In its Application, Romania seeks to found the jurisdiction of the Court on the provisions of paragraph 4 (h) of the Additional Agreement constituted by an exchange of letters of 2 June 1997 between the Ministers for Foreign Affairs of Romania and Ukraine. The Additional Agreement was concluded with reference to Article 2 of the Treaty on the Relations of Good Neighbourliness and Co-operation between Romania and Ukraine, signed on 2 June 1997 (hereinafter the "Treaty on Good Neighbourliness and Co-operation"). Both instruments entered into force on 22 October 1997.
For Romania : H.E. Mr. Bogdan Aurescu,
Mr. Alain Pellet,
Mr. Cosmin Dinescu,
Mr. Daniel Muller,
Mr. James Crawford,
Mr. Vaughan Lowe,
Mr. Simon Olleson.
For Ukraine: H.E. Mr. Volodymyr A. Vassylenko,
Mr. Rodman R. Bundy,
Sir Michael Wood,
Mr. Jean-Pierre Queneudec,
Ms Loretta Malintoppi.
"Reserving the right to complement, amend or modify the present request in the course of the proceedings, Romania requests the Court to draw in accordance with the international law, and specifically the criteria laid down in Article 4 of the Additional Agreement, a single maritime boundary between the continental shelf and the exclusive economic zones of the two States in the Black Sea."
On behalf of the Government of Romania,
in the Memorial :
"For the reasons set out above, the Government of Romania respectfully requests the Court to draw a single maritime boundary dividing the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea, having the following description:
— from Point F, at 45° 05' 21" N, 30° 02' 27" E, on the 12 nm arc surrounding Serpents' Island, to Point X, at 45° 14' 20" N, 30° 29' 12" E,
— from Point X in a straight segment to Point Y, at 45° 11' 59" N, 30°49'16"E,
— then on the line equidistant between the Romanian and Ukrainian adjacentcoasts,fromPointYtoPointT,at45°09'45"N,31°08'40"E,
— and then on the line median between the Romanian and Ukrainian opposite coasts, from Point T to Point Z, at 43° 26' 50" N, 31°20' 10" E."
in the Reply :
"For the reasons set out in the Memorial, as well as in this Reply, Romania respectfully requests the Court to draw a single maritime boundary dividing the maritime areas of Romania and Ukraine in the Black Sea, having the following description :
(a) from Point F, at 45°05'21" N, 30°02'27" E, on the 12 nm arc surrounding Serpents' Island, to Point X, at 45° 14' 20" N, 30° 29' 12" E,
(b) from Point X in a straight segment to Point Y, at 45°11'59" N, 30°49'16" E,
(c) then on the line equidistant between the Romanian and Ukrainian adjacent coasts, from Point Y to Point T, at 45°09'45" N, 31°08'40" E,
(d) and then on the line median between the Romanian and Ukrainian opposite coasts, from Point T to Point Z, at 43° 26' 50" N, 31°20'10" E."
On behalf of the Government of Ukraine,
in the Counter-Memorial and Rejoinder :
"In the light of the facts and legal principles set out in [Ukraine's Counter Memorial and Rejoinder], and rejecting Romania's claims to the contrary, Ukraine respectfully submits that the Court adjudge and declare that the delimitation of the continental shelf and exclusive economic zones between the Parties is a delimitation line the course of which, employing the Pulkovo datum (i.e., using the Krasovsky ellipsoid), is as follows :
From the point identified in Article 1 of the 2003 Treaty having the coordinates of 45° 05' 21" N; 30° 02' 27" E, the delimitation line extends in a south-easterly direction to Point 2, having the coordinates of44°54'00" N; 30°06'00" E, and thence to Point 3, having the co-ordinates of 43° 20' 37" N; 31° 05' 39" E, and then continues along the same azimuth, until the boundary reaches a point where the interests of third States potentially come into play."
