   COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRE| TS,
AVIS CONSULTATIFS ET ORDONNANCES

 DE
  u LIMITATION MARITIME
      EN MER NOIRE
      (ROUMANIE c. UKRAINE)

     ARRE
        | T DU 3 FE
                  u VRIER 2009

          2009
   INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

 MARITIME DELIMITATION
   IN THE BLACK SEA
      (ROMANIA v. UKRAINE)

   JUDGMENT OF 3 FEBRUARY 2009

                    Mode officiel de citation :
   Délimitation maritime en mer Noire (Roumanie c. Ukraine),
                 arrêt, C.I.J. Recueil 2009, p. 61

                        Official citation :
 Maritime Delimitation in the Black Sea (Romania v. Ukraine),
             Judgment, I.C.J. Reports 2009, p. 61

                                        Sales number
SN 0074-4441
BN 978-92-1-071059-6
                                        No de vente :   950

                          3 FE
                             u VRIER 2009

                              ARRE
                                 |T

DE
 u LIMITATION MARITIME
     EN MER NOIRE
(ROUMANIE c. UKRAINE)

MARITIME DELIMITATION
  IN THE BLACK SEA
 (ROMANIA v. UKRAINE)

                        3 FEBRUARY 2009

                          JUDGMENT

                      TABLE OF CONTENTS
                                                               Paragraphs

CHRONOLOGY OF THE PROCEDURE                                         1-13
GENERAL GEOGRAPHY                                                  14-16
PRELIMINARY LEGAL ISSUES                                           17-42
3.1. Subject-matter of the dispute                                 17-19
3.2. Jurisdiction of the Court and its scope                       20-30
3.3. Applicable law                                                31-42
EXISTING MARITIME DELIMITATION BETWEEN THE PARTIES (EFFECT OF
THE PROCÈS-VERBAUX OF 1949, 1963 AND 1974, AS WELL AS THE 1949
AND 1961 TREATIES BETWEEN ROMANIA AND THE USSR AND THE
2003 TREATY BETWEEN ROMANIA AND UKRAINE)                           43-76
RELEVANT COASTS                                                   77-105
5.1. The Romanian relevant coast                                   80-88
5.2. The Ukrainian relevant coast                                 89-105
RELEVANT MARITIME AREA                                           106-114
DELIMITATION METHODOLOGY                                         115-122
ESTABLISHMENT OF THE PROVISIONAL EQUIDISTANCE LINE               123-154
8.1. Selection of base points                                    123-149
8.2. Construction of the provisional equidistance line           150-154
RELEVANT CIRCUMSTANCES                                           155-204
9.1. Disproportion between lengths of coasts                      158-168
9.2. The enclosed nature of the Black Sea and the delimitations
     already effected in the region                               169-178
9.3. The presence of Serpents’ Island in the area of delimitation 179-188
9.4. The conduct of the Parties (oil and gas concessions, fishing
     activities and naval patrols)                                189-198
9.5. Any cutting off effect                                       199-201
9.6. The security considerations of the Parties                   202-204
THE LINE OF DELIMITATION                                         205-209
THE DISPROPORTIONALITY TEST                                      210-216
THE MARITIME BOUNDARY DELIMITING THE CONTINENTAL SHELF AND
EXCLUSIVE ECONOMIC ZONES                                   217-218
OPERATIVE CLAUSE                                                     219

                                                                       4

            INTERNATIONAL COURT OF JUSTICE

                              YEAR 2009                                          2009
                                                                              3 February
                                                                              General List
                            3 February 2009                                     No. 132

             MARITIME DELIMITATION
               IN THE BLACK SEA
                     (ROMANIA v. UKRAINE)

                             JUDGMENT

esent : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges RANJEVA,
        SHI, KOROMA, BUERGENTHAL, OWADA, TOMKA, ABRAHAM, KEITH,
        SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV ; Judges ad hoc COT,
        OXMAN ; Registrar COUVREUR.

In the case concerning maritime delimitation in the Black Sea,
between
 mania,
presented by
H.E. Mr. Bogdan Aurescu, Director General, Ministry of Foreign Affairs of
   Romania, Lecturer, Faculty of Law, University of Bucharest, President of
   the Romanian Branch of the International Law Association, member
   of the Permanent Court of Arbitration,
as Agent, Counsel and Advocate ;
Mr. Cosmin Dinescu, Director General for Legal Affairs, Ministry of For-
   eign Affairs of Romania,
as Co-Agent, Counsel and Advocate ;
H.E. Mr. Călin Fabian, Ambassador of Romania to the Kingdom of the
   Netherlands,
as Co-Agent ;
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law,

                                                                         5

  University of Cambridge, member of the Institut de droit international,
  Barrister,
Mr. Vaughan Lowe, Q.C., Chichele Professor of International Law, Univer-
  sity of Oxford, member of the English Bar, associate member of the Insti-
  tut de droit international,
Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-
  La Défense, member and former Chairman of the International Law Com-
  mission, associate member of the Institut de droit international,
as Senior Counsel and Advocates ;
Mr. Daniel Müller, Researcher at the Centre de droit international de Nan-
  terre (CEDIN), University of Paris Ouest, Nanterre-La Défense,
Mr. Simon Olleson, member of the English Bar,
as Counsel and Advocates ;
Mr. Gicu Boroşi, Director General, National Agency for Mineral Resources,

Mr. Mihai German, Deputy Director General, National Agency for Mineral
  Resources, member of the United Nations Commission on the Limits of
  the Continental Shelf,
Mr. Eugen Laurian, Counter-Admiral (retired),
Mr. Octavian Buzatu, Lieutenant Commander (retired),
Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,
as Technical and Cartographic Experts ;
Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit,
  Ministry of Foreign Affairs of Romania,
Ms Irina Nit(ă, Second Secretary, Legal Adviser, Embassy of Romania in the
  Kingdom of the Netherlands,
Ms Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation
  Unit, Ministry of Foreign Affairs of Romania,
Ms Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation
  Unit, Ministry of Foreign Affairs of Romania,
Ms Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit,
  Ministry of Foreign Affairs of Romania,
Ms Olivia Horvath, Desk Officer, Public Diplomacy Department, Ministry
  of Foreign Affairs of Romania,
as Advisers,
and
kraine,
presented by
H.E. Mr. Volodymyr A. Vassylenko, Adviser to the Minister for Foreign
   Affairs of Ukraine, Ambassador Extraordinary and Plenipotentiary of
   Ukraine, Professor of International Law, National University of Kyiv
   Mohyla Academy,
as Agent ;
H.E. Mr. Oleksandr M. Kupchyshyn, Ambassador Extraordinary and Pleni-
   potentiary of Ukraine, Deputy Foreign Minister of Ukraine,
Mr. Volodymyr G. Krokhmal, Director of the Legal and Treaty Department
   of the Ministry of Foreign Affairs of Ukraine,
as Co-Agents ;

                                                                         6

Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the
  New York Bar, Eversheds LLP, Paris,
Mr. Jean-Pierre Quéneudec, Professor Emeritus of International Law, the
  University of Paris I (Panthéon-Sorbonne),
Sir Michael Wood, K.C.M.G., member of the English Bar, member of the
  International Law Commission,
Ms Loretta Malintoppi, avocat à la Cour d’appel de Paris, member of the
  Rome Bar, Eversheds LLP, Paris,
as Counsel and Advocates ;
H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Pleni-
  potentiary of Ukraine to the Kingdom of the Netherlands,
Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales,

Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division,
  Legal and Treaty Department of the Ministry of Foreign Affairs of
  Ukraine,
Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in
  the French Republic,
Ms Mariana O. Betsa, Second Secretary of the Embassy of Ukraine in the
  Kingdom of the Netherlands,
as Legal Advisers ;
Mr. Robin Cleverly, M.A., D. Phil, C. Geol., F.G.S., Law of the Sea Con-
  sultant, Admiralty Consultancy Services,
Major General Borys D. Tregubov, Assistant to the Head of the State Bor-
  der Protection Service of Ukraine,
as Technical Advisers,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment :
1. On 16 September 2004 Romania filed in the Registry of the Court an
 plication dated 13 September 2004, instituting proceedings against Ukraine
ncerning the delimitation of the continental shelf and the exclusive economic
nes of Romania and Ukraine in the Black Sea.
In its Application, Romania seeks to found the jurisdiction of the Court on
  provisions of paragraph 4 (h) of the Additional Agreement constituted by
 exchange of letters of 2 June 1997 between the Ministers for Foreign Affairs
 Romania and Ukraine. The Additional Agreement was concluded with ref-
 nce to Article 2 of the Treaty on the Relations of Good Neighbourliness and
 -operation between Romania and Ukraine, signed on 2 June 1997 (herein-
 er the “Treaty on Good Neighbourliness and Co-operation”). Both instru-
 nts entered into force on 22 October 1997.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar imme-
 tely communicated a certified copy of the Application to the Government of
kraine ; and, in accordance with paragraph 3 of that Article, all States entitled
 appear before the Court were notified of the Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules of
 urt, the Registrar addressed to States parties to the United Nations Conven-

                                                                               7

n on the Law of the Sea of 10 December 1982 the notifications provided for
Article 63, paragraph 1, of the Statute of the Court. In addition, the Regis-
 r addressed to the European Community, which is also party to that Con-
ntion, the notification provided for in Article 43, paragraph 2, of the Rules of
 urt, as adopted on 29 September 2005, and asked that organization whether
not it intended to furnish observations under that provision. In response, the
gistrar was informed that the European Community did not intend to sub-
t observations in the case.
4. Since the Court included upon the Bench no judge of the nationality of
her of the Parties, each Party proceeded to exercise its right conferred by
ticle 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
 e. Romania chose Mr. Jean-Pierre Cot and Ukraine Mr. Bernard H. Oxman.

5. By an Order dated 19 November 2004, the Court fixed 19 August 2005
 d 19 May 2006, respectively, as the time-limits for the filing of the Memorial
 Romania and the Counter-Memorial of Ukraine ; those pleadings were duly
 d within the time-limits so prescribed.
6. By an Order of 30 June 2006, the Court authorized the submission of a
 ply by Romania and a Rejoinder by Ukraine, and fixed 22 December 2006
 d 15 June 2007 as the respective time-limits for the filing of those pleadings.
 e Reply of Romania was filed within the time-limits thus fixed. By an Order
 8 June 2007 the Court, at the request of Ukraine, extended to 6 July 2007 the
me-limit for the filing of the Rejoinder. Ukraine duly filed its Rejoinder within
  time-limit as thus extended.

7. By letter dated 23 August 2007 and received in the Registry on 30 August
07, the Agent of Romania informed the Court that his Government wished
 produce a new document in accordance with Article 56 of the Rules of Court
d provided certain explanations in justification of its request, namely that the
 cument was necessary “in order to make as complete a disclosure as possible,
 th to the Ukrainian Party and to the Court, of material evidence” and that
   “lateness of disclosure” was due to the fact that the document had not been
  ed together with the main archival sources relevant to this matter”. In
 ponse, the Agent of Ukraine informed the Court that his Government did
 t consent to the production of the new document, on the grounds that
  mania had not “acted in compliance with Practice Direction IX, since it did
 t indicate why it considered it necessary to file this new document now, nor
d it provide an explanation why it did not produce this map at an earlier
 ge in these proceedings”. In view of the absence of consent of Ukraine, on
  December 2007, the Registrar, on the instructions of the Court, requested
at the Government of Romania provide further explanations as to why the
w document should be regarded as necessary. Such additional explanations
 re duly submitted by the Government of Romania on 18 December 2007. On
  January 2008, the Parties were informed that the Court, after considering
   views of the Parties, had decided, pursuant to Article 56, paragraph 2, of
   Rules of Court, to authorize the production by the Government of Roma-
   of the new document in question.

