andFigure l1atp.137.
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3 (iii) TheDisparityBetween Coastal Lengths
8.28 The geographical predominance of Ukraine finds also an expression in terms of
coastal length. As is made perfectly clear on Figure 8-6 showing the general direction of the
coasts bordering the gulf, there isa very significant disparity in the lengthsof Ukraine's and
Romania's relevant coasts measured according to their general direction. The Ukrainian
relevant coastlineis more than four timeslongerthan the coast of Romaniaz6.
8.29 What is here "a given" of the coastal relationship consists in a geographical situation
of fundamenfa1inequality between the two neighbouring States in terms of length of their
respective coastal fronts abutting on the relevant area. From that point of view, thesituation
in this caseto some extent is reminiscent of the LibyaJMaEtacase, where "the existence of a
verymarked differencein coastal lengthsHz7 ascertained by the Court was considered by three
Judges, in a joint opinion, as "a striking physical fact which is a particularly 'relevant
circumstan~e"'~~ N.o doubt that the existing disparity between Ukraine and Romania with
respect to the Iengthsof coasts mightbe appraised in the same manner.
8.30 From the North Sea Continental Shelf cases onwards, the dissimilarity between
coastal lengths - should the occasion arise - has been a factor the relevance of which has
been constantly affirmed in the jurisprudence. When States have not been given "broadly
equal treatment by nature"2g,i.e. w,hen their respective coasts are not "comparable in
lengthv3o 'r are not "in a relation of approximateequaIityH31a ,s is precisely the situation in
thiscase, thisis obviouslyaparticularlyrelevant factor.
8.3 1 Thus, the Court stated in its Judgment delivered inthe JarsMayen case r
"There are .,.situations ...in which the relationship between the length of the
relevant coasts and the maritime areas generated by them by appIication of the
26 For the measurements ofthetwo relevant coastand a comparison betweenthe respectivcoastal
lengths,seeabove Chapte3,paras3.17-3.20.
27 ContinentaShelf(Libyan ArabJamnhiriydMalraJ,JucdgmentI,.C.Reports1985, p.49,para66.
2s Separateopinion of Judges Ruda,Bedjaoui and Jimenez deArkchag aC.J.Reports 1985, p. 85
para.25.
29 &rth SeaContinentalShelfJudgment, I.CJ. Reports 196p. 50pma.91.
30 Ibid.
31 Decisionof30 June 1977 of the Anglo-French Court of Arbitration, U.N.R,l.A.A.,Vol. XV88,, p.
para.181. equidistance method, is so disproportionate that it has been found'necess tary
take thiscircumstanceinto accountin order to ensure an equitablesolution. The
frequent references in the case-law to the idea of proportionality - or
disproportion - confirm the importance of the proposition that an equitable
delimitation must, in such circumstances, take into account the disparity between
the respective coastal lengths ofthe relevant area"32.
8.32 When emphasizing the actual disparity in the coastal relationship, Ukraine is not
claimingthe application of a so-called "principle of proportionality", not only because itis
beyond all question that "it is disproportion rather than any general principIe of
proportionality which is the relevant criterion or factor"33,but also because ptoportionality is
relevant to the testing of the equitableness of the delimitation line rather than its construction.
But it isa veryimportant:relevantcircumstance to be taken into account. As the Court said in
the LibyalMaltacase:
"It is...one thing to employ proportionality calculations to check a result; itis
another thing to take note, in the course of the delimitation process, of the
existence of a very masked difference in coastal lengths, and to attribute the
appropriate significance to that coastal relationship, without seeking to define itin
quantitative terms which are only suited to the ex post assessmentof relationships
of coast to area.The two operationsare neither mutual1yexclusive, nor so closely
identified with each other that the one would necessarily render the other
supererogatory. Consideration of the comparability or otherwise of the coastal
lengths is a part of theprocess of determining an equitable boundary on the basis
of an initial median line; the test ofa reasonable degree of proportionality, on the
other hand, is one which can be applied to check the equitableness of any line,
whatever the method used to arriveatthat line"34.
8.33 Of course, Ukraine is we11aware of the observation made by the Chamber of the
Court in the Gulf of Maine case, where the parties were also seehng a single maritime
boundary for the continental shelf and their exclusive fishery zones:
"a maritime delimitation can ...not be established by a directdivision of the area
in dispute proportional to the respective lengths of the coasts belonging to the
parties in the relevantarea,butit is equallycertain that a substantialdisproportion
to the lengths of those coasts that resulted from.a delimitation effected on a
"
' MaritimeDelimitation in tAwn betweenGreenlandand JanMnyen, Judgment, LC-I.Reports 1993,
33 p. 67,para65.
Accordingto the 1977Decisionof theAnglo-French Courtof Arbitration,U.N.R.I.A.A.,Vol. XVIII,
34 p.58,para.101.
ContinentaIShelJrLibynArab JalamahiriydMa!ia,udgment,I.C.J.Reports1985,p.49,para.66.BLA CK SEA
ThePadiesvCoasitalFronts
in theNortWest BlackSea different basis would constitute a circumstance calling for an' appropriate
~orrection''~~.
8.34 But,when quoting the GttEfof Maine Judgment, itis alsonoteworthy that the disparity
in coastal Iengths betweenthe United States and Canada in that case was not asimportant as
in the present case. In fact, according to the Chamber of the Court, the total length of the
United States'coastlines in the Gulf of Maine was approximately 284 nautical miles, while
the overall length of the Canadian coastline was approximately 206 nautical miles. Thus the
ratio between the respective coastal frontson theGulf of Maine was considered asbeing 1.38
to 1.However, itwas regarded as an important circumstance by the Chamber of the Court,
leading to a correctionof the provisional median line: "theratio tobe applied for the purposes
of determining the location of the corrected median line [was] approximately 1.32 to 1 in
place of 1.38to
C. The RelevantFactorsofPoliticalGeography
8.35 The position of the terminus of the land boundary, that is the intersection of the
frontier with the coast, may have sometimes operated as "a circumstance of considerable
relevance"37in other maritime delimitation proceedings. But, in the present case, it is an
element of no relevance for the drawing of the maritime boundary, It is mentioned however
because of it being creative of the Ukrainian geographical predominance previously
recorded3'.
8.36 On the contrary, the terminal point of the boundary separating the Ukrainian and
Romanian territorialwaters, as opposed to the terminal point on the land boundary, is high1y
relevant for the determination of the course of the maritime delimitation line beyond the
territorial seas. That terminal point has been agreed between the two States in Article 1of the
2003Treaty on the Ukrainian-RomanianState Border RegimeI9.Defined by its geographical
coordinates as being "the point of 45'05'21"north latitudeand 30°02'27"east longitude'"this
is the starting pointof the single maritime boundary dividing the continental shelf and the
3s Delimitation otheMaritime Boundmryin the Gulf of Maine Area, Judgment,],CJ. Reports 1984,
p. 323para.185.
36 Ibid.p. 337para.222.
37 ConrinenralShelf(Tunisia4, AiaybJnrnahiriya),Judgment, I.C.J.Repo1982, p.65,para.82.
38
39 Seepara.5.20above.
See Chapter5,section 5,sub-sectiC,above. exclusiveeconomiczones of Ukraine and Romaniain the Black Sea that will be decided by
the Court.
8.37 That view is shared by Romania. In the Memorial, Romania has called that point
"PointF", and it has expressly stated that "PointF, as the point where the outer limits of the
territorial seasappertaining toRomaniaandUkraineintersect, constitutes the starting point of
the delimitation linem4'F.or its part, Uk,raineprefers to havethat point named "Point At',as
previouslyindicated4' since the Parties agree that thatisthe starting point of the delimitation
tobe effected by the Court.
8.38 Since the Parties are in full agreement on that point, it is not necessary to add any
further developmentsdealing withgeographical factors, and jt is approprjate now toexamine
whether there are other circumstanceswhich may be regarded asrelevant. This will be done
inthe two following sections, first through an examination of the conduct of the Parties as
revealed by State activities in the area,and second by assessing the incidence of existing
delimitation agreements betweenthird States in the Black Sea,
Section2.
StateActivities in the Relevant Area
8.39 Whereas Ukraine has consistentlycarried out andlor licensed sovereignandeconomic
activities ithe relevant area,Romania has not. To the contrary, in authorising State activities
in its continental shelfEEZ, Romaniahasrespected a line located well to the south and west
of its clailine asrepresenting the limit of icontinental shelfEEZ.
8.40 As will be illustrated in this Section, the mutual conduct of both Ukraine and
Romania support Ukraine's position regarding the location of the continental shelf/EEZ
boundary. It is relevant to emphasize in this respect that the Parties'conduct concerns the
exercise of sovereign activities (e.g.,in respect of the licensing of hydrocarbonexploration
and exploitation) as well as obligations assumed by the respective Stares, notably regarding
activities of theStaceborder guardin policing fishingareas.
40
41 RM, para.9.3.
1 Seepara.7.91above.8.41 In Ukraine's submission, these State activities cannot be ignored, and constitute a
relevant circumstance which operates in favour of the continental shelfEEZ claim line
proposedbyUkraine.
8.42 Ukraine will firstreview the Parties'activities in respectthe licensing of oiand gas
exploration and exploitationin the relevantarea (Section A), before turning to the activities
of the State border guird inrelation to illegalfishing (SectB).
A.
Licences Grantedfor the Exploration and Exploitation of Oil and Gas in
the RelevantArea
8.43 Ukraine has licensedactivities reIating tothe exploration and exploitation of oil and
gas deposits in its continentshelf in the north-westpartof theBlack Sea since shortly after
its independence from the SovietUnion.
8.44 In 1993, a Licence Agreement was concluded by the Ukrainian State Committee on
Geology and the Utilizationof Mineral Resources, on the one hand, and the Crimean
Petroleum Company (a Joint Venture between the Crimean State Property Fund and
J.P.Kenn yExploration and Production Ltd.Id2,on the other43.
8.45 The licence area covered by the Licence Agreement entered into with the Crimean
Petroleum Compnn y isthatdefined by the co-ordinates:44°30'00" N, 31'30'00"E (Point A);
44"30'00n N, 30°00'00" E (Point B); 45°00'00" N, 31°00'00" E (Point C); and 45"00'00" N,
3 l030'00"E (Point D).
8.46 This licence area,known as the Delphin block,is depicted on Figure 8.744 .S can be
seen, this arelieswell within thecontinental shelfarea claimedby Ukraine.
42
J.P.Kenny ExplorationandProductionLimitedassubsidiaryof JKXOi& Gasplc,a U.K.-registered
43 company listedontheLondon StockExchange.
44 Annex 97, Vol5.
Note thathe adjacenareatothewest (the "AlternArea") wastobegrantedto CPC intheevent of
the boundaryissuebeinresolveinUkraine'sfavour.8.47 In 1995, Crimean Petroleum Company drilled one exploration well in accordance
withits commitmentsunder theLicenceAgr~ernent~~.
8.48 On 12 October 2001, the Ukrainian company Chornomomaftogaz was granted a 5-
yearpermit by theMinistry of Ecology andNatural Resourcesof Ukrain for the exploration
and exploitation of oiland gas depositssituatedin the Olympiiskablock, definedby the co-
ordinates: 44"41'5 N5" 30"17'53" E; 44'45'45" N, 30°17'04"E; 44°47'10"N, 31°29'21"E;
44O43'22" N, 31°30'1 1" E46.
8.49 Olympiiskablock isdepicted on Figure 8-7:itis located close to the limit of, bstill
within, the areaof continental shelflEEZclaimed by Ukraine.
8.50 In 2001-2002, two exploratorywells were drilled inthe Olympiiska block4'.
8.51 On 12August2003, Chornomornaftogaz was granted by theMinistry of Ecology and
Natural Resources of Ukraine a permit for the exploration and exploitation ofoil and gas
deposits in the Gubkina block, defined by the following co-ordinates: 45O05'30" N,
30h09'14" E; 45"09'40"N, 30°52'00" E; 45O05'00" N, 30°52'40" E; 4$"01'30" N,
30°09'30" E48.
8.52 The Gubkina block is depictedon Figure 8-7. The block straddles the southern Iimit
of the territoriasea of Serpents' Island,but otherwise islocated in Ukraine's continental
skelfEEZ.
45 rAs stateontheJKXwebsite.
46 1A copy of thlicence, wiEnglish translatioat~nnex98, Vol.5.
47 Itshouldbe noted thatChornomomaftogazhad beendirectby theUkrainian Governmenthat iwas
not authoristo carry out any exploitation(asoptoexploration)activitin thareasinrespect
of which RomaniadisputedUkraine'sentitlementpending settlement of themaritimeboundarydispute
withRomania.
48 A copy ofthelicencewith EnglistranslationatAnnex99, Vol.5.ReRevam UthaindanandRomsaisn Licearrce,~
in ReHatioro tblePnstiescCBaiLines .8.53 Thus, activities, particularly relatto the exploration of oil and gas structures,have
consistently been carried out under licence from the Ukrainian State authorities in zones
falling within the areaf the continental shelf/EEZclaimed by Ukrainein thiscase.
8.54 In contrast, Romania has, in awarding oiland gas exploration permits in the north-
west part of the Black Sea, respected a line which is entirely inconsistent with the
exaggeratedclaim line whichit has set out in its Mernorjal.
8.55 The first Romanian offshorewell was apparently drilled by Petromar, asubsidiary of
the State entity Petrom, in August 1976 and named Ovidiu-l. Its location, within Block XV
(Midia), is depicted on the Petroconsultants map reproduced at Figure 8-849 .his well was
eventually abandoned, but a discovery was made inthe Lebada (Swan) Est fieId which was
spudded in June 1978 and completed in January 1980. LebadaEst was brought onstream in
19&750.
8.56 After the collapse of the Ceaucescu regime in 1989, exploratory activity in the
offshore region declined, and efforts were made to attract foreign investment. In 1992, a
British company,EnterpriseOil, signed productionsharing contractsfor Block XIXI(Pelican)
and Block XV (Midia).The location of these blocks aredepicted on the Petroconsultants map
at Figure 8-8.Drilling was apparently commencedby Enterprise Oil and its partners in 1994.