On behalf of the Government of Romania,
at the hearing of 16 September 2008 :
"Romania respectfully requests the Court to draw a single maritime boundary dividing the maritime areas of Romania and Ukraine in the Black Sea, having the following description:
(a) from Point F, at 45°05'21" N, 30°02'27" E, on the 12 nm arc surrounding Serpents' Island, to Point X, at 45°14'20" N, 30°29'12" E;
(b) from Point X in a straight segment to Point Y, at 45°11'59" N, 30°49'16" E;
(c) then on the line equidistant between the relevant Romanian and Ukrainian adjacent coasts, from Point Y, passing through Point D, at 45° 12'10" N, 30° 59'46" E, to Point T, at 45° 09' 45" N, 31°08' 40" E;
(d) and then on the line median between the relevant Romanian and Ukrainian opposite coasts, from Point T - passing through the points of 44°35'00" N, 31°13'43" E and of 44°04'05" N, 31°24'40"E, to Point Z, at 43°26'50" N, 31°20'10"E."1
On behalf of the Government of Ukraine,
at the hearing of 19 September 2008 :
"For the reasons given in Ukraine's written and oral pleadings, Ukraine requests the Court to adjudge and declare that the line delimiting the continental shelf and exclusive economic zones between Ukraine and Romania is as follows :
(a) from the point (Point 1) identified in Article 1 of the 2003 Treaty between Ukraine and Romania on the Regime of the Ukrainian-Romanian State Border, having the co-ordinates of 45° 05' 21" N; 30° 02' 27" E, the line runs along a straight line to Point 2, having the co-ordinates of 44° 54' 00" N; 30°06'00"E; then
(b) from Point 2, the line runs along an azimuth of 156° to Point 3, having the co-ordinates of 43° 20' 37" N; 31° 05' 39" E; and then continues along the same azimuth until it reaches a point where the interests of third States potentially come into play.
The co-ordinates are referenced to the Pulkovo datum (i.e., using the Krasovsky ellipsoid), and all lines are loxodromes."1
"If these negotiations shall not determine the conclusion of the above-mentioned agreement in a reasonable period of time, but not later than 2 years since their initiation, the Government of Romania and the Government of Ukraine have agreed that the problem of delimitation of the continental shelf and the exclusive economic zones shall be solved by the UN International Court of Justice, at the request of any of the parties, provided that the Treaty on the regime of the State border between Romania and Ukraine has entered into force. However, should the International Court of Justice consider that the delay of the entering into force of the Treaty on the regime of the State border is the result of the other Party's fault, it may examine the request concerning the delimitation of the continental shelf and the exclusive economic zones before the entry into force of this Treaty."
"for the drawing of a delimitation line as claimed by Romania between the so-called points F and X along a 12-nautical mile segment of arc around Serpent' Island, since that portion of [the] line would delimit Ukraine's territorial sea and Romania's alleged areas of continental shelf and EEZ".
Ukraine adds that the Parties' agreement to confer jurisdiction on the Court has
"the consequence that the boundaries to be delimited by the Court must be such that, starting from the agreed terminal point of their territorial sea boundary, each Party has some zones of continental shelf and EEZ immediately to the east and south of that agreed terminal point".
Ukraine notes however that in its view "this jurisdictional question does not need to be decided because, from Point F, the line proceeds in a south-easterly direction as a line delimiting areas of continental shelf and the EEZs appertaining to each of the Parties".
"do not consider themselves inhibited from establishing maritime boundaries separating, on the one hand, the continental shelf (or the exclusive economic zone) of one party and, on the other hand, other maritime areas (including the territorial sea) of the other party".
In any event, in its view, no practical consequences flow from the Parties' divergent approaches to the Court's jurisdiction. As there is already a maritime boundary running along the 12-nautical mile line around Serpents' Island up to Point X established by bilateral agreements, even if the Court had no jurisdiction to delimit the continental shelf and exclusive economic zone of one Party from the territorial sea of the other, it would still have to take into account the agreements in force between Romania and Ukraine and the resulting maritime boundary. Thus, Romania concludes that, whether the Court has jurisdiction to perform the delimitation between Points F and X or not, this will have no influence on the drawing of a new delimitation line, which in any event will begin from Point X.