8. In accordance with Article 53, paragraph 2, of the Rules of Court, the
 urt decided, after ascertaining the views of the Parties, that copies of the
 adings and documents annexed would be made available to the public as
 m the opening of the oral proceedings.

                                                                               8

9. Public hearings were held between 2 and 19 September 2008, at which the
 urt heard the oral arguments and replies of :

r Romania : H.E. Mr. Bogdan Aurescu,
            Mr. Alain Pellet,
            Mr. Cosmin Dinescu,
            Mr. James Crawford,
            Mr. Vaughan Lowe,
            Mr. Daniel Müller,
            Mr. Simon Olleson.
r Ukraine : H.E. Mr. Volodymyr A. Vassylenko,
            Mr. Rodman R. Bundy,
            Sir Michael Wood,
            Mr. Jean-Pierre Quéneudec,
            Ms Loretta Malintoppi.
10. At the hearings, a judge put questions to the Parties, to which replies
re given orally in accordance with Article 61, paragraph 4, of the Rules of
 urt.

                                     *
11. In its Application, the following claims were made by Romania :
     “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.”
12. In the written proceedings, the following submissions were presented by
 Parties :
 behalf of the Government of Romania,
the Memorial :
    “For the reasons set out above, the Government of Romania respect-
  fully 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 sur-
      rounding 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
    adjacent coasts, from Point Y to Point T, at 45° 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.”

                                                                            9

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 bound-
  ary 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 sur-
       rounding 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.”
 behalf of the Government of Ukraine,
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 con-
  trary, 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 co-
  ordinates of 45° 05′ 21″ N ; 30° 02′ 27″ E, the delimitation line extends in a
  south-easterly direction to Point 2, having the coordinates of 44° 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 bound-
  ary reaches a point where the interests of third States potentially come into
  play.”

13. At the oral proceedings, the following submissions were presented by the
rties :
 behalf of the Government of Romania,
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 sur-
      rounding 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

                                                                                10

       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

 behalf of the Government of Ukraine,
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 con-
  tinental shelf and exclusive economic zones between Ukraine and Roma-
  nia 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 con-
      tinues along the same azimuth until it reaches a point where the inter-
      ests 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

                                      * * *

                          2. GENERAL GEOGRAPHY

 14. The maritime area within which the delimitation in the present
se is to be carried out is located in the north-western part of the Black
a.
 15. The Black Sea is an enclosed sea connected with the Mediterra-
an Sea by the Straits of the Dardanelles, the Sea of Marmara and the
 sphorus. The Black Sea is situated between 40° 56′ and 46° 33′ N and
tween 27° 27′ and 41° 42′ E. The Crimean Peninsula extends southward
om Ukraine’s mainland into the Black Sea. The Black Sea has a surface
ea of some 432,000 sq km and consists of the territorial seas and exclu-
 e economic zones of the coastal States which border it.
 16. In the north-western part of the Black Sea, approximately 20 nau-

 See sketch-map No. 1, p. 69, prepared for illustrative purposes only.

                                                                               11

12

al miles to the east of the Danube delta, is situated a natural feature
 led Serpents’ Island. Serpents’ Island is above water at high tide, has a
rface area of approximately 0.17 sq km and a circumference of approxi-
ately 2,000 m.

                    3. PRELIMINARY LEGAL ISSUES

                  3.1. Subject-matter of the Dispute
17. The dispute between Romania and Ukraine concerns the establish-
ent of a single maritime boundary delimiting the continental shelf and
clusive economic zones between the two States in the Black Sea.

18. The two States, when they concluded on 2 June 1997 the Treaty on
ood Neighbourliness and Co-operation, agreed also through the Addi-
 nal Agreement (see paragraph 1 above), that they “shall negotiate an
greement on the delimitation of the continental shelf and the exclusive
onomic zones in the Black Sea” (Additional Agreement, para. 4).
egotiations for the conclusion of such Agreement were to start “as soon
 possible, during a period of three months from the date of the entering
 o force of the Treaty on Good Neighbourliness and Co-operation”
 id., para. 4 (g)). The Treaty entered into force on 22 October 1997, the
gotiations on the delimitation of the continental shelf and exclusive
onomic zones opened in January 1998, but despite their 24 rounds, the
 t being held in September 2004, as well as ten rounds at an expert level,
  delimitation agreement was reached.
19. Under these circumstances, Romania seised the Court on 16 Sep-
mber 2004 by filing, in the Registry of the Court, its Application insti-
 ing proceedings in the present case.

             3.2. Jurisdiction of the Court and its Scope
20. Romania invokes as a basis for the Court’s jurisdiction Article 36,
 ragraph 1, of the Statute of the Court and paragraph 4 (h) of the
dditional Agreement, the latter of which provides :
     “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 Jus-
  tice 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

                                                                       13

   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.”
 21. It follows from the text of the compromissory clause that two con-
 ions have to be met before either of the Parties is entitled to submit the
se to the Court. The first condition is that no delimitation agreement
ould have been concluded “in a reasonable period of time, but not later
an 2 years” since the start of negotiations. No agreement was reached
tween the Parties in the six years during which the negotiations were
ld (see paragraph 18 above). The second condition, namely that the
 eaty on the Régime of the State Border should have entered into force,
 s also been fulfilled. On 17 June 2003, the Treaty between Romania
 d Ukraine on the Romanian-Ukrainian State Border Régime, Collabo-
 ion and Mutual Assistance on Border Matters (hereinafter the “2003
ate Border Régime Treaty”) was signed, and it entered into force on
  May 2004.
 22. The Parties are in agreement that all the conditions for the Court’s
 isdiction were satisfied at the time of the filing of the Application and
at the Court accordingly has jurisdiction to decide the case. However,
ey differ as to the exact scope of the jurisdiction conferred upon the
ourt.

                                    *
 23. The issue of the scope of the Court’s jurisdiction was raised by
kraine in the course of the written proceedings in response to Roma-
a’s contention that “the initial segment of the boundary separating the
omanian exclusive economic zone and continental shelf from the
krainian territorial waters around Serpents’ Island” between “Point F”
 omania’s way of referring to the point of intersection of the territorial
as of Romania and Ukraine established by the 2003 State Border
 gime Treaty) and “Point X” (the endpoint, according to Romania, of
e agreed boundary on the 12-mile arc around Serpents’ Island) was
 ablished by bilateral agreements. In the view of Romania, “the proper
 y for the Court to conduct the delimitation” is to confirm the bound-
y between these two points and then to proceed to the determination of
e delimitation line in the other segments where the line has not yet been
 ablished by the two States.
 24. Ukraine argues that the jurisdiction of the Court is “restricted to
e delimitation of the areas of continental shelf and the exclusive eco-
 mic zones of the Parties”. In its view, the Court has no jurisdiction to
limit other maritime zones pertaining to either of the Parties and in
 rticular their respective territorial seas. Ukraine contends that the
 elimitation has to begin at the outer limit of the territorial waters of the
 o States” and the line to be drawn by the Court “shall be a line div-
 ng exclusively areas of continental shelf and EEZ”. It claims that the
ourt is excluded from drawing a line dividing the territorial sea of one

                                                                          14

ate from the continental shelf and exclusive economic zone of the other
ate. For this reason, Ukraine contends, the Court has no jurisdiction

   “for the drawing of a delimitation line as claimed by Romania
   between the so-called points F and X along a 12-nautical mile seg-
   ment 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”.

kraine adds that the Parties’ agreement to confer jurisdiction on the
ourt 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 ter-
   minal point”.
Ukraine notes however that in its view “this jurisdictional question
 es not need to be decided because, from Point F, the line proceeds in a
uth-easterly direction as a line delimiting areas of continental shelf and
e EEZs appertaining to each of the Parties”.

                                   *
25. Romania argues in response that international courts

   “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”.
 any event, in its view, no practical consequences flow from the Parties’
vergent approaches to the Court’s jurisdiction. As there is already a
aritime boundary running along the 12-nautical mile line around Ser-
nts’ Island up to Point X established by bilateral agreements, even if
e Court had no jurisdiction to delimit the continental shelf and exclu-
 e economic zone of one Party from the territorial sea of the other, it
ould still have to take into account the agreements in force between
omania and Ukraine and the resulting maritime boundary. Thus, Roma-
a concludes that, whether the Court has jurisdiction to perform the
limitation between Points F and X or not, this will have no influence
  the drawing of a new delimitation line, which in any event will begin
om Point X.

                                 * *
                                                                       15

26. The Court observes that Ukraine is not contending that under
 ernational law, as a matter of principle, there cannot be a delimitation
 e separating the territorial sea of one State from the exclusive eco-
 mic zone and the continental shelf of another State. In fact, such a line
 s determined by the Court in its latest Judgment on maritime delimita-
 n (see Territorial and Maritime Dispute between Nicaragua and Hon-
ras in the Caribbean Sea (Nicaragua v. Honduras), I.C.J. Reports
07 (II), p. 659. Ukraine rather relies on the terms of paragraph 4 (h)
  the Additional Agreement, which in its view, “suggest[s] that the
 rties did not anticipate that the Court would be called upon to delimit
  all-purpose maritime boundary along the outer limit of Ukraine’s ter-
orial sea” around Serpents’ Island.
27. The wording of paragraph 4 (h) of the Additional Agreement that
he problem of delimitation of the continental shelf and the exclusive
onomic zones shall be solved by the . . . International Court of Justice”,
neutral as to whether these zones must be found on both sides of the
limitation line throughout its length. The Court is of the view that it
 s to interpret the provision of paragraph 4 (h) of the Additional
greement conferring jurisdiction on the Court in the light of the object
 d purpose of that Agreement and its context.

 That Agreement was concluded on the same day as the Treaty on
ood Neighbourliness and Co-operation between Romania and Ukraine,
hich 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 prob-
   lem 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 min-
   isters 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.”
 28. The Additional Agreement specifies the manner in which effect is
 be given to the commitment of both Parties stated in Article 2, para-
aph 2, of the Treaty on Good Neighbourliness and Co-operation
 oted above. The Parties specified, in particular, in paragraph 1 of the
dditional Agreement that a Treaty on the régime of the border between
e two States should be concluded “not later than 2 years from the date
  the entering into force of the Treaty on Good Neighbourliness and
o-operation”, which took place on 22 October 1997. In paragraph 4 of
e same Agreement, the Parties specified that an Agreement on the
limitation of the continental shelf and the exclusive economic zones in
e Black Sea should be negotiated by the Parties. The Court considers
at the Parties intended that all boundary issues between them, whether
  land or at sea, be resolved in a comprehensive way. Under the narrow

                                                                       16

 erpretation of Ukraine, the Court would not “settle the problem of the
limitation” between the two States were it not to find substantively for
kraine.
The Court notes that the State Border Régime Treaty was concluded
  17 June 2003, i.e., within six years from the entry into force of the
 eaty on Good Neighbourliness and Co-operation, not two as originally
ntemplated. The 2003 State Border Régime Treaty, in its Article 1,
scribes the boundary line between the two Parties not only on land but
 o the line separating their territorial seas, “up to the point of
° 05′ 21″ north latitude and 30° 02′ 27″ east longitude, which is the
eeting point [of Ukraine’s territorial sea around Serpents’ Island] with
e Romanian State border passing on the outer limit of its territorial
a”.
29. No agreement on the delimitation of the continental shelf and
clusive economic zones in the Black Sea was reached. The Parties con-
mplated in paragraph 4 (h) of the Additional Agreement that, in such
 cumstances, either of them could request this Court to decide the issue
  the delimitation. The Court’s judgment will thus substitute for the
 n-existent agreement between the Parties on the delimitation of the
ntinental shelf and the exclusive economic zones and shall resolve all
ch matters which have not been settled by the Parties.