Further dnlling took place in areas east of Lebada Est in August 1995 and in Block XV in
1997".
8.57 For the purposes of the present dispute,however, it isimportant to emphasise that the
eastern limit of Romania'sBlocks XI1 (Pelican) andXV (Mdia), as well as the intervening
block (Istriaand that lying tothe south (Neptune) which are depicted on the Petroconsultants
map reproduced at Figure 8-8, bear absolutely no relation to the outer limit of Romania's
49
See also Jeremy Benton,ExplorationHi.rtoryofihe Black Sea Provitace,in RegionPetroleum
Geology ofthe Black Sea and Surroundin Region, Edited byA.G. Robinson, The American
Associationof Petroleum Geologists,1997,at p. 8. A copy of this chapter, with an earlier
Petroconsultants map(entitlBlack Sea Province Expioratiort StatAugust 1997) which was
enclosedinthepublication,is atAnnex100,Vol.5.
50 Ibid.
5E Ibid.pp.8-9.contjnentalshelfEEZ as presently claimed. Although the limitdoes not acknowledgethe full
extent of Ukraine'scontinental shelflEEZ,it is clearly relevant asevidence that Romaniahas
previouslyregarded a significant part of an area that it now claims as properlybelonging to
Ukraine52 T.hisisclearlydemonstrated onthe sketch map atFigure 8-7.
B. StateActivities in Respectof Fishing Practicesin the RelevantArea
8.58 The EEZfcontinental shelf boundary claimed by Ukraine furthennore corresponds
generally tothe limit of the Parties'exclusivefishing zonesasrespectedby bothRomaniaand
Ukrainein their administration of fishingin thenorth-westpart of theBlack Sea.
8.59 . This is evidenced particularly by the fact that it is Ukraine and not Romania which
has been active in policing that part of the area in respectof illegaI fishing canied out by
fishermen from third States, notablyBulgariaand Turkey.
8.60 Althoughthe Ukrainian ExcIusive(Marine)EconomicZoneAct of 16May 1995 does
not give coordinates for the limits of Ukraine'sExclusive Economic Zone5" it should be
recalled that in its diplomatic note to Romania dated 7 November 1995 the Ministry of
Foreign Affairsof Ukraine communicated the coordinates:4S005'5" 30"0I1O"E; 44"54'Q1'N,
30"06'01'E4 ;3"42'6'N,3.1°27'8 "E; 43"27'0"N,3 1'20'8 "E, and statedthat, pending the final
determination of the boundary between the two States'continental shelflEEZ, the boundary
line followed these co~rdinates~~. In other words, Ukraineat the time regarded only chose
areas lying south and west of these coordinates to be potentiallyin dispute between the
Parties. Areaslying to the north and east ofthe line were deemed unquestionably toappertain
to Ukraine.
8.61 Moreover, it iappropriate toemphasise thatthisUkrainian interim boundary line was
communicated to third States. For example, subsequent to several incidents of Bulgarian
fishermen being arrested for illegal fishing in Ukraine's EEZ, on 3 October 2002 the
52
Theco-ordinates othe Neptuneblock,along witha sketchmap of the areawerecommunicated to
53 UkrainebyRomaniain itnoteverbale dated2July2001,Annex 101,Vol. 5.
No. 162195-VR,copy at Annex 47,Vol.4. Article 2 providthat "thexclusive (marine) economic
zoneof Ukraineshall be comprised of maritime areas beyoand adjacent to tterritorial sea of
54 Ukraineincludingareas surroundiislandsbelongingtoUkraine[..l".
SeeAnnex 26,Vol.3.Bulgarian Embassy in Kyiv requested information regarding the competentfishing authorities
in Ukraine and as to the wording of relevant legal instrument^T ^h.e Ukrainian Ministryof
Foreign Affairs responded on 19November 2002 confirming that, until an agreement with
Romania was reached, thelimit of Ukraine'sEEZ was defined by the line that connectsthe
co-ordinates:45"05' 5 "30°01'00"E; 44"54'0"N, 30°06'0" E; and 43O42'6" N, 31'27'8"ES6.
8.62 Despite the fact that Romania responded through diplomatic channels to the effect
that it dinot accept the validityofthe Ukrainian interim boundary line, it iappropriate to
emphasize that ithas been Ukraine and not Romania which has been active in patrollingthe
area limited by the interim boundary line, and it has been the Ukrainian and not the
Romanian borderguard which has intercepted foreign fishingvessels caught fishingillegally
in those areas.
8.63 Furthermore, it irelevant to point out that noof the fishing boats intercepted by the
Ukrainian border guard in question was Romanian, which suggests that thearea in question
was properly regarded by the relevant Romanian authorities as fonning part of Ukraine's
EEZ, and in no instance did the offending Turkish or Bulgarian fishermen, or the
Governments of these two States,pleadin their defence thathe fishermen werein Romanian
waters.
8.64 A numberof these incidentsgave rise todiplomaticprotests on the part of Ukrainto
the Governments of Bulgaria and Turkey. A review of several individual incidents is
recounted in detail below.Forease of reference, the location of these incidents is depicted on
the sketch map atFigure 8-9.
(1) On 6 March 1997, the Ukrainian Ministry of Foreign Affairs sent note verbale
No. 15-9051015to the Government of Turkey, stating5':
"On ETFebruary this year in the exc1usive (maritime) economic zone of
Ukraine 30 miles to the south-east of Zmiinyiisland (44'55' N0°50E) and
on 18February 40 miles to the south-east of Zrniioyi island (44O38'N;
55
5-5 Nore verbalNo.UB-12-723,atAnnex 102,Vol.5
57 Note verbalNo.613123-400-I2l,atAnnex 103,Vol.5.
Annex 104, Vol. 5. 30°30'Ew )ere detected respectively 15 and 9 Turkish fishing schooners
engagedin the poaching catchof fish.
Referring to similar facts, which already took place in the recent past, the
Ministryof ForeignAffairs ofUkraine finds these actions of the Turkish Party
intolerable and considers them to be grave violatioof the Treaty between the
USSR and the Republic of Turkey on the Delimitation of the Continental
Shelf in the Black Sea of23June 1978and the Treaty between the USSR and
the Republicof Turkeyon the Establishmentof the Boundary of theEconomic
Zones of 23 December 1886 and of 16February 1987 legajly succeeded by
Ukraine and the Republic of Turkey (notes of the Ministry of Foreign Affairs
of Ukraine No DPUl43 of 19-01-94,No DPUl609 of 30-05-94, note of the
Republicof Turkey No VKDH-11-442 of 25-03-94)".
The Turkish Embassy responded on 12 March 1997 confirming that"[tlhe Turkish
authorities wiltake the necessary measuresto preventoccurrence of such acts [...lv5'.
(2) On 15 January 1998,the Ukrainian Ministry of Foreign Affairsissued a press release
regardingan incident that had taken placeearlier that day in which 17Turkish fishing
boats had been discovered fishingillegaIlyat 44"47'N;31"28tE59 .ne of the Turkish
fishing boatswas pursued and sank at44"32'N,31°10'E.Regrettably, a Turkish sailor
&ed in thisincident.
(3) On 7 February 2000, the Ukrainian Ministry of Foreign Affairs protested to the
Turkish Embassy about an illegal fishing incident thathadtaken place on 14 January
2000, when 19 Turkish fishing boats were intercepted at 44"40'N, 3 1°40'E,and one
that had taken place on 17January 2000, when 20 Turkish fishing boats were located
at 44"53'N 31"09'Em.
(4) A further incident occurred on 2 May 2002 38 nautical miles southeast of Serpents'
Island when a Turkish fishing boat was caught by the Ukrainian border guard fishing
illegally. This was notified to the Turkish Foreign Ministry by note verbale dated
31May 200Z6'.
S8
59 Annex 105,Vol.5.The dateonthenoteverbale(12March 1996)wouldappeartobe erroneous.
Annex 106,Vol. 5An officislatement waforwardedtotheTurkish Embassy inKyivon16January
60 1998:seeAnnex 107,Vol. 5.
61 Annex 108, Vol.5.
Annex 109,Vol. 5.(5) TheUkrainianMinistry of ForeignAffairscommunicated a furthernote verbaleto the
Turkish Embassyin Kyiv on SApril2003 regarding illegal fishing carried out by 4
Turkishfishingboats 50 miles southeastof Serpents'Islandh2.
8.65 As is demonstrated by these activities of the Ukrainian State border guard, Ukraine
has invested substantialexpense inmaintaining the exclusivity of itfishing zone,extending
up to the interim linewhich was communicated to Romania.Romania, tothe contrary, has to
Ukraine'sknowledge not only abstained from licensingits own fishermen in respect of this
area, but has been noticeably absent in failing to intercept fishing boats from third States
which have persistentlybeen fishing illegallyin this area. In Uksaine'ssubmission,this is a
further relevant factor thatsupportsthe boundary line proposed by Ukraine. In particular,it
clearlydemonstratesthatRomania has not considered that itpossesses sovereign rights inthis
area and has consciously abstained fromundertaking activities thatcharacterisethose that are
customarily undertakenby a Statein areas towhich it claims sovereignrights.
Section 3. Third StateDelimitationsin theBlackSea
A. TheRelevance of ThirdStateDelimitationsin the Black Sea
8.66 In the Iight of theprovisions ofTSNCLOSand the Court'sjurisprudence, Romania's
Memorialfundamentally misinterprets the relevance of the presenceof third Statesand third
Statedelimitations in theBlack Sea for purposesof thiscase.Thus Romania is plainly wrong
when it asserts that the delimitation method applicable as between Ukraine and Romania
must be basedon the "sametreatment" which other States have adoptedin theBlackSea,and
that otherwise "an eventual dramatic change of the method used for the delimitation of the
economic areas of Romania and Ukraine, as against the method used in allother delimitations
completed in the Black Sea, will lead to inequitable This aspect of the matter is
more fully dealt witin Chapter 4, Section 3.
8.67 Romaniais, however, correct when it pointsout that:
G2
63 Annex 110, Vol.5.
RM,para. 4,34. "The analysis of international case-law leads to the conclusion that;in cases of
enclosed seas, the actual or prospective delimitation agreements in the relevant area
constitute a relevant circumstancefor delimitation purp~ses"~.
8.68 It isclear that the presence of thirStates inthe vicinity ofthe area tobe delimited is
a relevant circumstance to be taken into account. However, the relevance of this factor has
nothing to do with the choice of the actuaI method of delimitation that will produce an
equitable result between the contesting States, but ratfier with how far that delimitation,
whatever method is adopted, can be extended without prejudicing theputative rights of third
States or trespassingonto areas that potentially appertainto third States.This is not a factor
that is limited to situations where there is an enclosed or semi-enclosed sea. Indeed, the
presence of third States isalways a circumstance to take inro account when such States are
situated in the general area being delimitebetween two other States whether thedelimitation
takes placein anenclosed sea ornot.
8.69 The point is clearly ilhstrated by the Court's approach in the Tunisia-Lic basa -a
delimitation which took place in the Mediterranean Sea, also an enclosedsea. The method, or
methods, of delimitation which the Court applied to the facts of thatparticular case were a
function of thegeographical relationship of the coasts of Tunisia and Libya and based on the
Parties'past conduct. Those methods had nothing to do with any method or methods which
third States in the Mediterranean (such as Italy, Greece, Spain or France) may have
previous1y adopted in their ownbilateral agreements.
8.70 What was relevant, incontrast,was the presence of third States (such as Malta) inthe
area being delimited when it came to identifying how far seaward the Tunisia-Libya
delimitation should be extended. Asthe Court stated:
"Howfar the delid tationline will extend north-eastwardswill, of course, depend on
the delimitations,ultimatelyagreedwith third States on ihe otherside of the PeIagian
Seawbs.
Accordinglyin its dispositifthe Court, in refersingtothe element of proportionality whichthe
delimitation ought to bring about, required "account [to be] taken for thispurpose of the
I
64 Ibid.,para6.26.
65 ContinentaShelf(T~4nisic ArLiJbmarahiriya),Judgment,I.C.J. Rep1982,p. 91,para130. effects, actuaor prospective,of any other continental shelf delimitation betweenStatesin the
same regionmb6.
8.71 The Court adopted a similar approach in the Libya-Malc tase, another delimitation
carried out in anenclosed sea. In that casethe method of delimitation decided by the Court
was based on a provisional median line adjusted to take account of the marked disparity in
the lengths of the coasts othe parties abuttinthe areato be delimited.
8.72 The method thus adopted bore no relation to themethods of delimitation which third
States may have utilisedin their bilateragreements jnthe Mediterranean Sea or which such
States had proclaimed as unilateral claims in the area. Whatwas relevant, on the other hand,
were the existence of Italian claims in the area subject to delimitation between Libya and
Malta. However, as the Court made clear initsjudgment, these claims only limited thelateral
extent of the Libya-Malta delimitation without in any way impacting on the delimitation
method decided by the Court to produce an equitable delimitation between Libya and Malta
themselves.In the Court'swords:
"The present decision must, as then foreshadowed, be lirni ted in geographical scope
so asta leave the claims of Italy unaffected,that isto say the decision of the Court
must be confined tothe area in which, as the Court has been informed by Italy,that
State hasno claims to continental shelfrights"".
8.73 A further relevant precedent is provided by the Court's decision in the North Sea
~
Continental Shelf cases. While in that case the Courtwas requested simply to articulate the
l
principles and rules of delimitation applicablebetweenthe parties forthe delimitation of their
continental shelves in what was a semi-enclosed sea, the Court in no way considered itself
bound by the delimitationmethods that otherStates (such as theUnited Kingdom orNorway)
had employed for theirbilateral boundary agreementsin the North Sea6'.