That Agreement was concluded on the same day as the Treaty on Good Neighbourliness and Co-operation between Romania and Ukraine, which in Article 2, paragraph 2, provides :
"The Contracting Parties shall conclude a separate Treaty on the regime of the border between the two states and shall settle the problem of the delimitation of their continental shelf and of economic exclusive 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 simultaneously with the signature of the Treaty. The understandings included in this exchange of letters shall enter into force simultaneously with the entry into force of this Treaty."
The Court notes that the State Border Regime Treaty was concluded on 17 June 2003, i.e., within six years from the entry into force of the Treaty on Good Neighbourliness and Co-operation, not two as originally contemplated. The 2003 State Border Regime Treaty, in its Article 1, describes the boundary line between the two Parties not only on land but also the line separating their territorial seas, "up to the point of 45° 05' 21" north latitude and 30° 02' 27" east longitude, which is the meeting point [of Ukraine's territorial sea around Serpents' Island] with the Romanian State border passing on the outer limit of its territorial sea".
Articles 74 and 83 of UNCLOS are relevant for the delimitation of the exclusive economic zone and the continental shelf, respectively. Their texts are identical, the only difference being that Article 74 refers to the exclusive economic zone and Article 83 to the continental shelf. These Articles provide as follows:
"1. The delimitation of the exclusive economic zone [the continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone [the continental shelf] shall be determined in accordance with the provisions of the agreement."
Romania states that the Parties concur in the view that the Procès-Verbaux concluded between Romania and the USSR in 1949, 1963 and 1974 are agreements which are legally binding on the Parties. Romania contends that these agreements, which establish the initial segment of the maritime boundary, should be taken into account as agreements relating to the delimitation within the meaning of Articles 74, paragraph 4, and 83, paragraph 4, of UNCLOS. Another such agreement is the 200 3State Border Regime Treaty which delimited the maritime boundary up to the outer limit of the territorial sea at the point of intersection of Romania's territorial sea with the 12-nautical mile arc drawn around Serpents' Island. According to Romania, in any event, the question as to whether or not the agreements fall within the above-mentioned category is of no consequence: they are binding on the Parties, and it is for the Court to ensure their application.
"(a) the principle stated in article 121 of the United Nations Convention on the Law of the Sea of December 10, 1982, as applied in the practice of states and in international case jurisprudence;
(b) the principle of the equidistance line in areas submitted to delimitation where the coasts are adjacent and the principle of the median line in areas where the coasts are opposite;
(c) the principle of equity and the method of proportionality, as they are applied in the practice of states and in the decisions of international courts regarding the delimitation of continental shelf and exclusive economic zones;
(d) the principle according to which neither of the Contracting Parties shall contest the sovereignty of the other Contracting Party over any part of its territory adjacent to the zone submitted to delimitation ;
(e) the principle of taking into consideration the special circumstances of the zone submitted to delimitation".
Romania also affirms that the delimitation should be carried out in accordance with the provisions of UNCLOS.
"3. Romania states that according to the requirements of equity — as it results from Articles 74 and 83 of the Convention on the Law of the Sea — the uninhabited islands without economic life can in no way affect the delimitation of the maritime spaces belonging to the mainland coasts of the coastal States."
Romania contends that, under these circumstances, Ukraine's acceptance of the reference to Article 121 as one of the principles to be applied in delimitation clearly indicates that the two States agreed in 1997 that Serpents' Island could receive no other effect in addition to those effects already produced by it on the delimitation of the territorial seas of the two Parties.
"[t]he Government of Ukraine and the Government of Romania shall 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" (emphasis added),
suggests that these principles were intended by the Parties to be taken into account in their negotiations on the maritime delimitation, but do not constitute the law to be applied by the Court. This does not necessarily mean that these principles would per se be of no applicability in the present case ; they may apply to the extent that they are part of the relevant rules of international law. The Court further notes that the principles listed in the Additional Agreement were drawn up by the Parties in 1997. The entry into force of UNCLOS as between the Parties in 1999 means that the principles of maritime delimitation to be applied by the Court in this case are determined by paragraph 1 of Articles 74 and 83 thereof.