30. In discharging its task, the Court will duly take into account the
reements in force between the Parties relating to the delimitation of
eir respective territorial seas. The Court has no jurisdiction to delimit
e territorial seas of the Parties. Its jurisdiction covers the delimitation
 their continental shelf and the exclusive economic zones. However,
ntrary to what has been suggested by Ukraine, nothing hinders that
 isdiction from being exercised so that a segment of the line may result
 a delimitation between, on the one hand, the exclusive economic zone
d the continental shelf of one State, and, on the other hand, the terri-
rial sea of the other State at its seaward limit.

                          3.3. Applicable law
 31. Both Romania and Ukraine are parties to the 1982 United Nations
onvention on the Law of the Sea (UNCLOS). Romania deposited its
 trument of ratification on 17 December 1996 and Ukraine on 26 July
 99.
 Articles 74 and 83 of UNCLOS are relevant for the delimitation of the
clusive economic zone and the continental shelf, respectively. Their
xts are identical, the only difference being that Article 74 refers to the
clusive economic zone and Article 83 to the continental shelf. These
 ticles provide as follows :
      “1. The delimitation of the exclusive economic zone [the conti-
   nental shelf] between States with opposite or adjacent coasts shall be
   effected by agreement on the basis of international law, as referred

                                                                        17

  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 con-
  cerned, questions relating to the delimitation of the exclusive eco-
  nomic zone [the continental shelf] shall be determined in accordance
  with the provisions of the agreement.”
32. Romania states that the Parties concur in the view that the Procès-
 rbaux concluded between Romania and the USSR in 1949, 1963 and
74 are agreements which are legally binding on the Parties. Romania
ntends that these agreements, which establish the initial segment of the
aritime boundary, should be taken into account as agreements relating
 the delimitation within the meaning of Articles 74, paragraph 4, and
, paragraph 4, of UNCLOS. Another such agreement is the 2003 State
 rder Régime Treaty which delimited the maritime boundary up to the
 ter limit of the territorial sea at the point of intersection of Romania’s
 ritorial sea with the 12-nautical mile arc drawn around Serpents’
and. According to Romania, in any event, the question as to whether
 not the agreements fall within the above-mentioned category is of no
nsequence : they are binding on the Parties, and it is for the Court to
sure their application.
33. Romania argues that the principles recognized by the Parties in the
97 Additional Agreement are applicable both to the diplomatic
gotiations between the two States and for the purposes of any eventual
 tlement of the dispute by the Court. These principles are listed in
ragraph 4 of the 1997 Additional Agreement as follows :
  “(a) the principle stated in article 121 of the United Nations Con-
       vention on the Law of the Sea of December 10, 1982, as
       applied in the practice of states and in international case juris-
       prudence ;
   (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 ;

                                                                        18

    (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 sub-
        mitted to delimitation ;
    (e) the principle of taking into consideration the special circum-
        stances of the zone submitted to delimitation”.
 Romania also affirms that the delimitation should be carried out in
cordance with the provisions of UNCLOS.
 34. Romania asserts, with regard to the Additional Agreement, that if
e Parties had intended to impose limits on the relevance of the “prin-
ples and procedures” set out in paragraph 4 therein, that would have
 en made clear in the Agreement. Romania contends that its position is
pported by the terms of Article 2, paragraph 2, of the Treaty on Good
eighbourliness and Co-operation, according to which the Parties “shall
  tle the problem of the delimitation of their continental shelf and of
onomic exclusive zones in the Black Sea on the basis of the principles
 d procedures agreed upon by [the 1997] exchange of letters . . .”.
omania asserts with reference to this provision that no distinction is
ade between, on the one hand, the negotiations and, on the other hand,
e other procedures to which the Parties might have recourse to solve
e problem of delimitation.
 35. Romania submits that the Treaty on Good Neighbourliness and
o-operation and the Additional Agreement enshrine a legal commit-
ent reached between Romania and Ukraine, according to which, in
change for the fact that Romania formally confirmed that Serpents’
 and belonged to Ukraine, Ukraine accepted the delimitation principles
 d down by the Additional Agreement for reaching an equitable solu-
  n to the delimitation. In particular, according to Romania, Ukraine
cepted the applicability of Article 121, paragraph 3, of UNCLOS in the
 limitation of the continental shelf and exclusive economic zones, as
  erpreted by Romania when signing and ratifying it. The relevant part
  its declaration reads as follows :
     “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 accept-
ce of the reference to Article 121 as one of the principles to be applied
 delimitation clearly indicates that the two States agreed in 1997 that
rpents’ Island could receive no other effect in addition to those effects
eady produced by it on the delimitation of the territorial seas of the
o Parties.

                                  *
                                                                      19

 36. Ukraine contends that the Court is obliged to decide disputes in
 cordance with international law, as laid down in Article 38, para-
 aph 1, of the Statute. In relation to maritime delimitation and as
 tween the Parties to the present case, “that applicable body of rules of
  ernational law comprises principally the provisions of UNCLOS and
 rtain specific rules which have become well established in the jurispru-
 nce of the Court”.
 37. According to Ukraine, the 1997 Additional Agreement is an inter-
 tional treaty binding upon the Parties, however, “its provisions do not
mbody an agreement which relates to the present proceedings”. The
  nciples enunciated therein were to form the basis on which the Parties
  re to negotiate a delimitation agreement, but they were not agreed by
 e Parties as applying to the subsequent judicial proceedings. At the
 me time Ukraine acknowledges that some of these principles may be
  evant as part of the established rules of international law which the
ourt will apply but not as part of any bilateral agreement.
 38. Ukraine further argues that the 1949, 1963 and 1974 Procès-
  rbaux and the 1997 Additional Agreement do not constitute agreements
entioned in Articles 74, paragraph 4, and 83, paragraph 4, of UNCLOS
 cause they were not agreements delimiting the continental shelf and
 clusive economic zones.
 39. With regard to the declaration made by Romania with respect to
  ticle 121 upon the signature and ratification of UNCLOS, Ukraine
  ints out the difference between a declaration and a reservation, and
  tes that a declaration “does not modify the legal effect of the treaty in
  estion” and does not call for any response from the other Contracting
  rties. Thus, according to Ukraine, the Court does not have to take into
 nsideration Romania’s declaration. As Ukraine further notes, Roma-
a claims that the reference to Article 121 of UNCLOS in the Additional
greement of 1997, considered to be one of the principles applicable to
 e delimitation, demonstrates that Ukraine has thus “accepted the appli-
 bility of the third paragraph of Article 121, as interpreted by the
omanian declaration, to the present situation” ; for Ukraine, this asser-
  n is groundless.

                                  * *
 40. In deciding what will be a single maritime delimitation line, the
ourt will duly take into account the agreements in force between the
 rties. Whether the Procès-Verbaux concluded between Romania and
e USSR in 1949, 1963 and 1974 constitute agreements relating to the
limitation within the meaning of Articles 74, paragraph 4, and 83, para-
aph 4, of UNCLOS, depends on the conclusion the Court will reach on
omania’s contention that they establish the initial segment of the mari-
me boundary which the Court has to determine. The Court considers
e issue in Section 4 of this Judgment.

                                                                        20

41. With respect to the principles listed in subparagraphs 4 (a) to (e)
 the Additional Agreement, the Court is of the view that the chapeau of
at paragraph providing that
   “[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),

ggests that these principles were intended by the Parties to be taken
 o account in their negotiations on the maritime delimitation, but do
 t constitute the law to be applied by the Court. This does not neces-
rily mean that these principles would per se be of no applicability in the
esent case ; they may apply to the extent that they are part of the rele-
 nt rules of international law. The Court further notes that the princi-
es listed in the Additional Agreement were drawn up by the Parties in
 97. The entry into force of UNCLOS as between the Parties in 1999
eans that the principles of maritime delimitation to be applied by the
ourt in this case are determined by paragraph 1 of Articles 74 and 83
ereof.
 42. Finally, regarding Romania’s declaration, quoted in paragraph 35
 ove, the Court observes that under Article 310 of UNCLOS, a State is
 t precluded from making declarations and statements when signing,
 ifying or acceding to the Convention, provided these do not purport to
clude or modify the legal effect of the provisions of UNCLOS in their
 plication to the State which has made a declaration or statement. The
ourt will therefore apply the relevant provisions of UNCLOS as inter-
eted in its jurisprudence, in accordance with Article 31 of the Vienna
onvention on the Law of Treaties of 23 May 1969. Romania’s declara-
 n as such has no bearing on the Court’s interpretation.

    4. EXISTING MARITIME DELIMITATION BETWEEN THE PARTIES
    (EFFECT OF THE PROCÈS-VERBAUX OF 1949, 1963 AND 1974,
 AS WELL AS THE 1949 AND 1961 TREATIES BETWEEN ROMANIA AND
THE USSR AND THE 2003 TREATY BETWEEN ROMANIA AND UKRAINE)

43. The Court notes that the Parties disagree as to whether there
 eady exists an agreed maritime boundary around Serpents’ Island for
  purposes. They therefore disagree also on the starting-point of the
limitation to be effected by the Court. To clarify the issues under dis-
ssion, the Court must distinguish between these two different matters :
stly, the determination of the starting-point of the delimitation as a
nction of the land boundary and territorial sea boundary as already
termined by the Parties ; and secondly, whether there exists an agreed
aritime boundary around Serpents’ Island and what is the nature of

                                                                       21

ch a boundary, in particular whether it separates the territorial sea of
kraine from the continental shelf and the exclusive economic zone of
omania, as claimed by the latter and denied by the former.

                                  *
 44. Romania explains that a number of agreements were entered into
tween Romania and the Soviet Union in relation to their boundary.
 e most important is the General Procès-Verbal of 27 September 1949
ereinafter “the 1949 General Procès-Verbal”), which embodies the
ork of the Joint Soviet-Romanian Commission for Delimitation of the
ate Border. Romania states the boundary fixed in 1949 was confirmed
 further Soviet-Romanian Procès-Verbaux in 1963 and 1974 and in the
 49 and 1961 Border Treaties between Romania and the USSR. Accord-
g to Romania, these agreements, “which are binding on Ukraine by
 y of succession”, established the first part of the maritime boundary
ong the 12-nautical-mile arc around Serpents’ Island. Romania points
 t that in the 1997 Additional Agreement and the 2003 State Border
 gime Treaty, Ukraine expressly affirmed the binding character of the
 rder as agreed in the 1961 Border Régime Treaty between Romania
 d the USSR which itself affirmed the applicability of the 1949
ocès-Verbaux.

 45. According to Romania, it is clear from the language of the
 49 General Procès-Verbal that the Parties agreed that the boundary
ould follow the exterior margin of the 12-mile marine boundary zone
urrounding” Serpents’ Island. Moreover, Romania continues, the
greement effected an “all-purpose delimitation” which was not limited
 an initial short sector in the west.
 46. Romania points out that on the sketch-map included in the indi-
dual 1949 Procès-Verbal relating to border sign 1439, as well as on
ap 134 attached to the 1949 General Procès-Verbal, the boundary is
 arly drawn along the 12-nautical-mile arc around Serpents’ Island
 til the edge of the said maps. It asserts that the sketch-maps form an
 egral part of the Procès-Verbaux and have to be given a corresponding
 ight. In its view, regardless of whether they are to scale or are geo-
aphically accurate, the sketch-maps confirm the meaning of the text of
e Procès-Verbaux, namely that the State boundary line extends beyond
 rder sign 1439 along the 12-mile arc around Serpents’ Island, and that
has the same character along its entire length.

47. Romania adds that, although the final point of the maritime
 undary between Romania and the USSR was not identified by specific
ographical co-ordinates, the extent of the agreed boundary is fixed by
e language of the 1949 General Procès-Verbal itself. The existence and

                                                                     22

ceptance of the maritime boundary around Serpents’ Island following
e 12-nautical-mile arc until a point situated due east of the island is also
nfirmed by various navigation charts issued after 1949 by the USSR
d later Ukraine, as well as by Romania, Bulgaria, France and Ger-
any. These charts, Romania maintains, consistently show the boundary
 extending beyond the last point depicted on map 134, and as having
e same character along its entire length up to a point due east of Ser-
nts’ Island. Romania claims that the position of this point, which it
 ers to as “Point X”, coincides on all of these charts : it is located at
proximately 45° 14′ 20″ N and 30° 29′ 12″ E.