8.74 Romania refers to the fact thatin the North Sea cases, the Court stated that, in
considering the "reasonable degree of proportionality" which the delimitation should bring
56
67 Ibid., p.93, p133.(B)(5).
68 Continental SkeEf(LibArab Jamahiriyn/Mnltu), JudgmeI.C.J.Repons 1985p.26,para.21.
Similarly, in Qatar-Bahraincase, the Courtalso did not rely on the practicStatesin the
Persian Gulf fdetermininthe equitablmaritime boundwyThe delimitatiodecidedby the Court
wasbasedon theparticular factthecaseandtheapplicableinternationallaw.aboutbetween the extent of the continental shelf areasapperfainingto thecoastal States and
the lengths of the relevant partsof their coasts, account should be taken for this purpose of
"the effects, actualorprospective, of any other continental shelf deIimitatjon between States
in the same regionN6'H . owever,the relevance of this statement of the Court for the purposes
of the present dispute is the same as thatwhich has been previous1y discussed: the presence
of third States in the area may be arelevant factor determining how far the delimitation can
be extended, but it has no bearing on the actual delimitation method selected in order to
produce an equitableresult between the parties tothedispute.
8.75 As regards the dictum of the Arbitral Tribunal in the GuinedGuiaea-Bissau
Arbitrati citnd atparagraph 6.29 of Romania's Memorial - that"[a]delimitation designed
to obtain an equitable result cannot ignore the other delimitations alreadymade or stilto be
made in the region" -thim sere1yreinforces the point. In that casethe ArbitraITribunal took
into account the coasts of neighbouring States, notably that of Sierra Leone, in concluding
that due to the concave nature of the coast of that part of West Africa, "[tlhe equidistance
method has theother drawback of resulting ithe middle country being enclaved by the other
two and thus prevented from extenlng itsmaritime territory as farseaward as international
law However,once again, thiswas germane to the extent of the delimitation to be
effected, not tothemethod of delimitation adopted.
8.76 The clear conclusion is thatthe fact that the Black Sea is an "enclosed sea" is
irrelevant to the method of delirntation which is appropriate for determining an equitable
boundary as between Ukraine and Romania. Equally irrelevant is the basis for the maritime
boundary delimitations agreed as between Turkey and the USSR on the one hand, and
betwelenTurkey andBulgariaon sheother. Those agreements may be - indeed,are -relevant
for purposes of detemining how far the Ukraine-Romaniadelimitation should be extended
into the middIe of the Black Sea, but they are not germane to the choice of method or
methods that will produce an equitable result in this case. Any factors which third States
consideredtobe, ornot to be, relevantin the context of their respectiveboundary agreements
69
M, paras.6.27-6.28,citinNorthSea ContinentalSheycases, Judgment,I.C.J. Repo1969,p, 54,
paralOlD(3) andContinenraShelj(Tunisiu/ dLibbJamnahiriya),JudgmentLC.J, Reporrs1982,
70 p.93,para.133B(5).
ArbitraTribunafor the DelimitatioflheMaritimeBounda~ between Guinea and Guinea-Bissau,
Awardof 14February 1985,ILM,VolumeXXV, No. 2, p. 295para.104.cannot affect Ukraine's or, indeed, Romania's continental shelflEEZ entitl'ement under
internationallaw.
B. TheBlack SeaAgreementsCitedby Romania
8.77 Romaniarefers to pre-existing delimitation agreements in such awayas to imp1ythat
there were several. Thus Romaniarefers to "the delimitation practice existing in the Black
Sea"", "anumber of these [possibleBlack Sea] delimitations have alreadybeen settledt77z",all
the delimitationagreements concluded in the Black Seat'73",all concluded agreemen tsVT4 ,the
homogenous practice regarding delimitationsof maritime areas [scilin theBlack and
"all otherdelimitations completedin the Black SeaU7'.
8.78 In fact there are agreements conduded between only two pairs of States - a
continentalsheIfdelimitation agreementconcluded in 1978 between Turkey and the USSR7'
(to which Ukraine has now succeeded in so far as jtaffects Ukraine) and the other concluded
in 1997between Turkey and B~lgaria~~ M.aritime delimitation is still not agreeasbetween
Ukraine-Romania, Ukraine-Russian Federation, Ukraine-Bulgaria, Romania-Bulgaria, and
Romania-Turkey.
8.79 It is thus apparent that there is no widespread network of pre-existing bilateral
agreements between the riparian States of the Black Sea. Out of 7 possible bilateral
delimitation agreements in the Black Sea only 2 have been concluded. Even if only the
western half of theBlack Sea is takeninto account, there are 5possible bilateraldelimitation
agreements, and only one of the existing agreementssolely concerns that western half (the
other -USSR-Turkey - ismostly concerned with delimitation in the centraland eastern parts
of the Black Sea).
RM,para.6.t.
Ibidpara.6.3.
ibidpara.6.24.
Ibidpara.6.25.
Ibidp.ra.6.30.
Ibid.,para.6.34.
UhTS, Vol.1247,p. 141;Annex 17,Vol. 2. Theagreement entereinto force on I5 May 19The
Exchangeof Notes between Turkeyand the USSR on the Delimitation of the ExclusiveEconomic
Zones in thBlack Sea,dated23 December 1586and6February 1987,provided that the continental
shelf boundashouIdalso bevatidwithregardtothe ExclusiveEconomicZones: UNTS, Vol.1460,
p.136,Annex lll, Vol. 5.
UNTS,Vol. 2087, p. 6.The agreement enteredforce w4 November 1998,Annex 18,Vol.2.8.80 The two existing bilateral agreements both resulted in delimitation lines which
potentially impinge upon the entitlements of Ukraine and Romania, with consequences for
the locations af the Ukraine-Romania-Turkey and Romania-Bulgaria-Turkey tlii-points. As
will be seen, it appears that the parties to thetwo bilateral agreementstried to be careful to
avoidany conflict of that kind.
8.81 Given those possible impacts, the Court clearly has to be informed of such maritime
boundary agreements or claims of third parties. But thisis not because, as Romania asserts,
the solutions established by the existing delin~i tation agreements are relevant to the
delimitation in the area of concern toUkraine and Romania, the geographical characteristics
of which are in any event very different from those which gave rise tb the two existing
agreements,but only because of the possibility of practical conflict between the delimitation
lines drawn in those two pre-existing agreements and the delimitation line to which Ukraine
and Romania are entifled. In particular,as has been seen7',the methodologies adopted in
those two agreementshave no implications for the methodology to be adopted by theCourtin
the present case.
(i) Turkey-USSRAgreements,1978 and1986-1987
8.82 The delimitation line established by the Turkey/USSRagreement on the continental
sheIPOand the later 1986-1987 agreement on the EEZS1 is said by Romania to represent a
simplified equidistance lines2.To theextent that thatmay be trueS3i,t canbe really explained
by the fact that there was no significant disproportionality or other relevant circumstances
between the Black Sea coasts of Turkey and the USSR, unlike as between Ukraine and
Romania. No consequent adjustment to a provisional equidistance line would therefore have
been necessary.
?g See above, Chapte4,Section3.
80 UNTS,Vol. 1247, p.141,Annex17,Vol.2.Theagreement enteredintoforce on 15 May 198 1.
81 EINTS,Vol. 1460, p.136, Annex 111,Vol. 5. This agreement consisted of an Exchangeof Notes
between Turkeyand theUSSRon the Delimitatiofthe ExcIusiveEconomic Zones intheBlackSea,
dated 23December I986 and 6 February 1987:iprovided that thcontinental shelf boundaryshould
alsobe valid wiregardto the ExclusiveEconomicZones.
82 M, para.6.11.
83 Butseeabove, Chapter4,section 3. 8.83 Romania further states that the USSRlTurkey continental shelf agreement "envisaged
I
that? in principle, the end-point of the delimitation [..] would be at or about the point
43"26'59" N and 31°20'48" EMa4 w,hich, Romania points out, corresponds almost exact1y to a
I
I tripoint between the USSR (now Ukraine), Turkey and Romania calculated on the basis of
8.84 Article 1 of that agreement needs to be considered more fully. ArtrcIe l sets outthe
I continental shelf delimitation lineby reference to sets of coordinates, the linrunning more
or less diagonally north west and then westerly across the eastern and central sectors of the
I
BlackSea and into the western sector.The last point on thatagreed delimitation line is seat
I
43"20143"N,32°00t00"E. That point is approximately south west of Sevastopol'. Having
I
established thatlast agreed point onthe delimitation line,Article 1continues:
"The Contracting Parties agree that with the conclusion of thisAgreement the line
delimiting the continental shelf between the Republic of Turkey and the Union of
Soviet Socialist Republics has been defined as far as the point with co-ordinates
43'20'43" north latitude and J2"00'00" east longitude. The Parties have agreed that
thequestion of extendng the linedelimiting the continental shelf furtheto the West
between the points with co-ordinates of 43"20143" north latitude and 32°00'00" east
longitude and the co-ordinates 43'26'59" north latitude and 31°20'48"east longitude,
shall be settled later,in the course of subsequent negotiations, to be held at a
convenienttime. "
8.85 The two points in question (43°20'43"N132000i00"E ,nd 43"26'59"N11 3"20f48"E),
together with the delimitation line leading to the first of these poinare shown on Figure 8-
I
10.
8.86 Itisapparent from the text of Article1 thatitonly settled the delimitation linas far
as the point at 43°20'43"N and 32"00'00"E. The further, prospective, extension of the
I
delimitation line going as far as 43'26'59"N and 3 lo20'48"E - some 29.3 nautical miles
I
further -was only to be "settled later, in the course of subsequent negotiations": ndate for
84 RM, pasa.6.9.
85 RM,para.6.10, Notethatthecommentaryof ChameyandAlexanderon this agreement providesthat
th~point "is approximateltheequidistanttrijunction Romania-SovietUnion-Turkey.The nearest
pointon the territoryof the coasstatesare respective110.8n.m. (Soviet Union)111.6 n.m.
(Turkey),10.8mm. (Romania),and 119.9n.m.(Bulgaria)".J.I. Chamey andL.M. Alexander,(eds.)
I~ltertiatioMarininie Boundaries,Martinus Nijhoff Publishers,DordrechtlBostod London,
Volume 11p.1694. thosenegotiationswas fixed, it being agreed that they would be "held at a convenient time".
Thus the parties expressly provided thatthere wouldbe no agreementon the extension of the
boundaryuntil a later date, a fact thatis readily explained by theabsence at that time of any
other continental shelf delimitationagreementsin the Black Sea, notably with Romania.
8.87 This partof the USSRfhrkey agreement appears to show thatthose two States agreed
(i) thatno third State (whether Bulgaria or Romania)was entitled to claim continental shelf
rights further east than the point at 43'20'43"Nand 32"00'00"E,and (ii) that a third State
(whetherBulgaria or Romania) might have a basis for asserting such rights to the west ofthat
point, (iii) that accordingly they should refrainfrom agreeing their own delimitation line to
the west of that point, (iv) the matter could only be left over for subsequent settlement, and
(v) that a possible terminal point -"possible" since only the later agreementcould settle the
matter definitively- for anextension westwards was the point at43O26'59'"and 31'20'48 "E,
which seemsto have been chosen as a reasonable (but only appr~xirnate)~ p~tential tri-point
(subject to agreement). Article lof the USSRRurkey agreementcannot be construed as an
acknowledgementby the USSR(nowbindingonUkraine) that Romaniahad a valid claimup
to atIeast 4?i026'59"N and 31°20'48"E,let alone further east to the point at 43O20'43"N and
32"00'00"E. To the contrary, the USSR and Turkey simply refrained from agreeing on a
maritimeboundary in areas to which athird State might possibly layclaim.
(ii) TheAgreementBetweenBulgariaand Turkey,1997
8.88 The 1997 Agreement between Bulgaria and Turkey on the Determination of the
Boundary in the North Area of the MutluderelRezovska River and the Delimitation of the
Maritime Areas Between theTwo States in the Black Seag7 is discussecIat paragraphs 6.23-
6.20 ofRomania'sMemorial.
l
l
l 8.89 As Romania states, thatAgreement delimited the territorial sea boundarybetween the
1
two States (Article 3) and the continental shelf and EEZ boundary (Article 4). The
contidental shelf andEEZ boundary as delimited runs approximatelyeast-north-east fromthe
l
outer limit of those States'territorial sea boundary. More particularly it does so by joining
86 See above,previous note.
87
l See Annex 18,Vol.2. Condudedon 4 December 1997,enteredintoforceon4 November 1998.
!certainfixed turningpoints. The last twoturningpointsarePoints 9 and 10.Pojrit9 islocated
at43"19'54"N3 , 1'06'33"E;Point 10 islocatedat 43"26'49"N, 3 1"20143"E.
8.90 However, the parties again expressly abstained from definitively agreeing on the
endpoint of their mutualmaritime boundaryline, butinstead left the endpuint opefor further
negotiation.Article4(1) provides:
"As forthe drawing of thedelimitationline of the continental shelf and the Exclusive
Economic Zone further to the North-East direction between geographic point
43'1 9'54"N and 31°06'33 "E [i.e., Point 91 and geographic point 43'26'49"Nand
31°20'43"E [i.e.Point 101, the Parties have agreed that such a drawing wiH be
finalized laterat subsequentnegotiationswhich will beheld at a suitable time."
8.91 From this itisclear thatBulgaria and Turkey fixeddefinitivelytheircontinental shelf
and EEZ boundary as far onlyas Point 9, and agreeitsfurther continuation towardsPoint 10
only on a provisionalbasis and subjectto "finalizationin subsequent negotiations to be held
at some future unspecified time. The two points inquestion (Points 9 and 10),together with
the delimitation lineleading tthe first of these paints, areshown on Figure 8-11.
8.92 Romania'ssuggestion that Turkey and Bulgaria somehow "envisaged thatRomania
can validly assert a claim beyond Point does not follow from the language of the
Agrekment,While thepossibilizy of a Romanianclaim in those waters was perhapsenvisaged
by Bulgaria and Turkey, there is nothing to suggest that they acknowledged that any such
claim would be valid. The two Parties, aware that beyond Point 9 they would be entering
upon controversial waters, simply agreed that beyond Point 9 the delimitation linewouId
have to be finalizedlater isubsequent negotiations.