Ukraine contends that "[n]one of the relevant Procès-Verbaux nor any other agreements say that the agreed boundary extends as far as Romania's alleged Point X", nor give any co-ordinates for such a point. This conclusion is evident from a reading of their texts.
Ukraine states that map 134 annexed to the 1949 General Procès-Verbal shows that the relevant part of the 12-mile arc around Serpents' Island extends on the arc beyond Point 1439 but without however reaching the edge of the map (there is a blank space). Ukraine maintains that nothing in the text "suggests that the relevant part of the 12-nautical-mile arc around Serpents' Island extended to the south-east or east around Serpents' Island", as contended by Romania. According to Ukraine, map 134 was intended specifically to show the boundary which had been agreed in the Procès-Verbal to which it was attached, including the endpoint of the boundary. The final point depicted on map 134 is "within a very few metres" of the point agreed in the 2003 State Border Regime Treaty as the point of intersection of the outer limits of Ukraine's and Romania's territorial seas (a difference of 93 m (north) and 219 m (east)).
"1. The State border between Romania and the [USSR], indicated on the maps annexed to the present Protocol/Annex I and II/, passes as follows :
(a) in accordance with Annex I:
[the description of the land boundary between Romania and the USSR] ;
(b) in accordance with Annex II:
along the River Danube, from Pardina to the Black Sea, leaving the islands of Tataru Mic, Daleru Mic and Mare, Maican and Limba on the side of the [USSR], and the islands Tataru Mare, Cernovca and Babina — on the Romanian side; Serpents' Island, situated in the Black Sea, eastwards from the Danube mouth, is incorporated into the [USSR]."
"as well as... all the corresponding demarcation documents, the maps of the State border... the protocols of the border signs with their draft sketches... as well as the documents of verifications of the State border line... in force on 16 July, 1990",
the date of the adoption of the Declaration on the State Sovereignty of Ukraine. The final part of the description says that the boundary
"continues, from the border sign 1439 (buoy) on the outer limit of Ukraine's territorial waters around the Serpents' Island, up to the point of 45° 05' 21" north latitude and 30° 02' 27" east latitude, which is the meeting point with the Romanian State border passing on the outer limit of its territorial sea. The territorial seas of the Contracting Parties measured from the baselines shall permanently have, at the meeting point of their outer limits, the width of 12 maritime miles."
The Article concludes with these three sentences :
"If objective modifications due to natural phenomena which are not related to human activities and that make it necessary for these co-ordinates to be changed are noticed, the Joint Commission shall conclude new protocols.
The State border line, on its whole length, shall remain unchanged, unless the Contracting Parties agree otherwise.
The elaboration of the new documents on the State border does not represent a revision of the existent border between Romania and Ukraine."
The definition of the boundary no longer includes the passage about the boundary "passing" or "going on" the exterior margin of the maritime zone "from" Point 1439. Rather the boundary continues from that point "up to" the defined point.
Paragraph 4 of Articles 74 and 83 provides that where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone and the continental shelf "shall be determined in accordance with the provisions of that agreement".
The word "agreement" in paragraph 4 (as elsewhere in the Article) refers to an agreement delimiting the exclusive economic zone (Article 74) or the continental shelf (Article 83) referred to in paragraph 1. State practice indicates that the use of a boundary agreed for the delimitation of one maritime zone to delimit another zone is effected by a new agreement. This typically occurs when States agree to apply their continental shelf boundary to the exclusive economic zone. The agreement between Turkey and the USSR applying the continental shelf boundary to the exclusive economic zone is one such example. By the same token, if States intend that their territorial sea boundary limit agreed earlier should later serve also as the delimitation of the continental shelf and/or the exclusive economic zones, they would be expected to conclude a new agreement for this purpose.