 48. The last point of the boundary depicted on map 134 cannot be
nsidered, in Romania’s view, the final point of the boundary because
e short segment of the boundary from border sign 1439 up to the point
here the drawing terminates does not constitute a boundary “surround-
g” Serpents’ Island as envisaged in the text of the individual 1949 Procès-
 rbal relating to border sign 1439. Romania further argues that the
ank space between the endpoint of the line depicted on map 134 and
e edge of the map is of no relevance and cannot serve as an argument
at this point is the final point of the boundary. Map 134 was intended
 depict the boundary between Points 1438 and 1439, and “the bound-
y sectors situated both before and beyond point 1438 and 1439 are only
 rtially depicted”.
 49. According to Romania, the fact that there happens to be a close
incidence between the endpoint of the boundary on map 134 and the
 int of intersection of 12-nautical-mile territorial seas of Romania and
kraine, identified in the 2003 State Border Régime Treaty, does not
ove that the endpoint of the boundary on map 134 was a final point of
e maritime boundary agreed in 1949. While the endpoint of the bound-
y on map 134 is at approximately 12 nautical miles from the Sulina
 ke as it exists presently, in 1949 (when the dyke was shorter) this point
 s at about 13.4 nautical miles from the Romanian coast. No conclu-
 n as to what was agreed in 1949 is to be drawn from coincidences
 ulting from the changing coastal situation.

                                    *
 50. Ukraine disagrees that a maritime boundary along the 12-nautical-
 le arc around Serpents’ Island up to Point X was established by the
 reements between Romania and the USSR starting from 1949. It
rther argues that both Parties acknowledge that the final point of the
ate border was established by the 2003 State Border Régime Treaty,
hich means that maritime spaces beyond this point had not previously
en delimited.

                                                                         23

 51. In particular, Ukraine asserts that the text of the 1949 Procès-
 rbaux did not provide for an all-purpose maritime boundary, and neither
d map 134. It notes that in accordance with the settlement recorded in
e 1949 Procès-Verbaux the boundary line between Points 1437 and
 38 “is a true State boundary between the territorial sea and/or internal
  ters of Romania and the Soviet Union”. The boundary line running
 t to sea from Point 1438 in the direction of Point 1439 was “a true
ate boundary between the territorial seas of Romania and the Soviet
nion only as far out as a point 6 nautical miles from the baseline from
hich Romania’s territorial sea is measured”. The boundary running
rther out to sea beyond the 6-nautical-mile point to Point 1439 and
ereafter following the 12-nautical-mile arc around Serpents’ Island was
e boundary between the Soviet Union’s sovereign territorial sea and the
 jacent high seas. Waters beyond the territorial sea limits were high
as, which in 1949 meant for Romania the waters beyond 6 nautical
 les (since 1951, when Romania extended the breadth of its territorial
a, beyond 12 nautical miles), and for the Soviet Union waters
yond 12 nautical miles.

 52. Ukraine argues that neither the 1949 Procès-Verbaux nor any
her agreed text identifies the status of the waters to the south of the
ort length of agreed line along the 12-nautical-mile arc around Ser-
nts’ Island. The line agreed in 1949 could not have been intended by
e Parties as a line separating sea areas subject to distinctive régimes
hich at that time simply did not exist, i.e., the continental shelf and
clusive economic zone. Thus, Ukraine asserts that, while the 1949 as
 ll as the 1963 and 1974 Procès-Verbaux are binding international
 reements, they “are not continental shelf or EEZ delimitation agree-
ents”. It emphasizes that no relevant text provides for the agreed
 undary line to be an “all-purpose” maritime boundary restricting
kraine’s (and previously the Soviet Union’s) rights “to any and all cat-
ories of maritime claims beyond that line”.

53. Ukraine contends that “[n]one of the relevant Procès-Verbaux nor
 y other agreements say that the agreed boundary extends as far as
omania’s alleged Point X”, nor give any co-ordinates for such a point.
 is conclusion is evident from a reading of their texts.

Ukraine states that map 134 annexed to the 1949 General Procès-
 rbal shows that the relevant part of the 12-mile arc around Serpents’
and extends on the arc beyond Point 1439 but without however reach-
g the edge of the map (there is a blank space). Ukraine maintains that
 thing in the text “suggests that the relevant part of the 12-nautical-mile
c around Serpents’ Island extended to the south-east or east around
rpents’ Island”, as contended by Romania. According to Ukraine,

                                                                        24

ap 134 was intended specifically to show the boundary which had been
reed in the Procès-Verbal to which it was attached, including the end-
 int of the boundary. The final point depicted on map 134 is “within a
ry few metres” of the point agreed in the 2003 State Border Régime
 eaty as the point of intersection of the outer limits of Ukraine’s and
omania’s territorial seas (a difference of 93 m (north) and 219 m (east)).

54. As to the cartographic evidence produced by Romania, Ukraine
plies that none of the maps or sketch-maps contemporaneous with the
49 Procès-Verbaux show that the agreed boundary extends as far as
omania’s alleged Point X. Non-contemporaneous maps “are of little or
  evidentiary value as to what was agreed in 1949”. In particular, it
 tes that the maps referred to by Romania are unreliable, cannot serve
 a confirmation that there exists an agreed boundary terminating at a
 int due east of Serpents’ Island (Point X) and that none of them “has
 y substantial legal value”.

                                 * *
 55. The Court first notes that the Procès-Verbaux of 1949 resulted
om the work of the Joint Soviet-Romanian Border Commission imple-
enting the Protocol to Specify the Line of the State Boundary between
e People’s Republic of Romania and the Union of Soviet Socialist
 publics, signed in Moscow on 4 February 1948 (hereinafter “the
 48 Protocol”). It emerged from these negotiations that this Protocol
 s primarily aimed at the modification of what had been agreed upon
  the 1947 Paris Peace Treaty between the Allied and Associated Powers
 d Romania, which confirmed that the Soviet-Romanian border was
 ed “in accordance with the Soviet-Romanian Agreement of June 28,
 40, and the Soviet-Czechoslovak Agreement of June 29, 1945”.

56. The text of the Peace Treaty has no express provision relating to
rpents’ Island. However, the 1948 Protocol stipulated where the
tional borders between the States should lie as follows :
    “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, leav-
      ing the islands of Tătaru Mic, Daleru Mic and Mare, Maican

                                                                       25

        and Limba on the side of the [USSR], and the islands
        Tătaru 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].”

57. The Procès-Verbal of the Description of the State Boundary dated
  September 1949, contains a complete description of the demarcation
us effected in the form of the traversal of the State boundary line from
 undary mark No. 1052 to boundary mark No. 1439, covering both the
nd territory in the national border area and the maritime territory up to
 int 1439. It is the description of the border included in this Procès-
 rbal, carried forward into later agreements, that is of importance for
esent purposes.
58. According to the General Procès-Verbal describing the whole State
 rder line, the boundary continues from a defined point near the end of
e river boundary between the two States (Point 1437) for a short dis-
nce along the middle of the channel of the river and then roughly south
uth-easterly in a straight line to a buoy anchored in water (Point 1438),
  which point the direction of the boundary line in the Black Sea
anges and continues roughly easterly in a straight line for about
  miles to a beacon (Point 1439), the final point defined with co-
dinates stated by the Commission. It is at the point at which the straight
 e from Point 1438 intersects with “the exterior margin of the Soviet
aritime boundary line, of 12 miles, surrounding Serpents’ Island”. The
 cument continues with this sentence : “The State boundary line, from
 rder sign No. 1439 (beacon), goes on the exterior margin of the marine
 undary zone of 12 miles, leaving Serpents’ Island on the side of the
SSR.”

 59. The border lines in the sketch-map included in the individual
 ocès-Verbal of border Point 1439 (which includes almost the same
 pression as that just quoted) uses the same symbols from the river
outh (Point 1437) along the line through the coastal waters to Point 1438
 d on to Point 1439 and then beyond on the arc around Serpents’
 and, shown for about 5 miles, to the point where the arc ends, at the
argin of the sketch-map included in that Procès-Verbal. The expres-
 ns “CCCP” and “URSS” are used on the Soviet side and “PHP” and
RPR” on the Romanian side, including the short section of the arc.

 60. Wording almost identical to that in the 1949 Procès-Verbaux rel-
 ng to the line beyond Point 1439, set out at the end of paragraph 58
 ove, was included in a 1954 Act, signed by authorized officers of the
 o countries, relating to the boundary mark No. 1439.

 61. In November 1949 and February 1961, Romania and the USSR
 ncluded treaties on the régime of their border, the latter treaty replac-

                                                                       26

g the former. Both defined the State border between them by reference
 the earlier agreements including the demarcation documents of Sep-
mber 1949. In terms of the 1961 Treaty, a further demarcation process
 s carried out in 1963. While that process involved no modification of
e border sign No. 1439 nor any sketch-map of it, the general descrip-
 n of the border includes a passage similar to that in the earlier docu-
ents with the change that “Soviet marine boundary zone” is replaced by
e “territorial sea of the USSR” : “From the border sign No. 1439 (bea-
n), the State boundary passes on the exterior margin of the 12-mile
 ritorial sea of the USSR, leaving Serpents’ Island on the USSR side.”

 62. Demarcation negotiations were conducted during the 1970s : in the
 74 general Procès-Verbal, the wording from the general 1963 Procès-
 rbal was reprised, while in the 1974 individual Procès-Verbal, the
ording reverted to that of the 1949 general Procès-Verbal. The 1974 indi-
dual Procès-Verbal included a sketch-map with the same features in
 ms of the marking of the various sections of the border and the use of
e terms “CCCP/URSS” and “PHP/RPR” as were used in the sketch-
aps attached to the individual 1949 Procès-Verbal and the individual
 63 Procès-Verbal.
 63. The final treaty in the series is the 2003 State Border Régime
 eaty. In the preamble, the Contracting Parties state their desire to
velop relations of collaboration on the basis of the principles and pro-
 ions in their Treaty on Good Neighbourliness and Co-operation and
 the Additional Agreement providing principles and processes for delim-
ng the continental shelf and exclusive economic zone. The 2003 Treaty
 Article 1 describes the State border by reference to the 1961 Romania-
SSR Treaty
   “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”,

e date of the adoption of the Declaration on the State Sovereignty of
kraine. 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 Contract-
   ing Parties measured from the baselines shall permanently have, at
   the meeting point of their outer limits, the width of 12 maritime
   miles.”

                                                                         27

 e 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 un-
   changed, 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.”
e definition of the boundary no longer includes the passage about the
undary “passing” or “going on” the exterior margin of the maritime
ne “from” Point 1439. Rather the boundary continues from that point
p to” the defined point.

 64. In the view of the Court, the argument raised by Romania and
 sed by it on the words “from” and “goes on the exterior margin of the
arine boundary zone” cannot support Point X as the endpoint of the
 reed boundary (see paragraph 47 above). First, none of the contempo-
neous maps and sketch-maps arrive anywhere near Point X. Second,
e agreements are about “State borders”, an expression which does not
sily apply to areas beyond territory, including territorial seas. Third,
hile, as Ukraine accepts, the 1949 and later agreements do not specify
e endpoint and Point 1439 is not the endpoint, the sketch-map which is
 rt of the Procès-Verbal for Point 1439 does indicate where that end-
 int might be ; a clearer and more authoritative indication of that point
 pears, if at a slightly different location, in map 134 which is to scale,
 like the sketch-maps ; the map is part of the General Procès-Verbal of
 49 and shows border signs 1438 and 1439 and only a short sector of the
c beyond the latter. Finally, while other features on map 134 go all the
  y to the margin of the map, the point at which the arc ends is short of
e margin of it (it is very close to the point where Romania’s prospective
 -mile territorial sea would intersect with the 12-mile arc around the
and). The gap between the end of the arc on that map and the 2003 co-
dinates is about 250 m.