8.93 Even ifBulgaria and Turkey had by the terms of their Agreement made the kindof
acknowledgement which Romania now alleges (which, however, they did not), such an
agreementbetween two third Stateswouldbe, for both Romania and Ukraine,res inte r lios
acta:it could onno account operateto Ukraine's prejudice.
88
RM, para6.15.8.94 All that can be deduced from thispart of the TurkeyBulgaria Agreement appears to
be that(as with theearlierUSSR/Turkey Turkey andBulgaria agreed (i) that no
third State (whether Romania or Ukraine) was entitled to claim continental shelf rights
further west than the point at 43O19'54"N and 3I006'33"E [i.e.Point 9.1,and (ii) that a third
State (whetherRomania or Ukraine) might have a basis for assertingsuch sightstothe eastof
that point, (iii) that accordinglythey should refrainfrom agreeingtheir own delimitation line
to the east of that point, (the matter could on1y be left over for subsequent settlement, and
(v) that a possible terminal poin- "possible"since only the later agreement could settle the
matter definitely- for an extension eastwards from Point 9 was the pointat43"26'49"N and
31"20'43"B[i.e.,Point 101,whichseems to havebeen chosen (subject tolaternegotiation and
agreement) asa reasonable (but onlyappr~xirnate)~p'otential tri-point even though it wasnot
precisely the same as the equally approximate and provisional tri-point used for the
USSRlTurkeyAgreement. Article 4 of the BulgaridTurkey Agreement cannot be construed
as an acknowledgement by the those States that Romania had a valid cIaim beyond
43'19'54"N and 31°06'33"E(i.e., Point 9). To the contrary, Bulgaria and Turkey simply
refrained from agreeing on a maritime boundary in areas to which a thirdState might
possibly lay claim.
(E) The "RelevantdSircumtza8nces "stablished by TheseAgreements
8.95 It is apparent from the USSRITurkey and BulgarialTurkey agreements which
delimited those States' maritime boundaries in the BlackSea that theydid so in away which
has consequences for the delimitation of the UkraineRornania maritime boundary in these
present proceedings.
8.96 It is, first, clthatallthree sets of maritime boundariesare likelyroextend outwards
from their territorial sea starting points in saway as tomeet somewherein the middle of
the western halfof the Black Sea.
8.97 It is equally clearthatthe USSR (and now Ukraine)Rurkey maritime boundary has
been agreed only as far as the point at 43020143"Nand 32°90'00"E, and that the
89
90 Seeabove, paras8.82-8.87.
See above,note86.EEnConanentaI ShelfBo .. - 229-
BulgarialTTurkey maritime boundary has been agreed only as far as the point at43'19'54"N
and 31°06'33"E(i.e.,Point 9):these points are shown on Figures 8-10and X-fl.
8.98 It is similarly clear that further westwards from the final USSR (Ukraine)/Turkey
agreed point, and further eastwards from the final BulgariaiTurkey agreed point (i.e.,
Point 91, the indicative extensions of the agreed delimitation line are no more than
provisional lines, not yet finally agreed. Those possible potential extensions must await
furtheragreementfollowingfurther negotiations at somefuture time which is stiHtobe fixed.
The States concerned - i.e., USSR (and now Ukraine), Turkey and Bulgaria - implicitly
acknowledged the possibility of overlapping claimsin that centralarea of the western sector
of theBlack Sea, and expressly refrainedfrom agreeing upon their own boundary lines inchat
area.
8.99 It follows, consistently with the Court's previous decisions, that the two other
delimitations alreadymade in the Black Sea arerelevant circumstances which the Court must
take into account in deciding whether any adjustment to the provisional equidistance or
median line is called for. In the circumstances of the present case such an adjustment is
required in so far as the southward extent of the provisional equidistance or median line
(adjusted asmaybe necessaryon other grounds) must be restricted in order to:
(i) enable theCourt's decision to "be confined to the area inwhich [Bulgariaand
Turkey have] no claim to continental shelf rightsHg 1,d
(ii) ensure that the delimitation line between the continental shelf and EEZ of
Ukraine and Romania "[does] not ignore the other delimitations aIready
madewg2 in the BIack Sea by the USSR and Turkey, and by Bulgaria and
Turkey.
91
Above, pam.8.72.
92 Above,para.8.75. CHAPTER9
UKRAINE'SDELIMITATIONLINE
9.1 The delimitation as proposed by Ukraine results from the application ofthe equitable
principles-relevant circumstances rule. According to thatrule,the equitable character ofthe
provisional equidistance line, whichis drawn as a first step is to be evaluated the Iight of
the relevant circumstances,and thebalancing up of those circumstances in a second step may
involvea modification or an adjustment of the provisional line in ordeto reach an equitable
solution. Thatisprecisely what Ukraine proposes todo here. As indicated in Chapter7 above,
the equitableness of the result will then be tested with reference to the criterion of
proportjonality.This will be done in Chapter 10below.
9.2 Before examiningthe reasons and scope of the adjustment which,in Uluaine's views,
isdeemed necessary in the present proceedings, some explanations are to be given concerning
the Iine proposed by Ukraine in thedelimitation negotiations which took place before the
submission of this case to the Court, since thatnegotiating linecan shed some light on the
conditions now leading toan adjustment ofthe provjsional equidistance line. In fact, tline
put forward by Ukraine in the negotiations with Romania was not only consistent with the
framework agreed in 1997 between the two States for those negotiations, as will be seen
hereafter, but is also the line which as a matter of international law forms the proper
delimitation line for the Ukraihe-Romania continentalshelf andEEZ boundary.
Section 1. Reminder and Explanation of Ukraine's Negotiating Line Proposed to
Romania
9.3 Following Ukraine's resumption of independence in 1991, Ukraine and Romania
embarked upon new negotiationsto establisha firmbasis for their futurerelations, including
settlement of their differences over delimitation of their continental shelf and EEZ
boundaries.9.4 On 2 June 1997 the Parties to the present proceedings concluded a Treaty on the
Relations of Good Neighbourliness and Cooperation between Romania and Ukraine', In
Article 2 of thisTreatythey agrecdto:
"settle the problem of the delimitation of their continental shelf and of economic
exclusive zonesin the Black Sea on the basis of the principles and procedures agreed
upon by an exchange of letters between theministers of foreign affairs, which shall
take place simultaneously with the signature of the Treaty. The understandings
included in thisexchange of letters shall enter into force simultaneously with entry
into force of thisTreaty".
9.5 By paragraph4 of that simultaneous exchange of letters the Partiesagreed to
"negotiate an Agreement on the delimitation of the continental shelf and the exclusive
economic zones in the Black Sea",on the basisof certain principIes and procedureswhich
werethen set out2.
9.6 These "principles and procedures" were introduced with a chapeau to paragraph 4
which reads asfollows:
"The Government of Ukraine and the Government of Romania shall conduct
negotiations on the Agreement on Delimitation of the Continental Shelf and the
Exclusive Economic Zones of both States in the Black Sea on the basis of the
following principIesand procedures:"
9.7 The "procedures"referred rawere those set out in sub-paragraphs(Q,(g) and(h), and
relate tothe way in which the Parties were to conduct ihernselves in the course of their
endeavours to settlthe problem of delimitation by a negotiated agreement3.
9.8 The five "principles"were set out in sub-paragraphs (a)to (e),as follows:
The principle provided under article 121 of UN Convention on the Lawof'the
"(a)
Sea of 10 December 1982as appliedin the practice of States and international
1 adjudication;
l
1(b) The principle of equidistant line in delimitation areas where coasts are
adjacent,and the principleof median line in areas where coasts are opposite;
1
I I
/Seeabove, para5.113-5.114.
1Seeabove,paras2.4 an5.117.
/Seeabove, pan. 2.4. (c) The principle of equityand method of proportionality as applied in practicof
States and decisions of international institutions relatedto delimitation of
continentalshelf and exclusiveeconomiczones;
(d) The principle, according to which none of the Contracting Parties shall reject
the sovereignty of other Contracting Partyover any part of its territory adjacent
to the delimitatioarea;
The principleof effect of special circumstanceswithin thedelimitation zone;".
(e)
9.9 It is prima facie apparent from this language that the "principles" which were
enumerated were to form the basis on which the Parties were to "negotiate" a delimirition
agreement. They were therefore agreed to be thebasis on which the negotiations would be
conducted. This made practical sense. There are no guiding substantive principles for
dipIomatic negotiations. Xnorder to give the negotiations a focus, and as a first step towards
solving the problem for which a solution was to be negotiated, setting out such guiding
principlesascouldbe agreed at theoutset was obviouslyahelpful step.
9.10 During those negotiations Ukraine acted in accordance with the five principleson
which the Parties had agreed (hereafter "Negotiating Principles"). Inevi tab1y various
delirnitation linewere discussed by the Partiesin the negotiations. Ukraine'sfinal negotiating
line is depicted onFigure 9-1.That line was arrived at in the following manner.
(1) Ukrainefirst drew an equidistance line, which was partly a "strict"equidistance line in
the area where the coasts are adjacent, and partly a "strict"median line between
opposite coasts, in accordance with Negotiating Principle (b) and established
internationaljurisprudence. (See Figure 9-1 A). In drawing such a line Ukraine gave
full effect to the relevant basepoints, including Uktaine's Serpents' Island, in
accordance with Negotiating Principles (a) and (d), and also in accordance with
established internationaljurisprudence requiring the initial, provisionaline to be
drawnon a strict and unadjusted basis. WhileRomaniaprofesses to see in Negotiating
PrincipIe (a) a reference only to paragraph 3 of Article 121, there was no such
limitationinthe terms of Negotiating Principle (a),which referred only to Article121
as a whole, and Ukraine's use of Serpents'Island for maritimedelimitation purposes
was fully consistent with that NegotiatingPrinciple.(2) As the Parties had agreed in Negotiating Principle (c) that they should negotiate a
delimitation agreement on the basis of, inte rlia, "themethod of proportionality", in
Ukraine's view, it was necessary to take into consideration the proportional
relationship between the Parties'coasts in the relevant area. The ratio of the Parties'
coastal lengths, taking account of allthe sinuosities of those coasts,was calculated by
Ukraine to be inthe order of 5 to 1in Ukraine'sfavour. A "coastal ratio line" dividing
the maritime area in dispute in that proportion was then constructed, as depicted on
Figure9-1 B.
(33 That coastal ratio linewas, however,perceived by Ukraine to be unreasonably close to
Romania'scoast, and needed to be adjusted by being swung in an anti-clockwise
direction, in accordance with Negotiating Principle (c) with its reference to the
principIeof equity. Ukraine accordingly moved its negotiating line back half way
.
towards the provisionalequidistance line, asdepicted on Figure 9-1 C.
9.11 It is thus apparent that Ukraine's negotiating linewas developed in full accordance
with the Negotiating Principles which the Parties agreed should fonn the basis for their
agreement.
9.12 Nevertheless Romania was unable to agree to the line put forward by Ukraine.
Consequently, the provisions of the Parties'agreement providing for the reference of their
dispute tothe Courtbecame applicable, and the present proceedings are theresult4.
As also apparent, the lineproposed by Ukraine during the negotiationswith Romania
9.13
was not a "proportionality Iine".Ukraine'snegotiating line was a reduction from the extreme
proportionality line which, as a matteof negotiation,W as perfectly justified.
9.14 The delimitation line which Ukraine is now proposingon thebasis of applicable legaI
principles is no more a "proportionality line". Ukraine's delimitation line proposed in the
present proceedings involves the movement south-westwards of the provisional equidistance
Iine,as wilIbe seen in the following section, in 0rder.b reflect the greatdifference of length
of thecoastal fronts.
4
Seeabove,paras.2.5-2.6.Section2. The Adjustment of the Provisional Equidistance Line in the Present
Proceedingsto Achieve an EquitableSolution
9.15 Having established a provisional equidistance line on a strict or literbasis,' thenext
step consists in determining whether there are anyrelevant circumstanceswhich requirethat
line to be corrected or adjusted in order to achieve an equitable solution. The circumstances
that areto be regarded as relevant to thepresentcase have been identifiedand discussed in the
previousChapter.
9.16 Itis to be noted that a relevant circumstance does not afford a basis for correcting or
adjustingthe provisionalequidistance linesimply because of factors inherent in that particular
circumstance.Thusfor example the shortnessof a relevant coastline does not in itselfrequire
an adjustment of the provisionalline; nor does the smallnessof some particular island (such
as Serpents'Island). The adjustment is called forifand in sofar as the relevant circumstance
prevents the provisional line from leading to an equitable solution; i.e. i,must first be
established thatthe provisional equidistance line does not itselfachieve an equitable solution,
so that some correctionor adjustment becomes necessary for that purpose, which thenmakes
itappropriate to invoke a relevant circumstance as a basis formaking an adjustment to the
provisional linein orderto achievethe requiredequitable solution.
9.17 Such assessmentsturn on the overall outcome in the waters where the delimitation is
to take effect. It means that if,on the basis of the provisional equidistance line, theoverall
resulting situation in the affected waters would represent an equitable solution, then itwould
be inappropriate to adjust that linejust because some feature - the length of a coastline,the
size of an island - might, taken on itsown, suggest an adjustment one way or the other. As
already underlined in this Counter-Memorial, the assessment of one particular feature isto be
done within the context of the relevant area taken as a whole, and comparatively to the
significance andimpactof all the circumstances6.
9.18 A perfectillustration of the rationale of adjusting a provisional tine in order to reach
an equitable result maybe found in the 1993Judgment ofthe Court relating to Jar?Mayera.In
3
6 Seeabove,Chapter7.
Seeabove para.8.18. that case, variousfactors wereregarded as relevant, and account was taken inparticufar of: (1)
the disparityof the coastal lengths, (2) the equitable access to the capelin stock in the area,(3)
the presenceof ice in the watersof theregion, and (4) its effect on access tomarineresources.
