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INTERNATIONAL COURT OF JUSTICE CASE CONCERNING MARITIME DELIMITATION IN THE BLACK SEA (ROMANIA v. UKRAINE) MEMORIAL SUBMITTED BY ROMANIA 19 AUGUST 2005 TABLE OF CONTENTS CHAPTER 1 INTRODUCTION 5 (1) The dispute submitted to the Court 5 (2) The Court’s jurisdiction over the dispute 5 (3) Summary of Romania’s Position 9 (4) The structure of this Memorial 11 PART I GEOGRAPHICAL, HISTORICAL AND DIPLOMATIC BACKGROUND 13 CHAPTER 2 THE GEOGRAPHICAL SITUATION 14 (1) The general geographical setting 14 (2) Brief introduction on Serpents’ Island 17 CHAPTER 3 THE HISTORICAL BACKGROUND 20 (1) Earlier period 20 (2) The period 1700-1939 20 (3) Serpents’ Island in and after World War II 27 (4) The Events of 1948 29 CHAPTER 4 MARITIME BOUNDARY NEGOTIATIONS AFTER 1948 31 (1) Introduction 31 (2) Negotiations and agreements concluded with the Soviet Union 31 (a) The land border and the maritime boundary around Serpents’ Island 31 (b) Subsequent continental shelf and exclusive economic zone negotiations with the Soviet Union 43 (3) Negotiations with Ukraine following its independence 43 (a)The 1997 treaties 43 (b) The 2003 Border Regime Treaty 45 (c) Negotiations in relation to the continental shelf and the exclusive economic zones 47 (4) Conclusions 49 CHAPTER 5 THE INFLUENCE OF HISTORY 51 CHAPTER 6 EXISTING DELIMITATIONS IN THE BLACK SEA 61 (1) Introduction 61 (2) Delimitation Agreements with and between third States 63 (a) Turkey/USSR (Ukraine, Georgia, Russian Federation) 63 (b) Turkey/Bulgaria 65 (3) Relevance of other delimitations to the Court’s task 69 PART II THE APPLICABLE LAW AS AGREED BY THE PARTIES 73 CHAPTER 7 APPLICABLE BILATERAL TREATIES 74 (1) Paramountcy of agreement in maritime delimitation 74 2 (2) Relevant agreements between Romania and Ukraine 78 (a) The Romanian-Soviet Proces Verbaux concluded in 1949, 1963 and 78 1974 (b) The Treaty on Relations 79 (c) The Additional Agreement 80 (d) The 2003 Border Regime Treaty 81 (3) Conclusions 82 CHAPTER 8 THE PRINCIPLES IDENTIFIED IN THE ADDITIONAL AGREEMENT 83 (1) Introduction 83 (2) Article 121 of the 1982 UNCLOS 84 (a) The origins of Article 121 84 (i) The travaux préparatoires of the 1982 UNCLOS 84 (ii) Romania’s Declaration concerning Article 121 91 (b) Significance of the applicability of Article 121 94 (c) Article 121 in the jurisprudence of this Court and other tribunals 95 (3) The principle of equidistance: adjacent and opposite coasts 98 (4) The principle of equity and the method of proportionality 102 (5) The principle of non-contestation of territory 108 (6) The principle of taking into account special circumstances 108 (a) The provisional equidistance/median line and special circumstances 110 (b) Islands as a special circumstance 113 (i) Judicial and arbitral decisions 114 (ii) State practice 122 (iii) Conclusions 127 (c) The enclosed nature of the Black Sea as a special circumstance 128 (7) Conclusions 128 PART III THE EQUITABLE SOLUTION 130 CHAPTER 9 RELEVANT COASTS AND RELEVANT AREAS 131 (1) Introduction: the two sectors of delimitation 131 (2) Determination of the relevant coasts 134 (3) The relevant area 139 CHAPTER 10 SERPENTS’ ISLAND AS A ROCK WITHIN THE SCOPE OF ARTICLE 121(3) OF THE 1982 UNCLOS 141 (1) Introduction 141 (2) The meaning of the term “rocks” in Article 121(3) 142 (i) Serpents’ Island is a rocky formation 146 (ii) Serpents’ Island is devoid of water sources other than rainfall and practically devoid of soil, vegetation and fauna 154 (iii) Serpents’ Island is incapable of sustaining human habitation 163 (iv) Serpents’ Island is incapable of sustaining any economic life of its 173 own (3) Ukraine recent activities on Serpents’ Island cannot change its qualification as a rock within the scope of Article 121(3) 179 (4) Conclusions 193 3 CHAPTER 11 THE MARITIME BOUNDARY ACCORDING TO THE APPLICABLE LAW 195 (1) Introduction 195 (2) Sector 1: the boundary between adjacent coasts – from Point F around Serpents’ Island and to the median line 195 (a) Introduction: the primacy of agreement in maritime delimitation 195 (b) The agreed boundary around Serpents’ Island 198 (c) Confirmation of the maritime boundary following the 12 nm arc around Serpents’ Island in official maps produced by the USSR and Ukraine, by Romania and by third States 206 (d) Agreement as to the applicability of Article 121 (3) of the 1982 UNCLOS (paragraph 4 (a) of the Additional Agreement) 213 (e) The maritime boundary around Serpents’ Island