65. A major problem with the Romanian thesis is the lack of any sup-
 rt in the 1948-1949 processes and the resulting agreement for a point to
e east of Serpents’ Island. Apart from the argument based on the words
emselves, the only support for a point to the east of the island to be
 cerned in the contemporary (1949) documentation is provided by the
 o sketch-maps and map 134. However, they fall a long way short of
omania’s Point X ; further, they produce very different results from
ch other, from the sketch-map in the Procès-Verbal for Point 1439 and,

                                                                       28

ost importantly, from the end of the arc which appears in the only rele-
nt map in the 1949 Agreement — map 134.

66. The Court concludes that in 1949 it was agreed that from the point
presented by border sign 1439 the boundary between Romania and the
SSR would follow the 12-mile arc around Serpents’ Island, without any
dpoint being specified. Under Article 1 of the 2003 State Border
 gime Treaty the endpoint of the State border between the Parties was
 ed at the point of intersection where the territorial sea boundary of
omania meets that of Ukraine. The Court will hereinafter refer to this
 int as “Point 1”.

                                    *
67. The Court now turns to the question as to whether there exists an
reed line which divides the territorial sea of Ukraine and the continen-
  shelf and the exclusive economic zone of Romania, as contended by
e latter.
68. A preliminary issue concerns the burden of proof. As the Court
 s said on a number of occasions, the party asserting a fact as a basis of
  claim must establish it (Sovereignty over Pedra Branca/Pulau Batu
 teh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment,
C.J. Reports 2008, p. 31, para. 45 ; Application of the Convention on the
 evention and Punishment of the Crime of Genocide (Bosnia and Herze-
vina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
 128, para. 204, citing Military and Paramilitary Activities in and against
 caragua (Nicaragua v. United States of America), Jurisdiction and
 missibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). Ukraine
aced particular emphasis on the Court’s dictum in the case concerning
 rritorial and Maritime Dispute between Nicaragua and Honduras in
e Caribbean Sea (Nicaragua v. Honduras) that “[t]he establishment of
permanent maritime boundary is a matter of grave importance and
reement is not easily to be presumed” (Judgment, I.C.J. Reports 2007 (II),
 735, para. 253). That dictum, however, is not directly relevant since in
at case no written agreement existed and therefore any implicit agree-
ent had to be established as a matter of fact, with the burden of proof
 ng with the State claiming such an agreement to exist. In the present
se, by contrast, the Court has before it the 1949 Agreement and the
bsequent agreements. Rather than having to make findings of fact,
th one or other Party bearing the burden of proof as regards claimed
cts, the Court’s task is to interpret those agreements. In carrying out
at task, the Court must first focus its attention on the terms of those
 cuments including the associated sketch-maps.
69. The Court notes that Articles 74, paragraph 4, and 83, para-
aph 4, of UNCLOS are relevant to Romania’s contention that a
 undary delimiting the exclusive economic zones and continental shelf

                                                                        29

yond Point 1, and extending around Serpents’ Island, was established
  the 1949 instruments.
Paragraph 4 of Articles 74 and 83 provides that where there is an
reement in force between the States concerned, questions relating to
e delimitation of the exclusive economic zone and the continental shelf
hall be determined in accordance with the provisions of that agree-
ent”.
The word “agreement” in paragraph 4 (as elsewhere in the Article)
 ers to an agreement delimiting the exclusive economic zone (Article 74)
 the continental shelf (Article 83) referred to in paragraph 1. State prac-
e indicates that the use of a boundary agreed for the delimitation of
 e maritime zone to delimit another zone is effected by a new agree-
ent. This typically occurs when States agree to apply their continental
elf boundary to the exclusive economic zone. The agreement between
 rkey and the USSR applying the continental shelf boundary to the
clusive economic zone is one such example. By the same token, if States
 end that their territorial sea boundary limit agreed earlier should later
 ve also as the delimitation of the continental shelf and/or the exclusive
onomic zones, they would be expected to conclude a new agreement for
 s purpose.

 70. The 1949 instruments make no reference to the exclusive economic
ne or the continental shelf. Although in 1949 the Truman Proclama-
 n and the claims that it had begun to stimulate were widely known,
ither Party claimed a continental shelf in 1949 nor is there any indica-
 n in the case file that either was preparing to do so. The International
 w Commission (ILC) had yet to begin its work on the law of the sea
hich ultimately led to the 1958 Convention on the Continental Shelf
 d widespread acceptance of that concept. The concept of an exclusive
onomic zone in international law was still some long years away.

The only agreement between the Parties expressly dealing with delimi-
 ion of the exclusive economic zone and the continental shelf is the
97 Additional Agreement. It does not establish a boundary but rather
process for arriving at one, which is reaching its culmination in these
oceedings. The detailed provisions regarding factors to be taken into
count during the negotiations make no reference to an existing agree-
ent. There was no agreement in 1949 delimiting the exclusive economic
ne or the continental shelf within the meaning of Articles 74 and 83 of
NCLOS.
71. A further issue that may arise under international law and Arti-
  311, paragraph 2, of UNCLOS is whether the USSR could have
nounced in 1949 any rights which it might then or later have had over

                                                                        30

 ters beyond the territorial sea. There is no express language of renun-
 tion in the 1949 Treaty on the part of the USSR apart from its agree-
ent to a State frontier with Romania. The express mention of a State
ontier alludes to sovereignty which includes the territorial sea. The
 estion is whether there is an implied prospective renunciation by the
SSR, in a geographical sense with respect to the area beyond 12 miles,
 d in a legal sense with respect to zones not of sovereignty but of func-
 nal competence beyond the territorial sea.

72. Romania proffers a variety of maps by Soviet, Ukrainian and
her sources, mostly prepared long after the conclusion of the 1949
 truments. They show hooks or loops around Serpents’ Island with
rying lengths and markings, all extending beyond the point where the
-mile territorial seas of the Parties meet. Since in the circumstances
ere is no question of these maps themselves evidencing a new agree-
ent or an estoppel, the issue is whether any of them evince a correct
 derstanding of the meaning of the 1949 Treaty.

73. The USSR acquired Serpents’ Island in the context of the overall
 ritorial settlement that emerged following the Second World War. A
 mary USSR objective was to consolidate and stabilize the territorial
 tlement by treaty with Romania, including the USSR’s acquisition of
rpents’ Island.
74. So far as the territorial sea is concerned, the Court notes that a
-mile zone around Serpents’ Island would have been consistent with
e 12-mile zone that the USSR was claiming generally for its territorial
a.
75. This understanding of the effect of the textual references to the arc
 the 1949 instruments is set forth in Article 1 of the 2003 State Border
 gime Treaty. That Treaty expressly contemplates the possibility of
 ure agreed modifications of the co-ordinates of the territorial sea
 undary due to natural phenomena which are not related to human
tivities, and provides that “[t]he territorial seas of the Contracting
 rties measured from the baselines shall permanently have, at the meet-
g point of their outer limits, the width of 12 maritime miles”. Thus, the
-mile arc around Serpents’ Island will never be penetrated by Roma-
a’s territorial sea, no matter what changes occur in its coastline or
selines.

The Court observes further that the 12-mile arc around Serpents’
and is shown on a map dealing with the State border ; this suggests that
at arc represents simply the seaward limit of the territorial sea. Recog-
 ion by the USSR in the 1949 instruments that its State border followed

                                                                      31

e outer limit of its territorial sea around Serpents’ Island does not sig-
 y that it thereby gave up any entitlements to maritime areas beyond
at zone.
76. The Court concludes that the 1949 instruments related only to the
marcation of the State border between Romania and the USSR, which
ound Serpents’ Island followed the 12-mile limit of the territorial sea.
 e USSR did not forfeit its entitlement beyond the 12-mile limit of its
 ritorial sea with respect to any other maritime zones. Consequently,
ere is no agreement in force between Romania and Ukraine delimiting
tween them the exclusive economic zone and the continental shelf.

                         5. RELEVANT COASTS

 77. The title of a State to the continental shelf and to the exclusive eco-
 mic zone is based on the principle that the land dominates the sea
rough the projection of the coasts or the coastal fronts. As the Court
 ted in the North Sea Continental Shelf (Federal Republic of Germany/
 nmark ; Federal Republic of Germany/Netherlands) cases, “the land is
e legal source of the power which a State may exercise over territorial
tensions to seaward” (Judgment, I.C.J. Reports 1969, p. 51, para. 96).
  the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the
ourt observed that “the coast of the territory of the State is the decisive
ctor for title to submarine areas adjacent to it” (Judgment, I.C.J.
 ports 1982, p. 61, para. 73). It is therefore important to determine the
asts of Romania and of Ukraine which generate the rights of these
untries to the continental shelf and the exclusive economic zone,
 mely, those coasts the projections of which overlap, because the task of
limitation consists in resolving the overlapping claims by drawing a
 e of separation of the maritime areas concerned.

78. The role of relevant coasts can have two different though closely
 ated legal aspects in relation to the delimitation of the continental shelf
d the exclusive economic zone. First, it is necessary to identify the rele-
nt coasts in order to determine what constitutes in the specific context
  a case the overlapping claims to these zones. Second, the relevant
asts need to be ascertained in order to check, in the third and final
 ge of the delimitation process, whether any disproportionality exists in
e ratios of the coastal length of each State and the maritime areas fall-
g either side of the delimitation line.

79. The Court will begin by briefly setting out the Parties’ positions as
 their respective relevant coasts (see sketch-maps Nos. 2 and 3, pp. 91-
).

                                                                         32

                 5.1. The Romanian Relevant Coast
80. Romania invokes the principle that the relevant coast is the coast
at generates the entitlement to maritime zones : that is, the coast whose
ojection extends over the area in question, which is the area of overlap
tween the zones generated by the coasts of the two States, so as to give
e coastal State the basis for its claim to the area in question. It explains
at
  “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 overlap-
  ping entitlements”.
81. Romania contends that its coast is composed of two distinct seg-
ents : a short and more or less straight coast from the last point of the
 er border with Ukraine to the southern extremity of the Sacalin Penin-
 a, and a longer slightly concave coast from the extremity of the Sacalin
 ninsula to the border with Bulgaria. Romania states that the only
ajor features in this stretch of coast are the Sulina dyke and the mouth
 the St. George arm of the Danube, located slightly to the north of the
 calin Peninsula. The Sacalin Peninsula, which forms a narrow prom-
 tory, is the southern limit of this section. From that peninsula, “the
ast proceeds in a westerly direction until it reaches the Razim Lake, a
ackish Romanian lake separated from the sea by a narrow strip of
nd”. The coast then gradually curves to the south, and proceeds in a
oadly southerly direction until it reaches the land border with Bulgaria,
uth of Vama Veche.
82. In Romania’s view, the whole Romanian coast is relevant. In par-
ular, the coastal segment situated between the last point of the land/
 er border between Romania and Ukraine and the outer extremity of
e Sacalin Peninsula is relevant for both sectors of the delimitation area
aracterized respectively by situations of coastal adjacency and coastal
 positeness. The segment situated south of the Sacalin Peninsula to the
 t point of the Romanian/Bulgarian land border is relevant only for the
ctor of the delimitation area characterized by a coastal situation of
 positeness.
83. The total length of its relevant coast, according to Romania, is
9.67 km (baselines 204.90 km).