Having examined allthose geophysical circumstances, the Court came to the conclusionthat
"the median line provjsionally drawn, employed as starting-pointfor the delimitation of the
continental shelf and the fisheryzones, must be adjusted or shifted so as to attributea larger
areaof maritime spacesto Denmark7. But the Courtconsidered that a line drawn200 nautical
miles from eastern Greenland, as claimed by Denmark, "would however be excessive as an
adjustment, and would be inequitable in itseffects"'. Therefore, the delirnitation line was
drawn betweenthe median line and the 200-mileline fromthe baselines ofeastern Greenland,
and the area of overlapping claims was divided into three zones, one of them only being
divided into two parts of equal area so that "the two Parties shquldenjoy equitable access to
the fishingresources of this zone"g.
9.19 AccordingIy, taking accountof the Court'sreasoningin that previous case, it is quite
clear that, when needed in order to meet equity requirements, any adjustment of the
provisional equidistance or median line mustalso meet the criterion of reasonableness, which
is one of the basic legal principlesto be followed in any interpretationand application of a
rule of internationallaw1',including the rules of maritime delimitation. The raison d'gtrefor
the shifting of the provisional line in the present case consists precisely in realizing a
reasonable adj ustrnent.
7 Maritime Delimita~ionintheArea between Greenland and JanMayen, Judgment, LC.J.Reports 1943,
p.79, para. 90.
8 Ibidp..77, para.87.
9 Ibid., 79, para.92.
10 See Bin Cheng, General Principlesoflaw as Applied byInrernationaCourtsands Tribunals, 1953,
Stevens & Sons, London, pp, 34-36; JeanSalmon, "Le concept deraisonnabte en droit international
l public",Mklanga oflerts dPaulReuter. Le droit international : uneediversitd, 1981EditionsA.
Pedone, Parispp. 447-478. A. Disproportionin CoastalLengthsMustBe Reflectedin Orderto Reachan
Equitable Solution
9.20 As fullydemonstrated elsewhere in this Counter-Memorial", thereis a substantial and
significant difference between the lengthsothe respective coasts of Ukraine and Romania.
~
Comparedwith the Romanian coast, Ukraine'scoastsare at leastfour times as long.That very
~ marked difference in coastal lengths is so obvious and striking that it does not requireprecise
calculations tbe proved. There can be no doubt that thisdifference in coastal lengthisa
highly relevant circumstance, indeed the most relevaof allthecircumstances characterizing
thepresent case sinceitis basedon the geographicalrealities. As such, it cannot be ignored,
and muse be reflected in thdrawing of the delimitation line between the respective areOF
continentalshelf andEEZ pertaining to Ukraineand Romania.
9.21 This very largedisproportionin coastal lengthis to beconsidered within thebroader
context of the relevant area, and btakinginto consideration other factors such the shape
of thatarea12and the geographical preponderanceof Ukraine in the areaI3.Inthe assessment
of equities, when loohng at the initial result provided btheprovisional equidistance line,
account is alsoeventual1y tbe taken of the State activities of the PartitheareaL4a,swell
asthe presence ofthird States ithe vicinityof the areto be delimited between Ukraine and
Romania".
9.22 With regard tothose various circumstances orfactors,the questionto be addressed is
I
I whether, viewing rhe situatiolz inthe north-westem Black Sea overall, the provisional
equidistance line drawn on a strior literabasis produces a resultwhich does not represent
anequitable solution.
9.23
A strictly drawn provisional equidistance line is illustrateon Figure 9-2. As is
apparent from that illustration, the provisional equidistance line statheagreedpointon
the 12 nautical mile arc around Serpents' Island which lies approximatelysouth west of that
11 Seeabove,paras. 3.15-3.22,3.49-3.57and 8.28-8.34.
12 See paras.8.11-8.19above.
13 See paras8.20-8.27 above.
14 See Chapter 8, Sectiabove.
15 SeeChapter 8, Sectioabove. island (the point is referred to as Point A). It then runs in a southerly direction'to a point at
44"4X124"N;30°10'56"Ereferred to as Point B, after whichit turns to run ina south-easterly
direction until Point C at 43"55'3Jt'N;3I023'26"E, and hence continues due south, as
explained in para.7.91 above.
9-24 It appears that such a provisional line dividing the continental shelf and exclusive
economic zones of Ukraine and Romaniawould not be entirely equitable in its effects. As a
matter of fact, that line would resultin a rather inequitable divisionof themaritime areas.The
area under Ukrainian jurisdiction would have a surface of about 18,140 squaremiles or
62,230 square lulometres, whiIe the surface of the Romanian area would be 8,010 square
miles or 27,480squarekilometres, thatis a ratioof 1to 2.3 in Ukraine'sfavour,whenthe ratio
of coastal lengths israther 1to 3,7 oreven 1 to 4,l in favourof Ukraine.
9.25 Surely, such a division would not satisfy "theelement of a reasonable degree of
proportionality, which a delimitation carriedout in accordance with equitable principlesought
to bring about between the extent of the continental shelf areas appertaining to the coastal
State and thelength ofits coast measuredin the general direction of the coastline..."I6Tnthat
respect, itmust be underlined that in the Gulfof Maine case, where the ratio of coastal lengths
was only 1.38 to 1, the Chamber of the Court considered it "impossible to disregard the
circumstance, which is of undeniableimportance in the present case, thatthere is a difference
in length between the respective coastlines of the two neighbouring States which border on
the delimitation area. Nut to recognize this factwould be a denial ofthe obvious. The
Chamber therefore reaffirmsthe necessity of applying to the median line as initiallydrawn a
correction which, though limited, will pay dueheed tothe actual situation"".
9.26 In order to satisfythat element and to ensurethe achievement of an equitable solution,
I it would thus be necessary to adjust the provisional line, account being taken of the broad
l geographical fi-arneworkof the area and in particular of the very marked disparity between
coastal lengths.That adjustment can be realizedthrough a shifting of the provisional line in a
I south-westerly direction up to a line starting from Point 1 at 45"05'2Z"N;30"02'27"E (which
1
is the point agreedin Article l of the 2003 Tseaty, and is labelled Point A of the provisional
16
l7 NorthSea ContinentalSheEfJ;udgment, I.C.J.Repor1969, p.54,para.l01 D (3).
, Delimirationofthe Maritime Boundn~yin flze Gulf ofMaine Area, Judgment, l.C.J. Reporfs 1984,
pp.334-335,para.2 18(emphasisadded).1 equidistance line), and passing through Point 2 at 44O54'00"N;30506'00"E, and then
followingthe azimuth 156 untilPoint 3 at43"20137"N;31"05'39"E,as illustratedonFigure 9-
3. From Point 3, the line continues along the sameazimuth until it reaches a pointwherethe
interests ofthird States potentially will come into play. No terminal point can therefore be
indicated for that line, which ends with anarrow.Thus,by moving the provisional line closer
to the Romanian coast, due account is taken of all the relevantcircumstances characterising
the area, including the large disparity betweenthe two coastal fronts. The equitable character
of the resulting line will verified inthe followingChapter.
B. Serpents' Island Does Not Justify Any Adjustment of The Provisional
EquidistanceLineinRomania'sFavour
9.27 So far as the effect of Serpents' Island is concerned, there is nothing in such a
provisional equidistance line which produces a resultwhich is inequitable for Romania, or
which consequently requires that line to be adjusted in a direction favourable to Romania
(e.g., by moving it further eastwards). More significantly, however, the provisional
equidistanceline based on "fulleffect" for SerpentstIslanddoes infact produce a result which
would be inequitablefar Ukraine given the major disparity in the coastal lengths of thtwo
States fronting on tthe maritime area relevant for the delimitation whichis to beundertaken
by the Court. This, however, is not a consequence which flows from the characteristics of
Serpentst Island, but one flowing from a quite separate relevant circumstance. The result is
that, far from the strict or "fueffect"provisionalequidistance line needingto be adjusted in
Romania's favour because of Serpents' Island, itin fact needs to be adjusted in favour of
Ukraine because of another andmore substantial relevantcircumstance.
9.28 In short, Serpents' Islandis not itself a fawhich, viewing the situation ithe north-
western Black Sea overall, calls forany adjustment in Romania's favour to the provisional,
"fuleffect", equidistanceline in orderto anive at anequitable solution.
9.29 That conclusion is borne out by testing the line which would result from an
equidistanceline constructed on astrict or literal basis against the principleof proportionality.
As shown in Chapter 10, such a line not only produces a line which is demonstrably not
inequitablefor Romania, but doesindeed produce a line which isinequitable forUkraine. m
- UKRAINE
[Crimea)
d
C SEA
Uhaineb Delimitation CHAPTER10
TESTINGTHEE9)UITABEEMSS OF THE RESULT
Section X. Introduction
10.1 The finalstep in the delimitation process, after the provisional equidistance line has
been drawnand then modified to reflect therelevant circumstances, is to testthe equitableness
of the delimitation line arrived at as a result of the first two steps. The Court'sprecedents
make clear, and the Parties are essentially in agreement, that the equitable nature of a
particular delimttationis testedby reference to the criterion of proportiondity'.
10.2 The basic principle was articulated by the Court in the North Sea Conri~erztalShelf
casesin the following way.
"A final factor to be taken account of is the element of a reasonable degree of
proportionality which a delimitation effected according to equitable principles ought
to bring about between the extent of the continental shelf appertaining to the States
concerned and the lengths of their respective coastlines, - these being measured
according to their general direction in order to establish the necessarybalance between
States with straight, and those with markedly concave orconvex coasts, or to reduce
veryirregularcoastlines totheir truer proportions2.
10.3 Elsewhere, both this Court and other international tribunals have noted chat it is
"disproportion", rather than the use of a strict mathematical apportionment of maritime areas
as a method of delimitation, which provides the appropriate test.As expressed by theCourt of
Arbitration in the Anglo-French Arbitration:
"In short, it is disproportionrather than any generalprinciple of proportionalitywhich
is the relevancriterion orfactorw3.
1 Romania'sposition, see, for example,para.8.65.
2 NorthSea ContclaenrShe& Judgment, 1.C.J.Reports1969, p.52, para.98, and see p.54, para.
101(b)(3).
3 Case concen~ingrhe Delimitationofthe Continental Sheifbetween the United Kingdom ofGreat
Britainand Northern IreIand,andthe French Republic, Decision of30 June 1977,U.N.R.I.A.A.,
Vol. XVIII, p.58, para101, cited with approvalin,MaritimeDelimitafion inthe Area between
GreenlandandSan Mayen, JudgrrrerI.C.J. Reports 1993,67,para.66.10.4 At thesame time, the Court has also emphasized that there is a certain relationship, as
well as a distinction, between the criterion of proportionalityappliedto test the equitableness
of a resultarrived at by other means and the lengths of the coasts of the Parties abutting the
area to be delimited as a relevant circumstance to be taken into account in arriving at an
equitable delimitation.The matter was addressedby the Court in theLibydMalta case in the
following way-
"The Court has already examinedthe roleof proportionality in a delimitation process,
and has also referred to the operation, empIoyed in the T~~aisidLibyacase, of
assessing the ratios between lengths of coasts and areas of continental shelf attributed
on the basis of those coasts. It has been emphasized that this latter operation isto be
employed solely as a verificationof the equitableness of the result arrived at by other
means. Xtis however one thing to take note, inthe course of the delimitation process,
of the existence of a very marked difference in coastal lengths, and to attribute the
appropriate significance to that coastal relationship, without seeking to define it in
quantitative terms which are only suited to the ex posr assessment of relationships of
coast:to area. The two operations are neither mutually exclusive, nor so closely
identified with each other that the one would necessarily render the other
supererogatory.Consideration of the comparabilityor otherwise of the coastal lengths
is a part of the processof determining an equitableboundary on the basis of an initial
median line; the test of a reasonable degree of proportionality, on the other hand, is
one which can be applied to check theequitableness of any line, whateverthe method
used to arrive at that linety4.
10.5 Romania purports to accept the dual role thatthe lengths of the Parties'coastsplay as a
relevant circumstance and as an element in applyingthe test of proportionality. For example,
the Romanian Memorial states:
"proportionality has never been used as an independent mode or method of
delimitation, but as a relevant circumstance in delimitation,justifying adjustment of a
provisional equidistance line; itmayalso be used as a test of the equitableness of the
result'5.
However,Romania then proceedsto disregardthe vast disparity that exists in the lengths of
the relevant coasts of the Parties as a relevant circumstancecalling for the adjustment of the
provisional equidistance line, and to apply the proportionality test to the wrong set of
geographical facts.
4
ConrinentalShelf(Liyan Arab JnmahiriydMaltu)Judgmenr,I.C.JReports1985,p. 49,para66.
S RM, para.8.70(2).10.6 In Section 2, Ukraine will show that Romania'sclaim completelyfails .tosatisfy the
criterionof proporhonality as a test of the equitable nature the delimitation. The Romanian
claim results in a delimitation which is demonstrably "disproportionatet'when examinedin
the lightof the relevantcoastsof the Partiesand the relevant area. Thisisscarcely surprising
given that Romania had based its analysis on a. self-serving and manifest1y inaccurate
descriptionof the relevant coasts andthe reIevantarea.
10.7 In Section 3, Ukrainewill then apply theelement of proportionality to its own method
of delimitation set out in the previous Chapter. As will be seen, whether the criterionis
expressed in terms of proportionality or in terms of achieving aresult which is not markedly
"disproportionate1'given the coastal geography,Ukraine's delimitation line more than satisfies
the proportionality test.
Section2. Romania's ClaimLine Fails toSatisfythePropostionaaHit Tyest
10.8 In Chapter 12 of the Romanian Memorial, Romania contends that its claim line
satisfiesthe testof propostiunalityA.ccording to Romania, the lengths of the Parties'relevant
coasts are:
Romania'srelevant coasts: 269.67 Km
(204.90 Km if measured accorhng to Romania'sbaselines).
Ukraine's relevantcoasts: 388.14 Km
(292.63 Km if measured accordrngto Ukraine's baselines)
Romania thus posits a coastarelationship of 1 to1.439 (1 to l.428 ifthe baselines are used)
in Ukraine'sfavoul.6.