The Court observes further that the 12-mile arc around Serpents' Island is shown on a map dealing with the State border; this suggests that that arc represents simply the seaward limit of the territorial sea. Recognition by the USSR in the 1949 instruments that its State border followed the outer limit of its territorial sea around Serpents' Island does not signify that it thereby gave up any entitlements to maritime areas beyond that zone.
"the criterion for determining the relevance of any given coast is the actual relation of adjacency or oppositeness between the coasts of the parties, as well as the ability of those coasts to generate overlapping entitlements".
In response, Romania explains that, while its coast has a role to play both in relation to adjacent coasts and to opposite coasts, in the calculation of the total length of its relevant coast, each of the segments of its coast is counted only once.
The total length of the relevant Ukrainian coast, as perceived by Romania, is 388.14 km (baselines 292.63 km).
"[t]he notion that a protruding, man-made structure can be given a full effect for purposes of plotting the provisional equidistance line, while a natural feature — an island [Serpents' Island] — can simply be ignored does not comport with a proper application of the law or with equitable principles".
"For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works."
"(3) Where such structures are of excessive length (for instance, a jetty extending several kilometres into the sea), it may be asked whether this article [Art. 8] could still be applied... As such cases are very rare, the Commission, while wishing to draw attention to the matter, did not deem it necessary to state an opinion." (ILC Yearbook, 1956, Vol. II, p. 270.)
In the light of the above, the ILC did not, at the time, intend to define precisely the limit beyond which a dyke, jetty or works would no longer form "an integral part of the harbour system". The Court concludes from this that there are grounds for proceeding on a case-by-case basis, and that the text of Article 11 of UNCLOS and the travaux préparatoires do not preclude the possibility of interpreting restrictively the concept of harbour works so as to avoid or mitigate the problem of excessive length identified by the ILC. This may be particularly true where, as here, the question is one of delimitation of areas seaward of the territorial sea.
Romania argues that the first segment of the maritime boundary delimiting the maritime areas of the two States situated beyond their territorial seas was established by successive agreements between Romania and the Soviet Union : from the final point of the boundary separating the territorial seas of the two States at 45° 05' 21" N and 30° 02' 27" E, the maritime boundary passes along the 12-nautical-mile arc of the circle around Serpents' Island until it reaches a point situated on that arc at 45°14'20"Nand 30°29'12"E (see Section4). Romania contends that the maritime boundary beyond that point was never delimited between Romania and the USSR or Ukraine. Romania draws a provisional equidistance line from the final point of the land/river boundary between the two States taking into account the salient base points of the adjacent Romanian and Ukrainian coasts. These are: on the Romanian coast, the seaward end of the Sulina dyke; and on the Ukrainian coast, the island of Kubansky and Cape Burnas. As the point lying on the arc around Serpents' Island at 45°14'20" N and 30°29'12" E, is not situated on the equidistance line, but about 2.5 nautical miles to the north, the delimitation of the maritime boundary beyond this point must, in Romania's view, start by joining it to the provisional equidistance line. The line thus drawn passes through the point at 45°11'59" N and 30°49'16" E, situated practically midway between the 12-nautical-mile arc around Serpents' Island and the tripoint as between the Romanian and Ukrainian adjacent coasts and the opposite Crimean coast, situated at 45°09'45" N and 31°08'40" E. Romania contends that, from this point southwards, the delimitation is governed by the opposite Romanian and Ukrainian coasts.
(For the construction of the equidistance line see sketch-maps Nos. 6 and 7, pp. 114-115.)
"It should, however, be made clear that taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of the coastal front of eastern Greenland and that of Jan Mayen." (Judgment, I.C.J. Reports 1993, p. 69, para. 69.)
Then it recalled its observation from the Continental Shelf (Libyan Arab Jamahiriya/Malta) case :
"If such a use of proportionality were right, it is difficult indeed to see what room would be left for any other consideration ; for it would be at once the principle of entitlement to continental shelf rights and also the method of putting that principle into operation. Its weakness as a basis of argument, however, is that the use of proportionality as a method in its own right is wanting of support in the practice of States, in the public expression of their views at (in particular) the Third United Nations Conference on the Law of the Sea, or in the jurisprudence." Judgment, I.C.J. Reports 1985, p. 45, para. 58.)