                                    *
84. Ukraine notes that Romania divides its coast into two segments :
st of all, from the land boundary with Ukraine down to the Sacalin
ninsula, and secondly, from that peninsula southwards to the bound-
y with Bulgaria.
85. Ukraine further contends that “in constructing its claim line,
omania has double counted a significant part of its coast represented by
e northern sector of that coast”. According to Ukraine, Romania treats

                                                                         33

34

35

e northern sector of its coast as the relevant “adjacent coast” and then
es its entire coast (i.e., including the northern sector) as the relevant
ast for the purposes of delimitation between the “opposite coasts” —
n other words, it double counts the 70 km-long stretch of its northern
ast” as relevant for both the “adjacent” maritime boundary and the
 pposite” boundary.

In response, Romania explains that, while its coast has a role to play
 th in relation to adjacent coasts and to opposite coasts, in the calcula-
 n of the total length of its relevant coast, each of the segments of its
ast is counted only once.
86. While Ukraine expresses the view that “significant portions of
omania’s coast actually face south or south-east”, it states that it is
 netheless prepared to treat all of Romania’s coast as a “relevant coast”
r purposes of the present delimitation because the “projections from
ch Party’s coast generate overlapping maritime entitlements and EEZ
titlements in this part of the Black Sea”.

 87. The total length of Romania’s coast, according to Ukraine, is
 proximately 258 km taking into account the sinuosities along that
ast. If the coast is measured more generally according to its coastal
ont, then the length is 185 km. If Romania’s coast is measured by ref-
ence to Romania’s system of straight baselines, its length would be
 proximately 204 km.

                                 * *
88. The Court notes that the Parties are in agreement that the whole
omanian coast constitutes the relevant coast for the purposes of delimi-
 ion. The first segment of the Romanian coast, from the last point of
e river boundary with Ukraine to the Sacalin Peninsula, has a dual
aracteristic in relation to Ukraine’s coast ; it is an adjacent coast with
gard to the Ukrainian coast lying to the north, and it is an opposite
ast to the coast of the Crimean Peninsula. The whole coast of Romania
 uts the area to be delimited. Taking the general direction of its coast
e length of the relevant coast of Romania is approximately 248 km (see
etch-map No. 4, p. 94).

                 5.2. The Ukrainian Relevant Coast
89. The Court now turns to the issue of the Ukrainian relevant coast
r the purpose of this delimitation. The Parties take different views on it.

90. Romania asserts that the Ukrainian coast is characterized by a
 mber of deep indentations and reverses its course sharply several
mes, with segments facing one another. From the land/river border with
omania, the Ukrainian coast proceeds broadly northwards for a short

                                                                        36

37

 tance and then in a north-easterly direction until the Nistru/Dniester
rth. The point where its southern bank meets the coast (referred to by
omania as “Point S”), according to Romania, marks the end of that
 rt of Ukraine’s coast which has a relation of adjacency with the Roma-
an coast. From this point, the Ukrainian coast changes direction pro-
eding in a north-north-easterly direction until it reaches Odessa. At
dessa it initially goes north and then turns eastwards until the coast
aches the Dnieper Firth. From here the general direction of the coast is
st a southerly one, and then, from the bottom of the Yahorlyts’ka
ulf, the direction is an easterly one, until it comes to the bottom of the
arkinits’ka Gulf. The coast then turns back on itself sharply, extending
uth-westwards along the southern coast of the Karkinits’ka Gulf, until
reaches Cape Tarkhankut. The last sector comprises the coast of Cri-
ea between Cape Tarkhankut and Cape Sarych, which is concave, its
neral direction being interrupted by a significant protrusion, the western-
ost point of which is Cape Khersones. According to Romania, the
krainian coast is composed of eight distinct segments, determined by
arked changes in the direction of the coast.
91. Romania argues that the segments of the Ukrainian coast situated
 the north of the line running from Point S to Cape Tarkhankut do not
oject on the area of delimitation or “have a relationship of either adja-
ncy or oppositeness with the Romanian coast” and therefore are irrele-
nt for the delimitation. In particular Romania maintains that the
astline of the Karkinits’ka Gulf, immediately north of the Crimean
 ninsula, should not be counted as a relevant coast, nor “can a closing
 e drawn across or anywhere within the Karkinits’ka Gulf be treated as
 urrogate for its irrelevant coast”. Romania adds that such projections
 are made by this northern coast are in fact overtaken by the westward
ojections of the Ukrainian coast from Cape Tarkhankut to Cape
 rych.

92. Romania states that “Serpents’ Island does not form part of the
astal configuration of the Parties ; it constitutes merely a small mari-
me feature situated at a considerable distance out to sea from the coasts
 the Parties”.
93. Thus, in Romania’s view, the relevant Ukrainian coast runs
tween the last point of the land/river border between Romania and
kraine and Point S, and on the western-facing coast of the Crimean
 ninsula, runs between Cape Tarkhankut and Cape Sarych.

The total length of the relevant Ukrainian coast, as perceived by
omania, is 388.14 km (baselines 292.63 km).

                                   *
94. Ukraine contends that its own relevant coast is comprised of three
tinct sectors each of which generates an entitlement to a continental

                                                                        38

elf and an exclusive economic zone in the area subject to delimitation.
 e first sector extends from the border with Romania until a point
cated just north of Odessa. In the second sector, north of Odessa, the
krainian coast turns to the east and comprises the south-facing littoral
ong the north-western part of the Black Sea. The coast then extends
 o the Karkinits’ka Gulf. The third sector comprises the western coast
 the Crimean Peninsula from the easternmost point of the Karkinits’ka
ulf to Cape Sarych. (Both Parties agree that Ukraine’s coast east of
 pe Sarych is not relevant to the present dispute.) This portion of
kraine’s coast is characterized by the indentation created by the
arkinits’ka Gulf and by the less pronounced Gulf of Kalamits’ka. All
ree sectors of Ukraine’s coast generate 200-nautical-mile entitlements
hich extend over the entire area to be delimited with Romania.

95. Ukraine disagrees that the part of its coast from Point S to Cape
 rkhankut (630 km long) should be excluded from the relevant coast of
kraine, as claimed by Romania. It affirms that the seaward extensions
  the Ukrainian coastal fronts, including the part of Ukraine’s coast
tween Point S and Cape Tarkhankut, “converge in a southerly direc-
 n”. Ukraine points out that its south-facing coast, which Romania
eks to suppress, “generates a 200-nautical-mile entitlement throughout
e area of concern in this case”. Ukraine adds that its entire south-facing
ast generates “a 200 nautical mile continental shelf/EEZ entitlement
at extends well south of the parallel of latitude of the Romanian/
 lgarian border”, i.e., projecting into the area subject to delimitation with
omania. Thus Ukraine contends that its coast from Point S to Cape
 rkhankut is relevant for the purposes of the delimitation between the
 rties.
96. Ukraine claims that Serpents’ Island “forms part of the geographi-
   context and its coast constitutes part of Ukraine’s relevant coasts”.

97. Ukraine concludes that the total length of its relevant coast is
058 km (coastal façade 684 km ; baselines 664 km).

                                  * *
98. The Court notes that both Parties consider the coast of the Crimean
 ninsula between Cape Tarkhankut and Cape Sarych, as well as the
krainian coast from their common territorial boundary running for a
ort distance in a north and subsequently in a north-easterly direction
 til the Nistru/Dniester Firth (Romania designates this point as Point S)
  the relevant Ukrainian coast. Their disagreement concerns the coast
tending from this point until Cape Tarkhankut.
99. The Court, in considering the issue in dispute, would recall two
 nciples underpinning its jurisprudence on this issue : first, that the
and dominates the sea” in such a way that coastal projections in the

                                                                          39

award direction generate maritime claims (North Sea Continental Shelf
 ederal Republic of Germany/Denmark ; Federal Republic of Germany/
  therlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96) ; second,
at the coast, in order to be considered as relevant for the purpose of the
limitation, must generate projections which overlap with projections
om the coast of the other Party. Consequently “the submarine exten-
  n of any part of the coast of one Party which, because of its geo-
aphic situation, cannot overlap with the extension of the coast of the
her, is to be excluded from further consideration by the Court” (Con-
 ental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
 ports 1982, p. 61, para. 75).
 100. The Court therefore cannot accept Ukraine’s contention that the
asts of Karkinits’ka Gulf form part of the relevant coast. The coasts of
 s gulf face each other and their submarine extension cannot overlap
th the extensions of Romania’s coast. The coasts of Karkinits’ka Gulf
   not project in the area to be delimited. Therefore, these coasts are
cluded from further consideration by the Court. The coastline of
ahorlyts’ka Gulf and Dnieper Firth is to be excluded for the same rea-
n.
 It is to be noted that the Court has drawn a line at the entrance of
arkinits’ka Gulf from Cape Priboiny (which is the north-western tip of
 rkhankuts’ky Peninsula, slightly north of Cape Tarkhankut) to the
 int that marks the eastern end of the portion of the Ukrainian
 rthern coast that faces the area to be delimited. This point (whose
-ordinates are approximately 46° 04′ 38″ N and 32° 28′ 48″ E) lies at
e intersection of the meridian passing through Cape Priboiny with the
 rthern coast of Karkinits’ka Gulf, east of Zaliznyy Port. The Court
 s found it useful to do so with respect to such a significant feature
  Karkinits’ka Gulf, in order to make clear both what coasts will not
  under consideration and what waters will not be regarded as falling
thin the relevant area. However, the Court does not include this line
  the calculation of the total length of the Ukrainian relevant coasts,
  the line “replaces” the coasts of Karkinits’ka Gulf which, again, do
 t themselves project on the area to be delimited and thus do not gen-
ate any entitlement to the continental shelf and the exclusive economic
ne in that area. Consequently, the line does not generate any entitle-
ent.
 101. As for the remaining sectors of the Ukrainian coast between
 int S and Cape Tarkhankut, the Court observes that the north-western
 rt of the Black Sea (where the delimitation is to be carried out) in its
dest part measures slightly more than 200 nautical miles and its extent
om north to south does not exceed 200 nautical miles. As a result of this
ographical configuration, Ukraine’s south-facing coast generates pro-
 tions which overlap with the maritime projections of the Romanian
ast. Therefore, the Court considers these sectors of Ukraine’s coast as
 evant coasts (see sketch-map No. 4, p. 94).
 102. The coast of Serpents’ Island is so short that it makes no real dif-

                                                                       40

 ence to the overall length of the relevant coasts of the Parties. The
ourt will later examine whether Serpents’ Island is of relevance for the
oice of base points (see paragraph 149 below).

103. The length of the relevant coast of Ukraine is approximately
5 km.

                                 * *
104. The Court notes that on the basis of its determination of what
nstitutes the relevant coasts, the ratio for the coastal lengths between
omania and Ukraine is approximately 1:2.8.
105. The second aspect mentioned by the Court in terms of the role of
 evant coasts in the context of the third stage of the delimitation proc-
  (see paragraph 78 above) will be dealt with below in Section 11.

                    6. RELEVANT MARITIME AREA
106. Romania maintains that the relevant area in the north is bor-
red by the line running from Point S to Cape Tarkhankut. In the
uth, the area is bordered by the line equidistant between the adjacent
omanian and Bulgarian coasts, the median line between the opposite
omanian and Turkish coasts and the delimitation line agreed upon by
e USSR and Turkey, to which agreement Ukraine has succeeded. In
e south-east the area is bordered by the meridian uniting Cape Sarych
th the delimitation boundary between Ukraine and Turkey. In the west
 d in the east the limits of the area are formed by the Romanian and
krainian relevant coasts.
107. According to Romania, the relevant area means all of the waters
nerated by projections from the relevant coasts, whether or not claimed
 the other State. Romania states that there are three points of disagree-
ent between the Parties as to the relevant area. First, Romania asserts
at the coasts looking on to the area north of the line between Point S
 d Cape Tarkhankut are all Ukrainian, and that none of them are rele-
nt to the delimitation. Second, it states that the south-western limit is
presented by the equidistance line between the adjacent Romanian and
 lgarian coasts and that to move the line south of this equidistance line
uld prejudge potential interests of Bulgaria in this maritime area.
 ird, Romania claims that the south-eastern triangle lying between
kraine and Turkey also forms part of the relevant area because it is
thin a 200-mile projection from the Romanian coasts (see sketch-map
o. 2, p. 91).