10.9 Romaniaalso maintains that the "relevant area" has a surface area of 86,095.3 km2,
and that its claimproduces a division of thisarea in a ratio of 1to 1.729inUkraine's favour7.
Based on these calcuiations,Romania concludes that the ratiosof the lengths of the Parties'
6
7 RM, pans. 12.6-12.7.
Ibid.,paras. 12and12.5.relevant coasts and the division of the water areas resulting from its claim line "are
comparable", and that: "thusthere is no reason to further shift the delimitation line"".
10.10 These calculations sufferfrom two obviousand fundamental defects.Tnthe first place,
Romania misidentifies the relevant coasts of the Parties (particuIarly the relevant coast of
Ukraine). Secondly, Romania'sidentification of the "relevant area" is wrongly defined. As
will be seen, the combination of these two errorsproduceshighly distorted and unsupportable
coastal comparisons andthus vitiates Romania'sentire attempt to arguethat its claim respects
the element of proportionality.
10.11 With respect to the coastal geography, Romania has artificially excluded a 630
kilometre stretch of Ukraine'scoast which abutsthe maritime area to be delimited in this case.
This is the stretch of Ukraine'scoast lying betweenRomania's "Point S"and Cape Tarkhankut
in Crimeadiscussed in Chapter 3'.For ease ofreference, Ukraine refers to Figure 10-1 facing
thispagewhichhighlights this important stretch ofcoast which Romania simplydiscards.
10.12 At the same time, Romania has no hesitation using itsentire coast up to itsboundary
with Bulgaria despite the fact that the longer segment of this coast, south of the Sacalin
Peninsula, has absolutely no effect on the construction of Romania's claim line, and the
northern stretch of itscoast, between the land boundary with Ukraine and the Sacalin
Peninsula,is double counted by being used both for Romania's "adjacentcoasts" sector of its
claim line and its"opposite coastst1sector as well.
10.13 The end resultisquite extraordinary.In effect, Romania treats the delimitation thatthe
Courtis asked to effectuate as a delimitation betweenRomania's entire coast, on the onehand,
and a short stretch of Ukraine'scoast north of the land boundary with Romania and a limited
part of Waine's Crimean coast, on the other. A11of Ukraine's coast in between (from
"Point S" to Cape Tarkhankut) is treated as if it does not exist. The exercise is artificiathen
extreme and is ablatant attempt to refashiongeography.In this connection,it is appropriateto
recall what the Courthas said about the need todeal with the geographic facts as they stand.
8 Ibidpara. 12.8.
9 See, paras.3.13 ancl3.22-3.28above. BLACK SEA
Ukrainian Coa!' EliminatedbyRomanr "Equity does not necessarily imply equality. There can never be any question of
completely refashioningnature, and equity does not require thara Scarewithout access
to the seashould be allotted an areaof continental shelf,any more than there could be
a question of rendering the situationof a State with an extensive coastline similarto
thar of a State with a restricted ~oascline"'~.
10.14 If the 630 kilometre stretch of Ukraine'scoast which has beenignored byRomania is
incIuded in Romania's calculation of coastal measurements, the resulting figures are as
fo~lows:
Romania'sCalcuIaEions Ukraine's Calculations
Romania'scoast: 269.67 Km Romania'scoast: 258Km
Ukraine'scoast: 1,018.14Km Ukraine's coast: 1,058 Km
Coastal ratio 1to 3.8 Coastalratio Ito4.1
10.15 Thus, even accepting Romania's measurements, and including the length of coast
disregarded by Romania, the actual coastalratiois3.8 to 1 in favour of Ukraine, not 1.4 to1
as argued by Romania. In other words, Romania'sdistorted identification of the relevant
coasts of Ukraine results in eliminating over 60% of Ukraine's relevantcoast.This, in turn,
createsa massivedistortion in Romania'scoastalratiosof almost 300%.
10.16 The second flaw in Romania'sproportjonali ty analysis concerns the identification of
the relevant area. Once again, the basic shortcomings of Romania's approach have been
pointed up in Chapter 3".
10.17 To recapitulate, Romaniahas excluded from the relevant areathe maritime areas lying
off Ukraine's south-facingcoast by drawing a fictitious closing line between "Point S" and
Cape Tarkhankut. Romania has then compounded its errorby including a large triangleof
area lying south of Cape Sarych which bears na relationship to the area to be delimited
betweenUkraine and Romania, but which is relevant exclusively to thdelimitations between
Ukraine and Turkey and, potentialy,Ukraine and Bulgaria.
'O
11 North SeaContinentalShelJudgment,I.C.JReports1969,pp.49-50,para.91.
See, paras3.58-3.7above.10.18 Notwithstanding this incorrect definition of the relevant area, even accepting
Romania's "relevant area" for purposes of argument, Romania maintains that its claim line
results in a division of the area in a ratio of 31,542.8 km2 to Romania and 54,552.5km2 to
Ukraine, or a ratio of 1 to 1.7". As noted above, however, the actual ratios of the Parties'
relevant coasts fronting the area to be delimited are in the order of 4.1 to 1 in favour of
Ukraine. In other words, Ukraine'scoast is some four times longer than that of Romania, yet
Romania'sclaim divides the areain aratio of onlyabout l.7 to 1.
10.19 It is abundantly clear, therefore, that Romania's claim, when tested against the
criterion of proportionality, produces a gross1y disproportionate result. While delimitation
does not depend on a strictmathematicalapportionment of maritime areas in proportion to the
lengths of the Parties'coasts, by anyreasonable assessment, a discrepancy ofthe magnitude of
that produced by Romania'sclaim line fails to satisfy the test of proportionalityand thus does
not achieve an equitable solution which, as ArticIes 74(1j and 83(1) of the 1982Convention
makeclear,is the ultimate aim of delimitation.
Section 3. Ukraine'sDelimitationFullySatisfiestheProportionality Test
10.20 In contrast, Ukraine's position more than meets the testof proportionality. As will be
shown, this confirms the equitable nature of Ukraine's proposeddelimitation.
10.21 In order to calculate coastal lengths and resulting ratios, Ukraine has asked experts
from the United Kingdom Hydrographic Office to cmy out the relevant technical work.
According totheir calculations, the relevantcoasts of the Partiesstand in a relationship of4.1
to 1 in Ukraine's favour when measured along the low-water line of those coasts (Romania's
coast: 258 luIometres;Ukraine's coasts 1062kilometres)''.
10.22 Within the relevantareaas correctly definedby Ukraine and illustrated onFigure 10-
2, Ukraine's delimitation line results in a surface area of roughly 67,900 km2appertaining to
12
13 RM, para.12.5.
Ifthe relevacoasts of the Parties are measured accototheir coastal fa~adesgeneraldirection,
theratiois itheorder o3.7 to1 (Romania'scoastafaqade = 185kilometres;Ukraine'scoastal fagade
= 684 kilometres).Ukraine and approximate1y 21,900 km2 appertaining to Romania, or a ratio of 3:1 to lI4.This
ratio isless than thatwhich would result from a striccomparison of the length of the coasts
of the Parties tothe maritime areas that appertainto those coasts under Ukraine's delimitation
proposal and thus favourable to Romania. Nonetheless, unlike Romania's claim line, the
resultingdivisionof maritime areas produced by Ukraine'smethod of delimitation is broadly
comparable to the lengths of the Parties' relevant coasts, if anything favouring Romania. It
follows that Ukraine'sdelimitation line more than satisfies the element of proportionality as a
test of the equitableness ofthe result.
Section4. UnlikeRomania'sMethod,Ukraine'sDelimitation Does Not Produce Any
"Cut-Off"Effect
10.23 The RomanianMemorial also discusses the principle that an equitable delimitation
should not produce a "cut-off"effect or encroachment on the maritime zones appertaining to
either of the two States15.It is evident that Ukraine's delimitation proposal respects the "no
cut-off"principle while Romania'sclaim does not.
10.24 The clearest example of Romania'sdisregardfor the "no cut-off" principle lies, once
again,in Romania'streatment ofthe Parties'relevant coasts. Romania'sclaim, in its northern
sector, enclaves the Ukrainian tenitory of Serpents'Island and then proceeds in an almost due
east direction directly in front of, and parallel to, Ukraine's south-facing coast. The
consequence is a two-fold cut-off of Ukraine's maritime entitlements. First, the maritime
entitlements of Serpents' Island are dramatically truncated by allocating to that island no
continental shelf and no exclusive economic zone. Second, Ukraine's south-facing main1 and
coast isdeprived of theareato which itis legally entitleand is treatedby virtue of Romania's
artificial closing line from "Paint S" to Cape Tarkhankut, as non-existent. The end result is
clearly inequitable and represents a fundamenta1 encroachment on continental shelf and
exclusive economic areas that should appertain to Ukraine under the equitable principles
asticulatedby theCourt.
14 IfRomania's relevant area is usinsteadthe resulting raofosurface areas produceby Ukraine's
proposalwouldbe 1:3.4,aresulwhichis notmateriallydifferent.
15 RM, paras.12.9-12.13.10.25 Ukraine'sproposal, on the other hand, fully respects the non-encroachmentprinciple.
It reflects the geographicfact,discussed in Chapter 3, thatUkraine'scoast fronting the area to
be delimited projects in essentially three directionswhile Romania'scoastprojectsbasically in
a single direction -southeastwards. Within theconfines of this part of the Black Sea, each of
the Parties' coastal faqades, as well as Serpents'Island, generates maritime rights Iyingoff
these coasts -a factorwhich is fullyrespected by Ukraine'sproposal.
Section 5. AllegedSecurity Interest.
10.26 Finally,the Romanian Memorial raises the question of security interests16While the
Court has previously indicated that security interests are not unrelated to the concept of the
continental shelf1', Ukraine does not consider that security interests are a relevant
circumstance which have any realrole to play inthe present case. Certainly, Romania has not
demonstrated any such interests on its part.Moreover, Romania has failed to point out that, in
paragraph 3 of the 1997Exchange of Letters, Ukraine committed itself not to locate offensive
military devices on Serpents'Island. However,if security interests do have a role toplay,it is
clear that Ukraine'slegitirnate interests aroundSerpents'Island must be respected as well as
any purported security interests of Romania. Eliminating any continental shelf or exclusive
economic zone rights appertaining to Serpents' Island, as Romania's ctaim does, scarcely
comports with the notionof respecting both Parties'potential securityinterests.
10.27 Moreover, Romania'sclaim line cuts right through areas which have traditionatly been
exploited by Ukraine forboth hydrocarbon exploration and fishing. These matters have been
discussed in Chapter 8. Romania's claim disregards this relevant circumstance to Ukraine's
prejudice, while Ukraine's proposal reflects and respects the economic and security activities
that the Parties have historicaIly engaged in within the relevant area. Moreover, in its
Memorial, Romaniahas alluded to na competing economic interests of its own that could be
adverse1 y affected in the relevant area.
16 RM, paras. 12.14-12.19.
17 MorilimeDelimitatioin theArea betweenGreenland and JanMayen, Sudgmenr, I.C.JReporis1993,
pp.74-75,para.81, citing LibydMalta, I.C.J.Reporfs 1985,p. 4251.ara.Section6. Conclusion
10.28 For all of the reasons set out above, Ukraine's delimitation proposal achieves an
equitable result. It fully satisfies ttestof proportionality,it produces no '*cutoff" effectbut
rather respectsthe coastal projectionsof each Party, and itrespects thesecurity and economic
interests ofthe Parties within the area tobe delimited as well as the relevant circumstances in
the case. - 251 -
CHAPTER11
SWMR'EJ OF UlCRAllM'S REASONING
11.l In accordancewith the Court'sPractice Direction 11,Ukraine in this Chapterpresents a
short summary of its reasoning and conclusionsas set forth in this Counter-Memorial, and
without prejudice to the full exposition of its reasoning and conclusions in the preceding
Chapters.
) The jurisdiction of the Court, under Article 36(1) of the Court's Statute, is
founded on pariigraph 4(h)of the 1997 Exchange of Letters and the subsequent
entryinto forceof the 2003 Treaty.
(ii) TheCourt'sjurisdiction islimited tothe delimitationof the continental shelfand
exclusive economic zone between the Parties. The Court has no jurisdiction to
decide any question of territorial sovereignty, ato which there is in any event
no dispute between the Pmes, or to delimit other maritime zones, such as the
territorisea, of either oftheParties.
(iii) The Court is called upon to decide the question of the delimitation of the
continentalshelf andexclusiveeconomic zonesbetween the Parties on the basis
of internationa1 law as set out in Article 38 of the Court's Statute. The
"principles" recorded in paragraph 4(h) of the 1897 Exchange of Letters
represented "principles" on the basis of which the Parties agreed to attempt to
negotiate a delimitation agreement,but they are not binding per se on the Court
whose task isto decide thecase in accordance with international law.
(iv) Contraryto Romania'scontentions, the first segment of the maritime boundary
between the Parties which the Court iscalled upon to delimit - i.e.the segment
from theagreedfinal point of their mutud territorial sea boundary to a point due
east of Serpents' Island - was not established by the 1949 Procts Verbaux
between the Soviet Union and Romania. To the extent relevant, previous
agreements between the Parties, or their predecessors, have on1y delimited the territorialseas of the Parties and do not, therefore, constitute "agreements" on
the delimitation OFeither the continental shelf or exclusive economic zone
within the meaning of Articles 74 and 83 of the 1982 Law of the Sea
Convention. Indeed, nothing in the agreements from 1949 onwards gives any
support to Romania'salleged semi-circular arc around the south of Serpents'
Island.
(v) The 2003 Treaty confirms that the State border between the Parties has only
been delimited for their territorial seas, and that the starting point for the
Court's delimitation of the continental shelf and exclusive economic zones
between the Parties is the point identified in the 2003 Treaty having the co-
ordinates 45O05'21 "N, 30°02'27"E.
(vi) Under international law, the basic principle of delimitation for thecontinental
shelf and exclusive economic zone is expressed in the "equitable
princjpleslrelevant circumstances" rule, which the Court has identified asbeing
similar to the "equidistancelspecial circumstancest' rule applicable to the
delimitation ofthe territorial sea.