In the latter case, the Court was of the view that the difference in the lengths of the relevant coasts of Malta and Libya (being in ratio 1:8) "is so great as to justify the adjustment of the median line" (ibid., p. 50, para. 68 ; emphasis added). The Court added that "the degree of such adjustment does not depend upon a mathematical operation and remains to be examined" (ibid.).
"[...] that to take into account the extent of the respective coasts of the Parties concerned does not in itself constitute either a criterion serving as a direct basis for a delimitation, or a method that can be used to implement such delimitation. The Chamber recognizes that this concept is put forward mainly as a means of checking whether a provisional delimitation established initially on the basis of other criteria, and by the use of a method which has nothing to do with that concept, can or cannot be considered satisfactory in relation to certain geographical features of the specific case, and whether it is reasonable or otherwise to correct it accordingly. The Chamber's views on this subject may be summed up by observing that a maritime delimitation can certainly not be established by a direct division of the area in dispute proportional to the respective lengths of the coasts belonging to the parties in the relevant area, but it is equally certain that a substantial disproportion to the lengths of those coasts that resulted from a delimitation effected on a different basis would constitute a circumstance calling for an appropriate correction." (Ibid., p. 323, para. 185 ; emphasis added.)
Ukraine states that only in a limited sense can the presence of third States in the vicinity of the area to be delimited be considered a relevant circumstance. However, this has nothing to do with the choice of the actual method of delimitation or the character of a sea (whether or not it is enclosed). According to Ukraine, the presence of third States may be relevant only to the extent that the Court may have to take precautions in identifying a precise endpoint of the delimitation line so as to avoid potential prejudice to States situated on the periphery of the delimitation area.
Ukraine concludes on this point that its oil-related activities are consistent with its delimitation line and should be taken into account together with the other relevant circumstances, in particular the physical geography, in order to achieve an equitable solution.
It further notes that Ukraine is not relying on State activities in order to prove a tacit agreement or modus vivendi between the Parties on the line which would separate their respective exclusive economic zones and continental shelves. It rather refers to State activities in order to undermine the line claimed by Romania.
Romania argues that Ukraine's delimitation line leads to a cut-off of Romania's maritime entitlements, in particular in the northern sector of its coast between the Sulina dyke and the Sacalin Peninsula. Romania states that the delimitation line advocated by Ukraine would make it extremely difficult for Romania to gain access to the port of Sulina and the maritime branch of the Danube, which is an important route for the transit of merchandise. In short, according to Romania, Ukraine's claimed line results in a dramatic curtailment of the maritime areas off the Romanian coast, "as if the projection of every stretch of Ukraine's coast run unobstructed in every direction while there is no opposing or adjacent Romanian territory".
"not only does Romania's line encroach upon the extension or projection of Ukraine's south-east-facing coast — the coast just above the land boundary — it also produces a cut-off effect on the projection of Ukraine's south-facing coast lying beyond Odessa".
Ukraine argues that its line fully respects the principle of nonencroachment. It reflects the geographical fact that "Ukraine's coast fronting the area to be delimited projects in essentially three directions while Romania's coast projects basically in a single direction — south-eastwards".
In Romania's view, Ukraine's delimitation line runs unreasonably close to the Romanian coast and thus encroaches on the security interests of Romania.
Romania and Ukraine have both indicated, in considerable detail, the course that their respective delimitation lines would then follow beyond the point fixed by Article 1 of the 2003 State Border Regime Treaty (see paragraph 13 above and sketch-map No. 1, p. 69). The Court notes that the Parties' positions differ in this regard.
"it is disproportion rather than any general principle of proportionality which is the relevant criterion or factor... there can never be a question of completely refashioning nature... it is rather a question of remedying the disproportionality and inequitable effects produced by particular geographical configurations or features" (Anglo-French Continental Shelf Case, RIAA, Vol. XVIII, p. 58, para. 101).
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