                                  *
                                                                      41

 108. Ukraine contends that the western limit of the relevant area cor-
 ponds to the Romanian coastline between the land boundaries with
 lgaria and Ukraine and the stretch of the Ukrainian coast extending
om the border with Romania until a point located just north of Odessa.
 the north, the relevant area is bordered by the south-facing Ukrainian
ast. In the east, the relevant area is bordered by the west-facing coast
 the Crimean Peninsula terminating at Cape Sarych. The southern limit
  the relevant area is a line drawn perpendicular from the mainland
ast from the point where the Bulgarian/Romanian land border reaches
e Black Sea until a point between the Romanian and Ukrainian coasts
here the interests of third States potentially come into play. This point
then connected to Cape Sarych by a straight line which represents the
uth-eastern limit of the relevant area.

109. Ukraine contends, as to the three points of disagreement, that all
 its south-facing coast between Point S and Cape Tarkhankut generates
aritime entitlements to a distance of 200 nautical miles and that this
aritime area, accordingly, forms part of the relevant area. Ukraine
rther argues that the relevant area should include a sliver of maritime
ea situated between the hypothetical equidistance line between Roma-
a and Bulgaria and a straight line connecting the endpoint of the
omanian/Bulgarian land boundary and a potential tripoint with Bul-
ria and/or Turkey. Finally, according to Ukraine, a large triangle lying
tween Ukraine and Turkey has already been subject to a prior delimi-
 ion between the former Soviet Union and Turkey to which Ukraine
 s succeeded and therefore does not form part of the relevant area (see
etch-map No. 3, p. 92).

                                 * *
 110. The Court observes that the legal concept of the “relevant area”
 s to be taken into account as part of the methodology of maritime
limitation.
 In the first place, depending on the configuration of the relevant coasts
 the general geographical context and the methods for the construction
  their seaward projections, the relevant area may include certain mari-
me spaces and exclude others which are not germane to the case in
 nd.
 Secondly, the relevant area is pertinent to checking disproportionality.
  is will be done as the final phase of the methodology. The purpose
  delimitation is not to apportion equal shares of the area, nor indeed
oportional shares. The test of disproportionality is not in itself a
ethod of delimitation. It is rather a means of checking whether the
limitation line arrived at by other means needs adjustment because of
  ignificant disproportionality in the ratios between the maritime areas
hich would fall to one party or other by virtue of the delimitation line

                                                                       42

rived at by other means, and the lengths of their respective coasts.
111. The Court further observes that for the purposes of this final
ercise in the delimitation process the calculation of the relevant area
 es not purport to be precise and is approximate. The object of
limitation is to achieve a delimitation that is equitable, not an equal
portionment of maritime areas (North Sea Continental Shelf (Federal
 public of Germany/Denmark ; Federal Republic of Germany/Netherlands),
dgment, I.C.J. Reports 1969, p. 22, para. 18 ; Maritime Delimitation in
e Area between Greenland and Jan Mayen (Denmark v. Norway),
dgment, I.C.J. Reports 1993, p. 67, para. 64).

112. The Court notes that the delimitation will occur within the
closed Black Sea, with Romania being both adjacent to, and opposite
kraine, and with Bulgaria and Turkey lying to the south. It will stay
 rth of any area where third party interests could become involved.

 113. As for the area in the north disputed by the Parties as a relevant
ea, as explained above (see paragraph 101) the Court has taken the
 w that the section of the Ukrainian coast situated to the north of the
 e running from Point S to Cape Tarkhankut is a relevant coast for the
 rpose of the delimitation exercise. Accordingly, the area lying immedi-
ely south of this coast, but excluding Karkinits’ka Gulf at the mouth of
hich the Court has drawn a line (see paragraph 100 above), falls within
e delimitation area.

 114. The Court turns now to the southern limit of the relevant area.
 e Parties hold different views as to whether the south-western and
uth-eastern “triangles” should be included in the relevant area (see
 ragraphs 107 and 109 above and sketch-map Nos. 2 and 3, pp. 91-92).
 e Court notes that in both these triangles the maritime entitlements of
omania and Ukraine overlap. The Court is also aware that in the
uth-western triangle, as well as in the small area in the western corner
 the south-eastern triangle, entitlements of third parties may come into
ay. However where areas are included solely for the purpose of approxi-
ate identification of overlapping entitlements of the Parties to the case,
hich may be deemed to constitute the relevant area (and which in due
urse will play a part in the final stage testing for disproportionality),
 rd party entitlements cannot be affected. Third party entitlements
ould only be relevant if the delimitation between Romania and Ukraine
 re to affect them.

In light of these considerations, and without prejudice to the position
 any third State regarding its entitlements in this area, the Court finds
appropriate in the circumstances of this case to include both the south-
 stern and the south-eastern triangles in its calculation of the relevant
ea (see sketch-map No. 5, p. 102).

                                                                       43

                   7. DELIMITATION METHODOLOGY

115. When called upon to delimit the continental shelf or exclusive
onomic zones, or to draw a single delimitation line, the Court proceeds
 defined stages.
116. These separate stages, broadly explained in the case concerning
 ntinental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J.
 ports 1985, p. 46, para. 60), have in recent decades been specified with
ecision. First, the Court will establish a provisional delimitation line,
 ng methods that are geometrically objective and also appropriate for
e geography of the area in which the delimitation is to take place. So
  as delimitation between adjacent coasts is concerned, an equidistance
 e will be drawn unless there are compelling reasons that make this un-
asible in the particular case (see Territorial and Maritime Dispute
tween Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
onduras), Judgment, I.C.J. Reports 2007 (II), p. 745, para. 281). So
  as opposite coasts are concerned, the provisional delimitation line will
nsist of a median line between the two coasts. No legal consequences
 w from the use of the terms “median line” and “equidistance line”
 ce the method of delimitation is the same for both.
117. Equidistance and median lines are to be constructed from the
ost appropriate points on the coasts of the two States concerned, with
 rticular attention being paid to those protuberant coastal points situ-
ed nearest to the area to the delimited. The Court considers elsewhere
 e paragraphs 135-137 below) the extent to which the Court may, when
nstructing a single-purpose delimitation line, deviate from the base
 ints selected by the Parties for their territorial seas. When construction
  a provisional equidistance line between adjacent States is called for,
e Court will have in mind considerations relating to both Parties’ coast-
 es when choosing its own base points for this purpose. The line thus
 opted is heavily dependent on the physical geography and the most
award points of the two coasts.
118. In keeping with its settled jurisprudence on maritime delimita-
 n, the first stage of the Court’s approach is to establish the provisional
uidistance line. At this initial stage of the construction of the provi-
 nal equidistance line the Court is not yet concerned with any relevant
 cumstances that may obtain and the line is plotted on strictly geometri-
   criteria on the basis of objective data.
119. In the present case the Court will thus begin by drawing a provi-
 nal equidistance line between the adjacent coasts of Romania and
kraine, which will then continue as a median line between their oppo-
e coasts.
120. The course of the final line should result in an equitable solution
 rticles 74 and 83 of UNCLOS). Therefore, the Court will at the next,
cond stage consider whether there are factors calling for the adjustment
  shifting of the provisional equidistance line in order to achieve an
uitable result (Land and Maritime Boundary between Cameroon and

                                                                        44

45

 geria (Cameroon v. Nigeria : Equatorial Guinea intervening), Judg-
 nt, I.C.J. Reports 2002, p. 441, para. 288). The Court has also made
 ar that when the line to be drawn covers several zones of coincident
 isdictions, “the so-called equitable principles/relevant circumstances
ethod may usefully be applied, as in these maritime zones this method
also suited to achieving an equitable result” (Territorial and Maritime
 spute between Nicaragua and Honduras in the Caribbean Sea (Nica-
gua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 741,
 ra. 271).
 121. This is the second part of the delimitation exercise to which the
ourt will turn, having first established the provisional equidistance line.
 122. Finally, and at a third stage, the Court will verify that the line (a
ovisional equidistance line which may or may not have been adjusted
  taking into account the relevant circumstances) does not, as it stands,
 d to an inequitable result by reason of any marked disproportion
tween the ratio of the respective coastal lengths and the ratio between
e relevant maritime area of each State by reference to the delimitation
 e (see paragraphs 214-215). A final check for an equitable outcome
tails a confirmation that no great disproportionality of maritime areas
evident by comparison to the ratio of coastal lengths.

 This is not to suggest that these respective areas should be proportion-
e to coastal lengths — as the Court has said “the sharing out of the
 ea is therefore the consequence of the delimitation, not vice versa”
Maritime Delimitation in the Area between Greenland and Jan Mayen
Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64).

      8. ESTABLISHMENT OF THE PROVISIONAL EQUIDISTANCE LINE

                     8.1. Selection of Base Points

 123. Romania contends that the base points to take into account
  constructing the provisional equidistance line between the adjacent
 asts of Romania and Ukraine are, on the Romanian coast, the seaward
 d of the Sulina dyke, and on the Ukrainian coast, a point on the
 and of Kubansky and Cape Burnas. In addition, in Romania’s view,
e base points on the opposite coasts of Romania and Ukraine
e, on the Romanian coast, the seaward end of the Sulina dyke and
e outer end of the Sacalin Peninsula, and on the Ukrainian coast,
  pes Tarkhankut and Khersones. Romania points out that the Sac-
 n Peninsula and the most seaward point of the Sulina dyke are
mong the relevant points notified by Romania to the United Nations
 der Article 16 of UNCLOS for measuring the breadth of the ter-
 orial sea.
 124. Romania argues that no account should be taken of Serpents’

                                                                        46

and as a base point for the purposes of constructing the provisional
uidistance line. It claims that Serpents’ Island is a rock incapable of
staining human habitation or economic life of its own, “therefore
ving no exclusive economic zone or continental shelf, as provided for
 Article 121 (3) of the 1982 UNCLOS”. Romania further points out
at when Ukraine notified the United Nations of the co-ordinates of its
selines used for measuring the breadth of its territorial sea, it made no
 erence at all to Serpents’ Island. In addition, it considers that using
 s island as a base point would result in an inordinate distortion of the
astline.

                                   *
125. Ukraine contends for its part that the relevant base points for the
nstruction of the provisional equidistance line are situated on the base-
 es of each of the Parties from which the breadth of their territorial sea
measured. Thus, on the Romanian coast, Ukraine has used the base
 ints situated on the Sulina dyke and the Sacalin Peninsula. On its own
asts, it has taken as a reference “the base points situated on Serpents’
and” and the tip of Cape Khersones. Ukraine indicates, however, that
omania’s use of a point situated at the seaward tip of the Sulina dyke
 s a huge effect on Romania’s provisional equidistance line. It also con-
 ers that

   “[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”.
 126. Ukraine maintains that because Serpents’ Island has a coast, it
 lows that it has a baseline. As a result, it states that there are base
 ints on that baseline that can be used for plotting the provisional equi-
 tance line. It points out that, contrary to what Romania claims, “nor-
al” baselines, defined as the low-water mark around the coast, do not
 ve to be notified to the United Nations, as straight baselines have to
. Ukraine therefore contends that given its proximity to the Ukrainian
ainland, Serpents’ Island should clearly be taken into account as one of
e relevant base points for the construction of the provisional equidis-
nce line. It notes that the belt of territorial sea which surrounds Ser-
nts’ Island partly overlaps with the area of territorial sea bordering the
krainian mainland. Consequently, “[t]his island therefore represents
hat is commonly termed a coastal island”.