(vii) Application of this rule, both generally and in this case,entailsessentially four
steps:
a) First,itis necessary to establish a "provisionalequidistance line",which is
I.
a strictly calculated equidistanceline drawn between the basepoints on the
Parties' coasts, or their baselines, from which the limits of their territorial
seas are measured, without prejudging the existence or effect of any
potential1y relevant circumstances.
b) Second, the relevantcircumstancescharacterizing the areato be delimited
(the "relevant area") must be identified. These circumstancesare primarily
of a geographic nature, but may encompass other elements such as State
activitiesundertaken in the relevantarea and the presenceof thirdStates at
the extremitiesof that area. c) Third, in the light of the relevant circumstances so identified,it is then
necessary to determine whether, and to what extent, the provisional
equidistance line requires adjustment in order to reflect fully the relevant
circumstancesand to achieveanequitable result.
d) Fourth, the equitableness of the delimitation line arrived at by a
combination of the first three steps is then to be testby reference to the
element of proportionality to verify whether the delimitation is not unduIy
"disproportionate" and W hether it therebyachieves an equitable solution.
(viii) Inthe present case, the provisional equidistance Zincestablished pursuant to the
firststep in the delimitation processis the linthat isdepicted on Figure 7-1 of
this Counter-Memorial. That line has been constructed using the appropriate
basepoints on each Party's coasts, including basepoints on Serpents' Island.
Contrary to Romania's assertions,Serpents' Island isa full-fledged island with
a rich and long-standing history. It has supported considerable human
habitation and economic and other activities for many years and continues to
do so in the present. All ofthe maps introduced by Romania depict theisland,
and the historical sources are repletewith references to the importance of the
island.
(viii) With respect to the relevant circumstances, Chapter 8 has shown that the
overall geographical setting within which the delimitation is to be effectuated
constitutes shemost important relevant circumstance.Within therelevant area,
the relevant coasts of Ukraine are some four times longer than those of
Romania, whether such coasts aremeasured taking into account their sinuosity
or in accordance with their general direction or coastal fqades. In addition,
Ukraine has adduced considerable evidence attesting to the numerous Slate
activitiesthat Ukraine has carried out within the relevant area and the lack of
any competing Romanian activities. As for the presence of third States and
their potential maritime entitlements, thesemay be relevant for determining the
end-point of the Ukraine-Romania maritime boundary, but they are not
otherwise germane to determining the method of delimitation that produces an
equitable resultbetween theParties.In the Iight of the relevant circumstances, Chapter 9 has shown that the
provisional equidistance line must be adjusted in order to take such
circumstancesinto account, and in particularto reflect the substantial disparity
that exists between the lengthsof the relevant coasts of the Parties abuttinthe
area tobe delimited.
Romania hasintroduceda highly mficial claim linewhich neither respectsthe
appIicablelaw nor takes into account the relevant circumstances characterizing
the atea. Romania first posits a provisional equidistance line which is
erroneouslyconstructed by ignoring relevant basepoints on Ukrainian tenitory
along Serpents' Island. Romania then effective1y refashions geography by
relying on a very short stretch of iown coast represented by a basepointlying
on a man-made structure - the SuIinaDyke -and an uninhabited sand spit - the
SacaIin Peninsula -and subsequently double counts that short stretch of coast
for both the"adjacent coasts"and "opposite coasts" sector of its claim line.At
the same rime, Romania artificially excludes a substantial (630 km long)
stretch of Ukraine'scoastdirectly fronting the relevant areaand thereby fails to
take into account the relevant geographical circumstances characterizing the
area. Finally, Romania artificially adjusts its wrongly calculated provisional
equidistance line in an exercise of so-called "distributive justice" in order to
compensate for what Romania perceives to be past injustices imposed on it.
None of this is supportable in the law or on the facts, as Chapter 4 has
demonstrated.
Applicationof the proportionality test to the delimitatiolines advancedby the
Parties confirms that Ukraine'sdelimitation line fully satisfies the criterion of
proportionality while Romania'smethod does not. The lengths of therelevant
coasts of theParties fronting the relevant areastand ina relationship of 4 to l
in Ulaaine's favour. Ukraine'sdelimitation line, in turn, produces an areal ratio
of maritime areas appertainingto the Parties in the order of roughly 3 to 1 in
favour of Ukraine. This confirms that Ukraine's methodology more than
achieves an equitable result. Xncontrast, Romania's claim line produces an
arealratio of only 1.7 to 1 in favour of Ukraine, and thus is demonstrably"disproportionate", and thereby inequitable, when considered in the lightofthe
actual coastal geography. Romania'sclaim line also deprives the south-facing
coast of Ukraine of its legal maritime entitlements and produces an unjustified
cut-off effect on Ukraine's maritime entitlement to its continental shelf and
exclusive economic zone. SUBMISSIONS
In thelight ofthe factsand legal principlessetout in thisCounter-Memorial, and rejecting
Romania's claims to thecontrary, Ukraine respectfully submits that the Court adjudgeand
declare that the delimitation of the continental shand exclusive economic zones between
the Parties is a delimitation line tcourse of which, employing the Pullcovo datum (i.e.,
usingthe Krasovskyellipsoid), isas follows:
From the point identified in Article 1 of the 2003 Treatyhavinthe co-ordinates of
45O05'21" N; 30°02'27"E, the delimitation line extends in a south-easterIydirection to
Point 2, having the co-ordinatesof 44"54'00"N; 30°06'00" E, and thence to Point 3,
having the co-ordinatesof 43'20'37" N; 31"0579" E, and then continues along the
same azimuth, until the boundary reaches a point where the interests of third States
potentiallyome into play,
The course of the boundary thus described is depicted on Figure 9.3 of this Counter-
Memorial,which is reproducedhereafter forillustrativepurposes.
Respectfully submitted,
H.E.Mr. 'hion Buteiko
Agent ofUkraine before the
International Court of Justice
19May 2906 LISTOFANNEXES
(Volume 2)
Exchange of Letters dated 2 June 1997 (English translation and Romanian and
Ukrainianoriginals)
Treaty on the Relations of Good NeighbourIiness and Cooperation BetweenRomania
andUkraine1997(Englishtranslation andUkrainianoriginal)
Treaty Between Ukcaine and Romania on theRegime of the Ukrainian-Romanian
StaceBorder, Collaboration and Mutual Assistance in BorderMatters 2903 (English
translatioandUkrainian original)
NoreverbaleNo.72122-431-2399from the Ministry of Foreign Affairs of Ukraine to
the Ministry ofForeign Affairs of Romadated 18October 2002
Sailing Directions of theBlack SeaandtheSea of Azovfor Waters of Ukraine, XGev,
2005 (English translatand Ukrainianoriginal)
Extract from the Resolution otheCabinet of Ministers of Ukraine No. 415 dated
5 June1993(English translation andUkrainian original)
Decision No. 197-XXTJ of the Odesa Regional Council dated 13 February 1998,
Decision No. 8441331C ofthe Executive Committee of the Odesa Oblast Soviet of
Worhng People Deputies dated 29 November 1965, Decision No. 149-XXIIIof
Vylkovo Town Council dated 22 November 2001, Decision No. 167-XXTII-Xof
Kilia District Council dated 27 November 2001, DecisNo. 393-XWII of Odesa
Regional Council dated 27 December 2001 and Resolution No. 3002-111of the
SupremeRada of Ukraine dated 17January 2002 (English translatiand Ulcrainian
originals)
G. Popa-Lisseanu, RamanicaH .istoricP ahilologi cndlArchaeologi caldies,
Publications of School Society House, Subsidiary LibrNry48, Bucharest, 1925,
pp. l15and 119-120(English translation and Romanianoriginal)
Information Reporton ResearchofDrinkingUndergroundWaters on ZrniinyiIsland
in 2002-2004,Dnipropetrovsk, 2004 (English translation and Ukrainianoriginal)
R.]. Calinescu, "InsulaSerpilor. Schita monografica", inArzaleleDobrogeiAnulXII,
Cernauri, 1931,pp47, 53and 57 (English translatand Romanian original)Appendix to Letter No. 111295of theUkraine National Academy af Science dated
30 March2005 (EnglishtranslationandUkrainian original)
TheBlack Sea and Sea of Azov Sailing Dtrecrioras,FourthEdition,St Petersburg,
1903,pp. 64-65 (Englishtranslationand Russianoriginal)
The Black Sea Sailin girections,Seventh Edition, Leningrad, 1931, pp.47-48
(Englishtranslation andRussianoriginal)
The Black Sea Sailing Direcrions, 1954, p. 76 (English translation and Russian
original)
Enciclopedia Geografzca A Rornalziei,Hditia a In-a, Bucuresti, 2002, p. X066
(Englishtranslation andRomanian original)
Sailing[Directions] othe Black Sea, St Petersburg,1996,p. 539 (English translation
and Russianoriginal)
Agreement Between theGovernment of theRepublic of Turkey and theGovernment
of the Union of Soviet Socialist Republics Concerning the Delimitation of the
Continental Shelf Between theRepublicof Turkey and the Union of Soviet Socialist
Republics in the Black Sedated 23 June 1978,U.N.Treaty Series
Agreement Between the Republic of Bulgaria and the Republic of Turkey on the
Determination of theBoundary in theMouth Areaof theResovskalMutludere River
andDelimitation of theMaritime Areas Between the Two Statesin the BlackSea
dated4December 1997
Interview with Vietnam's Foreign Mrnister Published on the Thanhnien News
Website on 7 July2004
Zou Keyuan, "The Sino-VietnameseAgreementon Maritime Boundary Delimitation
in the Gulfof Tonkin", Ocean Development andInternational Law, Vol. 36, 2005,
pp. 13-24
(Volume3)
Exchangeof Notes Betweenthe Union of Soviet SocialistRepublics andRomania on
the Peaceful Settlementof Conflict Related to Bessarabia andtheNorthern Part of
Bukovina dated 26-28 June 394, CollectionofValid Treaties, Agreements arad
Conveabions Concluded by the USSR with Foreign States, Issue X, pp. 28-31,
No. 386 (Englishtranslations andRussian originals)Declaration ofthe Parliament of Romania Concerning theMolotov-Ribbentrop Pacr
dated 24 June 1991 and on the Referendum in Wkraine dated 29 November and
1 December 1991 and Statement to Romanian Senate dated 4 December 1995
(Melescanu) (EngIishtranslationsand Romanian originals)
Treaty of Peacewith Romania, 10February 1947,U.N.Treaty SeriesNo. 645
Protocol ConcerningAdjustment of the Traversal ofthe StateBorder LlneBetween
the Union of theSoviet Socialist Republicsand the Romanian People's Republic
dated 4 February 1948 and AnnexedMaps,Collection ofValid Treaties,Agreements
and Co~aventions Concluded by the USSRwith Foreign States, Issue XIII, pp. 266-
269,No. 519 (English translation anRussianoriginal)
Nodeverbale No. H(01)/2805) from the Ministry of Foreign Affairs of Romania to
the Embassy of Ukraine in Bucharest dated 28 July 1995 (English translation and
Ukrainian original)
Note verbale No. 15-39151015from theMinistry of Foreign AffairsofUkraine to the
Ministry of Foreign Affairs of Romaniadated 7 November 1995 (English translation
and Ukrainian original)
Protocol dated23 May 1948 (English translationand Russian original)
Description Protocol on the Traversd of the State BorderLine between the Unioof
Soviet Socialist Republicand the RomanianPeople'sRepublicdemarcatedin 1948-
1949 dated27 September 1949, Vol. 3, published by theMixedSoviet- Romanian
Commission on StateBoundary Demarcation Between the USSR and the RPR
(English translatioaridRussian original)
Protocol of Boundary Mark No. 1438 (buoy) dated 15 March 1949, PP-oaocolo sf
Boundaly Marks of the State Boundary bemeen the Union of Sovied Socialist
Republics and the Romanian People's Republic, Demarcated in 1948-1949,
Nos. 1230-1439, Vol. VI, published by the Joint Sovie-Romanian Commission on
the Demarcation of the State Boundary Between the USSR and the WR (English
transIationand Russianoriginal)
Protocol of Boundary Mark No. 1439 and General Protocol (spar buoy) dated
27 September 1949,Protocols of Boundary Marksofthe StateBoundary between the
iYr1on, of Sovied Socialist Rtpubiicx and the Romanian People's Repubiic,
Demarcated in1948-1 949, Nos. 1230-1439, Vol. VI, published by theJoint Soviet- Romanian Commission on the Demarcation of the State Boundary 'Between the
USSR andthe RPR Pnglish translation and Russianoriginai)
Treaty between the Government of the Union of Soviet Socialist Republicand the
Government of the Romanian People's RepubIic on the Regime of the Soviet-
Romanian State Boundary, 25 November 1949, Collection of EffectiT vreaties,
Agreemenrs, and Conventions concluded by the USSR with Foreign States,1957,
Issue XIV, p. 157,No566(English translation andRussian original)
Act Relating to Boundary Mark No. 1439 dated 26 December 1954 (English
translatioand Russian and Romanian orignals)
Treaty between the Government of the Union of Soviet Socialist Republicand the
Government of the Romanian People's Republic on the Regime of the Soviet-
Romanian State Boundary, Cooperation and Mutual Assistance in the Boundary
Related Matters, 27February1961, CollectionofEjrecriveTreaties,Agreements, and
Conventions concludedby theUSSR with Foreig ntates,1967,Issue XXII, p. 149,
No. 1024 (English translatioand Russian original)
Note verbale No. 618 from theEmbassy ofUkraine inRomania to the Ministry of
Foreign Affairs in Ukraine dated 22 April 1993 (English translatioand Ukrainian
original)
Noreverbale No.DPU1371193 from the Ministry of Foreign Affairs of Ukraineto the
Embassy of Romania dated 31 May 1993 (English translation and Ukrainian
original)
Ukraine's Succession Act l99 l (Englistranslationand UkrainEan original)
Note verbale No. C26131 18 from the Mnistry of Foreign Affairsof Romania to the
Embassy of Ukraine in Bucharest dated 17 June 2003 (English translation and
Ukrainian and Romanian originals)
Note verbale No. E W-113559from the Ministry ofForeign Affairsof Romania to
the Embassy of Ukraine in Bucharest dated 27 May 2004 (English translation and
Ukrainian and Romanianoriginals)
39. Note vevbale No. 72122-432-2337from the Ministry of Foreign Affairsof Ukraine to
\
i the Ministry ofForeign Affairs of Romania dated 30 June 2003 (English &anslation
1 and Ukrainian original)
h
YNoreverbale No. 72/22-446-3775 from the Ministryof Foreign Affairsof Ukraine to
the Ministry of Foreign Affairs of Romania dated 22 July 2004 (English translation
and Ukrainian original)
Letter from theRomanianPermanentMissionto theUnited Nations to the Secretary
- General dated 18 June 1997Annexing theGeographical Co-ordinatesof the Points
Between Which RomaniahasDrawn itsStraightBaselines (Englishversion)
The International Chart Series INTl Symbols and Abbreviations Terms Used on
Charts,The International Hydrographic Organisation, Monaco, 1992
Turkish Nautical Charts of the Black Sea, publishedin 1989 (new edition 2003),
1993and2000
British Admiralty Chart No. 2232 Black Sea- Romania and Ukraine: Constanra to
Ydta, publishedin 1995and reissuedin 2004
RomanianNauticalChartof the Black Sea,published in 1994
(Volume 4)
Statuteof Ukraine Concerningthe State Frontier dated4 November 1991, BulZerin of
the VerkhovnaRada, 1992, No. 2, p. 5 et seq. (English translatioand Ukrainian
original)
Law of Ukraine on the Exclusive (Marine) Economic Zone dated 16 May 1995,
Bulletinof the Verkhovna Rada, 1995,No. 21, p. 152 et seq. (Englishtranslatioand
Ukrainianoriginal)
Ancient Greek Sites on the Northwestern Coast of the Black Sea, Hellenic
Foundation for Culture, OdesaBranch
M. Koehler, "Mirnoire sur les iles etla course consacrkes Achille dans Tepont-
Euxin" and attached map "carte de I'ile de Leuck, aujourd'hui Ilan-Adassi", in
Mknzoires de 1'Acadimi.e Impkriale des Sciences de St. Peter~bourg, Tome X,
pp. 531-534,556-559,562-564, 566-571,599-615
E.D. Clxke, Travels in VariousCountries of Europe, Asia andAfrica Th,ird Edition,
Printed forT.Cadell and W.Davies Strand,London, 1813,pp. 648 -650
Memoirs, Odesa Society, Antique Stories,Vol. 11,Part I,Odesa, 1848 (English
translationandRussianoriginal)S.B.Okhotnikov, Odesa National University,NotesofsheFacully ofHisrory, Odesa,
1996,pp.46-59 (English translatioand Russianoriginal)
ZvniinyIsland: Yesterday,Today,TomorrowM , useumof Odesa (English translation
and Russianoriginal)
E. Taitbout de Marigny, Povtulan de la Mer Noire et de la Mer d'Azov ou
Descriptiondes c8tes de ces deu mers d l'rasagdes navigateurs,Odesa, 1830,pp.