would be the same independent of any agreement between the Parties 214 (f) The point of departure of the maritime boundary from the 12 nm arc around Serpents’ Island 215 (g) The course of the boundary beyond Point X 217 (h) The course of the boundary in Sector 1 223 (3) Sector 2: The boundary between opposite coasts (Romania/Crimean Peninsula) 225 (a) The provisional median line in Sector 2 225 (b) The location of Point T – the turning point between Sector 1 and Sector 2 229 (c) Identifying relevant/special circumstances in Sector 2 229 (d) The course of the boundary in Sector 2 229 (4) The maritime boundary between the exclusive economic zones and the continental shelf of Romania and Ukraine in the Black Sea 231 CHAPTER 12 EQUITABLENESS OF THE DELIMITATION LINE 233 (1) Introduction 233 (2) The proportionality test 233 (3) The principle of no cut-off 234 (4) The necessity to protect security interests of States 236 SUMMARY OF CONCLUSIONS 238 SUBMISSION 240 LIST OF ANNEXES 242 LIST OF MAPS 251 4 CHAPTER 1 INTRODUCTION (1) The dispute submitted to the Court 1.1 This Memorial is filed in accordance with the Court’s Order of 19 November 2004. In conformity with article 49, paragraph 1 of the Rules of the Court, it sets forth the grounds of fact and of law on which the claim contained in Romania’s Application, filed in the Registry of the Court on 16 September 2004, is based. 1.2 The geographical configuration of the coasts of the two States facing the Black Sea is shown on Figure 1 (page 8 of this Memorial). Also shown is Serpents’ Island (in Romanian Insula Şerpilor, in Ukrainian Oстров Зміїний), a small featureless rock some 20 nm off the Danube delta, which was detached from Romania in 1948 in circumstances described below and which now belongs to Ukraine. 1.3 The present dispute concerns the delimitation of the boundary of the exclusive economic zones and continental shelf appertaining to Romania and Ukraine respectively in the Black Sea. (2) The Court’s jurisdiction over the dispute 1.4 The Court’s task in the present case is framed and determined by three treaties concluded between the two States in the period since 1997. They are: • the Treaty on the Relations of Good Neighbourliness and Co-operation between Romania and Ukraine, signed at Constanţa, on 2 June 1997 1 (hereafter the “Treaty on Relations”);TPF F PT 1 TP PT Treaty on the Relations of Good Neighbourliness and Co-Operation between Romania and Ukraine, signed at Constanţa, on 2 June 1997; 2159 United Nations Treaty Series 335 (Annex RM 1). 5 • the Agreement Additional to the Treaty on Relations, concluded by exchange of letters of the Ministers of Foreign Affairs of the two States, 2 also dated 2 June 1997 (hereafter the “Additional Agreement”);TPF F PT • the Treaty between Romania and Ukraine on the Romanian-Ukrainian State Border Regime, Collaboration and Mutual Assistance on Border Matters, signed at Cernăuţi, on 17 June 2003 (hereafter, the “2003 3 Border Regime Treaty”).TPF F PT The first two agreements entered into force simultaneously on 22 October 1997. 4 The 2003 Border Regime Treaty entered into force on 27 May 2004.TPF FPT 1.5 Article 4(h) of the Additional Agreement provides that: “If these negotiations shall not determine the conclusion of the above-mentioned agreement [for the maritime boundary] 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.” 1.6 Accordingly, pursuant to Article 4(h), there were two preconditions which had to be fulfilled before the dispute could be referred to the Court. These were, firstU ,U that the negotiations had not resulted in an agreed delimitation of the maritime boundary between the two States within two years since their initiation, and, secondU ,U that the treaty relating to the border regime between the 2 TP PT Agreement Additional to the Treaty on the Relations of Good Neighbourliness and Co- Operation between Romania and Ukraine, concluded by exchange of letters between the Ministers of Foreign Affairs of Romania and Ukraine, done on 2 June 1997; 2159 United Nations Treaty Series 357 (Romanian letter), 363 (Ukrainian counterpart) (Annex RM 2). 3 TP PT Treaty between Romania and Ukraine on the Romanian-Ukrainian State Border Regime, Collaboration and Mutual Assistance on Border Matters, signed at Cernặuţi, on 17 June 2003 (Annex RM 3). The Treaty was registered with the Secretariat of the United Nations on 10 September 2004 by Romania, and was assigned registration no.
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