112-114
Brochuresof the Museumof Odesa andPictures of the Artefacts (English translation
andUkrainian and Russian originals)
S.B. Okhotnikov and A.S. Ostsoverkhov,"Anchorage of Achilles' Sanctuaryon
LRuke(Zmiinyi) Island",in Archaeology Science Journal, Ukrainian Academy of
Science - lastituteuofArchaelogy, Kyiv, 2002, No. 2 (English translation and
Ukrainian original)
I.V. Tunkina, RussianScienc oen ClassicaAntiquities ofzheRussian South {XVZJ-
Mid XIX Centuries),St. Petersburg, 2002,p. 401-450 (English transIation and
Russian original)
Odesa Regional State Administration- CulturalHeni tage Protection Department,
Protection and Research of the Monuments ofArchaeology in Odesa Oblast
(Province) Issue I, Odesa 1999, p. 25-27 and 68-69 (English translation and
Ukrainian original)
Protocole No.914, Protocole No.915 du 29 Novembre 1920 andProtocole No. 971
des 10 et 11 Mai 1923 in The Archive of Galats, theFund of the European
Commissio nf thDanube
D.K. Steklescu, "Insula Serpilor,azil pentru deportati police", inAcfiauvtea,
25March1998Pnglish translation ofrelevantexcerptand Romanian original)
P. Dogam, Serpents' Island inthe Way ofShark, Bucharest, 1996, p. 69 (English
translatioand Romanian original)
Infortnafia22 March1938(English translationand Romanianoriginal)
Curenful,2 1Mmh 1938(English translation and Romanianoriginal)
Dutse Alexandru "Lighthouses Belonging to the European Danube Commission
(EDC) and Located in the Danube Delta and on Zmiinyi Island (1856-1939)",Extract from the AnnuaI CollectionAssociati oo nrakfiov Povit Histo'ryVol. VIJI,
pp. 105-110,Ploieshti,1996 (English translatioand Romanian original)
Extract "Serpents'IslandLighthouse"from Lighthouses HisroricalRecords (English
translationand Ukrainianoriginal)
DocumentEvidencingthe Layout ofthe Lighthouse (English translation and Russian
original)
Resolution of theCabinetofMrnisters ofUkraine No. 1009 dated 1X December 1995
English translationand Ukrainianoriginal)
Documentsfor Meeting of Cabinet of Mtnisters of Ukraine Regardmg Problems of
Developmentof Zmiinyi Island, and Enclosure (1998 Information Concerning the
Implementationof the Cabinet of UkxaineRegulation No. 1114 of S October 1997)
(Englishtranslation and Ukrainian original)
Resolution No. 652 of the Cabinet of Ministers of TTk.raajn dated 18 June 1996
(Englishtranslationand Ukrainian original)
Resolution No. 1114 of the Cabinet of Ministers of Ukraine dated 8 October 1997
(Englishtranslationand Ukrainian orjgjnal)
Direction No. 568-rof the Cabinet of Ministersof Ukraine dated 13December 2001
English translationand Ukrainian original)
Direction No. 76-r of the Cabinet of Ministers of Ukraine dated 19 February 2002
(Englishtranslationand Ukrainian original)
Information Concerning the Fulfilment of the Complex Program of the Further
Development of theInfrastructureand the Realization oftheEconomic Activities on
Zmiyinyi Island and the Continental Shelffor the Period of 2.002-2004,The State
Regional Administration Odesa, the Central Administrative Board of Economy,
November 2004 (English translation and Ukrainian original)
Resolution No. 713 of the Cabinet of Ministers of Ukraine dated 31 May 2002
(Englishtranslationand Ukrainianoriginal)
Photos of Installations, Artefacts, FauandFlora an Serpents'Island
Order No, 706 of the Ministry of Education and Sciences of Ukraine dated
13December 2002, and "Principles on the Research Station'Zmiinyi Island'of the Mechnikov's Odesa National University (RS2 1 of ONU)", Kyiv, 2002 (English
translation andUkrainian orignal)
77. PIanof Subjects of Research ActivitiesFinanced out of Funds othe State Budgetby
the MinistryofScience andEducationof Ukraine on 2003 for 1.1.Mechnikov Odesa
NationaI University agreed on the 24 Suy 2003 mglish translation and Ukrainian
original)
I . (Volume S)
78. Order No. 54 of the Ministry of Natural Environment Protection of Ukraine dated
25 January 2005, and Regulation No. 54 on the General Zoological Reserve of
National Importance "Island Zmiinyi" dated 27 January 2005 (English translation
andUkrainian original)
79. Pledge of Protection No. 6 by Ostrivne Odesa Utility Company dated 10 October
2003 (English translatioand Ukrainian original)
80, Decree No. 1341198of the President of Ukraine dated 9 December 1998 and
Relevant"Provisions"(Englishtranslation and Ukrainian original)
81. Direction No. 5351a-2004 of the Odesa Regional State Administration dated 12 July
2004 (Englishtranslation andUkrainian original)
82. Order of the Ministry for Culture and Arts of Ukraine No. 393 About the State
Registry For National Heritage dated 15 June 1999 (English translation and
Ukrainian original)
83. PamiatkyUkraiiny:Is~uriiaikultura,2/2002,YenrXYXII,Issue2(127)~nglish
translation andUkrainianoriginal)
84. AnalyticalBrief on the Implementation of the Comprehensive Program for Further
Development of the Infrastructure and Conduct of Economic Activities on Zmiinyi
Islandandon the Continental Shelf(English translation and Ukrainianoriginal)
85. List of the Island'sFlora,FaunaandFish Species (English translations andUkrainian
originals)
86. Docunlents Showing theProgress of the ScientificWork Done in Connectionwith
Serpents'Island's Marine Ecosystem in 2064 (English translation and Ukrainian
original) 87. Resolution No. 111-XXIV of the Odesa Regional Council dated 10 January 2003
English translationand Ukrainian original)
88. Articles of Association of Ostrivne, Odesa Regional State Administration dated
22 March 2003 (EngIishtranslation and Ukrainianoriginal)
89. Decree No. 7001A-2003of the Odesa Regional State Administrationdated 29August
2003 (English translationand Ukrainian original)
90. "Plan for Withdrawing of the WluainianArmed Forces Elements from Zmiinyi
Island", Approved by the Ministry of Defence of Ukraine on 18 May 2002 and
Annexes(Organizational Structure)1-9(English translation and Ukrainianoriginal)
91. DirectionNo. 2779 of the Cabinet of Ministers of Ukraine dated30 May 2002 and
I
SubsequentResolutions (Englishtranslation and Ukrainian original)
92. Order No. 061 of the Chief Executive of the StateCommittee for theState Boundary
Protection - Commander of the Ukraine's FrontierTroops dated 13 July 2994 and
Order No. 073 of the H-leadState Committee on Protection of the State Border of
Ukraine dated 20 August 2002 (English translatioand Ukrainian original)
Documents Concerning theDesign of the Achilles Sanctuary Memorial Sign dated
2004(English translation and Ukrainianoriginal)
94, Photosof AvalBank on Serpents'Island
95. Documents Relating to theOpening of a Branch ofBank Aval on Serpents'Island
96. Letter from Ostrjvne Odesa Oblast Municipal Enterprise to Oleksandr
MykhaylovychHordiyenko, Chiefof the MainDepartment of Economy,Oblast State
Administration dated 5 March 2005, Enclosing Transport Communications with
Serpents'Island for 2054(Englishtranslation andUkrainian original)
97. License Agreement between Ukrainian State Committee on Geology and the
Utilization of Mineral Resources and Crimean Petroleum Company for theDelphin
blockdated 1993 (English translationand Ukrainian originals)
l
98. License issued to Chornomornaftogaz by the Mnistry of Ecology and Natural
Resources of Ukraine dated 12 October 2091 for the OEympiiskaBiock (English
l translationand Ukrainian original) 99. License issued to Chornomornaftogaz by the Ministry of Ecology' and Natural
Resources of Ukraine dated 12 August 2003 for the Gubhna Block (English
~ translation and Ukrainianoriginal)
l 100. 3eremy Benton, Exploration History of the Black Sea province, in Regional and
Petroleum Geology of the Black Sea and Surroundin Rgegion, Edited by
A.C. Robinson, AmericanAssociationof PetroleumGeologists 1997,pp. 8-9
Note verbale No. C2313341from the Ministryof Foreign Affairs of Romania to the
Embassy of Ukraine in Bucharest dated 2 July 2001 (English translationand
Romanianoriginal)
Note verbale No. UB-12-723 from the Embassy of the Republic of Bulgaria in
Ukraine to theThird Territorial Directoratof the Ministry of Foreign Affairsof
Ukraine dated 3 October 2002 (English translationand Ukrainianoriginal)
Note verbale No. 613123-400-5'621 from the Ministry of Foreign Affairs of Ukraine
to the Embassy of the Republic of Bulgaria in Ukraine dated 19 November 2002
(Englishtranslationand Ukrainian original)
Note verbale No. 15-9051015from theMinistry of Foreign Affairs oUkraine tothe
Embassy of Turkey in Ukraine dated 6 March 1997 (English translation and
Ukrainian original)
Note verbale No. 145197 from theEmbassy of theRepublic of Turkey totheMinistry
of Foreign Affairs of Ukraine dated 12 March 1947 (English translation and
Ukrainian original)
Communique' on the Incidents of Illegal Poach Fishing Committed by Turkish
Fishing Boats Within the Exclusive (Maritime) Economic Zone of Ukraine dated
15January 1998 (English translatioand Ukrainian original)
Letter from the Ministry of Foreign Affairs of Ukraineto the Ministry of Foreign
Affairs of Turkey dated 19 January 1998 Enclosing the Official Statementdated
16January 1998 andLetterfrom theMinistry of Foreign Affairs of Ukraine to the
Turkish Embassy in EClevdated 16 January 1998 Enclosing the Same Statement
(English translation and Ukrainian original)
Note verbale No. 9781!_@10?7-00from the Ministry of Foreigr?Affairs of Ukraine
to the Embassy of the Republic of Turkey in the Ukraine dated 7 February 2000
(English translatioand Ukrainian original)Note verbale No. 7'2122-446-1 134 from the Ministry of Foreign Affairs of the
Ukraineto the Ministry of Foreign Affairs ofthe Republic of Turkey dated 32 May
2002 (EngIishtranslation andUkrainian originat)
Note verbale No. 211/23-171from theMnistry of Foreign Affairs of theUkraine to
the Embassy of theRepublic of Turkeyin the Ukraine dated 5 April 2003 (English
translation and Ukrainian original)
Exchange of Notes Constituting An Agreement Between the Government of the
Republic of Turkey and theGovernment of the Unionof Soviet Socialist Republics
on the Delimitation of theExclusive Economic Zone of the Two Countries in the
Black Sea dated 23 December 1986and 6February 1987, U.N.TreatySeries
Listof Namesfor Serpents'Island
Agent's Certification
Counter-memorial of Ukraine