                                 * *
                                                                       47

 127. In this stage of the delimitation exercise, the Court will identify
e appropriate points on the Parties’ relevant coast or coasts which
ark a significant change in the direction of the coast, in such a way that
e geometrical figure formed by the line connecting all these points
flects the general direction of the coastlines. The points thus selected on
ch coast will have an effect on the provisional equidistance line that
kes due account of the geography.
 128. The Court observes that in this instance, the geography shows
at the capacity of the coasts to generate overlapping titles indicates the
 stence of two areas : in one case, the coasts are adjacent ; in the other,
ey are opposite. In practice, the first conclusion which the Court draws
om this is that, on the Romanian coast, the significant base points from
hich the equidistance line and the median line must be established are
e same, since this coast is both adjacent and opposite to the Ukrainian
 ast. The second conclusion is that, as the Ukrainian coast consists of
 o portions — one adjacent to the Romanian coast, the other opposite
 it — the base points to take into account must be defined separately,
cording to whether the adjacent or opposite portion is concerned. The
 rd conclusion is the identification of a turning-point on the equidis-
nce line where the effects of adjacency give way to those of the coasts
  the opposite side, resulting in a change in the direction of the line.
 stly, the Court will need to consider the relevance or otherwise of Ser-
 nts’ Island in terms of the choice of base points.

129. On the Romanian coast from the border with Bulgaria, the Court
ll first consider the Sacalin Peninsula. This is the point at which the
 ection followed by the Romanian coast from the border between
omania and Bulgaria turns almost perpendicularly towards the north.
   this place, the coasts of Romania and Ukraine are opposite one
 other. The significance of the Sacalin Peninsula in terms of the choice
 base points is questioned by Ukraine, which describes it as a spit of
nd. However, the Court observes that the peninsula belongs to the
ndmass and forms part of the Romanian mainland : its permanent
 covering at high tide is not contested. The geomorphological features
 the peninsula and its possibly sandy nature have no bearing on the
 ments of its physical geography which are relevant for maritime delimi-
 ion. For these reasons, the Court considers it appropriate, for the pur-
 se of establishing the provisional equidistance line, to use a base point
  the Sacalin Peninsula (44° 50′ 28″ N and 29° 36′ 52″ E), which happens
 correspond to the point notified by Romania to the United Nations as
base point pursuant to Article 16 of UNCLOS.

130. The Court will next consider whether any point on the Romanian
ast of the Musura Bay may serve as a base point. The southern head-
nd of this bay is the most prominent point of the Romanian coast in the

                                                                        48

 ection of the Crimea and is also situated in the area where the coasts
 the two States are adjacent. These two characteristics prompt its selec-
 n for the purpose of establishing the provisional equidistance line.
owever, because of the construction on that southern headland of a
5 km-long dyke out to sea, which accordingly extends this feature, it is
cessary to choose either the seaward end of the dyke or the end where
adjoins the mainland.
131. In this respect, the Court observes that the geometrical nature of
e first stage of the delimitation exercise leads it to use as base points
ose which the geography of the coast identifies as a physical reality at
e time of the delimitation. That geographical reality covers not only the
 ysical elements produced by geodynamics and the movements of the
a, but also any other material factors that are present.

 132. In light of the fact that the breadth of the exclusive economic
ne and the continental shelf is measured from the baselines from which
e territorial sea is measured (UNCLOS, Arts. 57 and 76), the Court
st has to consider whether the Sulina dyke could be regarded as “per-
anent harbour works which form an integral part of the harbour sys-
m”, within the meaning of Article 11 of UNCLOS, which Article the
ourt recalls concerns the delimitation of the territorial sea. It reads as
 lows :
     “For the purpose of delimiting the territorial sea, the outermost
   permanent harbour works which form an integral part of the har-
   bour system are regarded as forming part of the coast. Off-shore
   installations and artificial islands shall not be considered as perma-
   nent harbour works.”

133. The permanent nature of the Sulina dyke not having been ques-
 ned, the Court will have to consider whether this structure can be
scribed as “harbour works” which form “an integral part of the har-
 ur system”. The term “works” denotes a combination of apparatus,
 uctures and facilities installed for a specific purpose. The expression
 arbour works” “which form an integral part of the harbour system” is
 t defined in the Geneva Convention on the Territorial Sea and Con-
 uous Zone or in UNCLOS ; these are generally installations which
ow ships to be harboured, maintained or repaired and which permit or
cilitate the embarkation and disembarkation of passengers and the
ading or unloading of goods.
134. The Court notes, however, that the functions of a dyke are dif-
 ent from those of a port : in this case, the Sulina dyke may be of use in
otecting shipping destined for the mouth of the Danube and for the
 rts situated there. The difference between a port and a dyke extending
awards has previously been discussed in the travaux préparatoires of
 ticle 8 of the Geneva Convention on the Territorial Sea and Contigu-
 s Zone. In 1954, the Special Rapporteur of the ILC observed that

                                                                       49

 ykes used for the protection of the coast constituted a separate prob-
m and did not come under either Article 9 (ports) or Article 10 (road-
 ads)”. Subsequently, the concept of a “dyke” was no longer used, and
 erence was made to “jetties” serving to protect coasts from the sea.
 e first sentence of Article 11 of UNCLOS corresponds, apart from one
 nor change in the wording, to that of Article 8 of the Convention on
e Territorial Sea and Contiguous Zone. The second sentence, providing
at “permanent harbour works” shall not include “off-shore installa-
 ns and artificial islands”, is new. The expert at the 1958 Conference
 ted that “harbour works such as jetties [are regarded] as part of . . .
nd territory”. It should be noted, however, that the ILC included the
 lowing comment in its report to the General Assembly :

      “(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
ecisely the limit beyond which a dyke, jetty or works would no longer
rm “an integral part of the harbour system”. The Court concludes from
 s that there are grounds for proceeding on a case-by-case basis, and
at the text of Article 11 of UNCLOS and the travaux préparatoires do
 t preclude the possibility of interpreting restrictively the concept of
 rbour works so as to avoid or mitigate the problem of excessive length
entified by the ILC. This may be particularly true where, as here, the
 estion is one of delimitation of areas seaward of the territorial sea.

 135. With regard to the use of the Sulina dyke as a base point for the
esent delimitation, the Court must consider the relevance of Romania’s
 tification to the United Nations under Article 16 of UNCLOS, in
hich Romania used the seaward end of the Sulina dyke as a base point
r drawing the baseline for its territorial sea. This choice of base points
 s not contested by Ukraine.

136. Article 16 provides that “the base lines for measuring the breadth
 the territorial sea . . . and the lines of delimitation [of the territorial
a] shall be shown on charts” (paragraph 1) and that “the coastal State
all deposit a copy of each such chart or list with the Secretary-General
 the United Nations”. Since Article 57 (regarding the breadth of the
clusive economic zone) and Article 76, paragraph 1, (regarding the
finition of the continental shelf) of UNCLOS stipulate that these mari-
me zones can extend to a distance of 200 nautical miles “from the base-

                                                                         50

 es from which the breadth of the territorial sea is measured”, the ques-
 n arises as to whether the same seaward end of the Sulina dyke has to
  retained for the purpose of the present delimitation.
 137. The Court observes that the issue of determining the baseline for
e purpose of measuring the breadth of the continental shelf and the
clusive economic zone and the issue of identifying base points for
awing an equidistance/median line for the purpose of delimiting the
ntinental shelf and the exclusive economic zone between adjacent/
 posite States are two different issues.
 In the first case, the coastal State, in conformity with the provisions of
NCLOS (Articles 7, 9, 10, 12 and 15), may determine the relevant base
 ints. It is nevertheless an exercise which has always an international
pect (see Fisheries (United Kingdom v. Norway), Judgment, I.C.J.
 ports 1951, p. 132). In the second case, the delimitation of the mari-
me areas involving two or more States, the Court should not base itself
  ely on the choice of base points made by one of those Parties. The
ourt must, when delimiting the continental shelf and exclusive eco-
 mic zones, select base points by reference to the physical geography of
e relevant coasts.
 138. As for the specific characteristics of the seaward end of the Sulina
 ke as a relevant base point for constructing the provisional equidis-
nce line, the Court points out that, irrespective of its length, no
nvincing evidence has been presented that this dyke serves any direct
 rpose in port activities. For these reasons, the Court is not satisfied that
e seaward end of the Sulina dyke is a proper base point for the pur-
 ses of the construction of a provisional equidistance line delimiting the
ntinental shelf and the exclusive economic zones.
 139. On the other hand, while the landward end of the dyke may not
  an integral part of the Romanian mainland, it is a fixed point on it.
  e land at this point is protected from shifts in the coastline due to
arine processes. As a relevant base point for the purposes of the first
  ge of delimitation, it has the advantage, unlike the seaward end of the
 ke, of not giving greater importance to an installation than to the
 ysical geography of the landmass.
 140. For these reasons, the Court is of the opinion that the landward
d of the Sulina dyke where it joins the Romanian mainland should be
ed as a base point for the establishment of the provisional equidistance
 e.
 141. The Court therefore concludes that it will use the Sacalin Penin-
  a (44° 50′ 28″ N and 29° 36′ 52″ E) and the landward end of the Sulina
 ke (45° 09′ 51.9″ N and 29° 43′ 14.5″ E) 2 as base points on the Roma-
an coast.

                                      *

 Co-ordinates provided by the Parties in Pulkovo datum.

                                                                          51

142. The Court will now turn to identifying the relevant base points on
kraine’s coast, starting with the sector of adjacent coasts.

143. The Court deems it appropriate in this first sector to use the
uth-eastern tip of Tsyganka Island on the Ukrainian side, which is the
unterpart of the landward end of the Sulina dyke on the Romanian
 e. Its location is significant, because in this area of adjacency it is the
ost prominent point on the Ukrainian coast.
144. In this sector of adjacent coasts, the Court needs also to consider
e relevance of the Ukrainian base point situated on the island of Kuban-
y as a base point for use in constructing the provisional equidistance
 e. The Court notes that this base point does not produce any effect on
e equidistance line plotted by reference to the base point on Tsyganka
and on the Ukrainian coast and the base point on the landward end of
e Sulina dyke on the Romanian coast. This base point is therefore to be
garded as irrelevant for the purposes of the present delimitation.
145. The Court will now consider the base points on the section of
kraine’s coast opposite Romania’s coast.
146. It will start with Cape Tarkhankut, the most seaward point facing
omania’s coast on the Crimean coast. The Crimean coastline juts out
 nificantly here, and its configuration makes this cape an appropriate
oice as a relevant base point.
147. Cape Khersones, another point on the Crimean coast where the
nd protrudes into the sea, also juts out markedly, though less so than
 pe Tarkhankut. This configuration is sufficient to justify choosing
 pe Khersones as a relevant base point.

148. The Court therefore concludes that it will use Tsyganka Island
5° 13′ 23.1″ N and 29° 45′ 33.1″ E), Cape Tarkhankut (45° 20′ 50″ N and
° 29′ 43″ E) and Cape Khersones (44° 35′ 04″ N and 33° 22′ 48″ E) 3 as
se points on the Ukrainian coast.

149. Serpents’ Island calls for specific attention in the determination of
e provisional equidistance line. In connection with the selection of base
 ints, the Court observes that there have been instances when coastal
ands have been considered part of a State’s coast, in particular when a
ast is made up of a cluster of fringe islands. Thus in one maritime
limitation arbitration, an international tribunal placed base points
ng on the low water line of certain fringe islands considered to consti-
 e part of the very coastline of one of the Parties (Award of the Arbitral
ibunal in the Second Stage of the Proceedings between Eritrea and
 men (Maritime Delimitation), 17 December 1999, RIAA, Vol. XXII,
 . 367-368, paras. 139-146). However, Serpents’ Island, lying alone and

 Co-ordinates provided by the Parties in Pulkovo datum.

                                                                         52

me 20 nautical miles away from the mainland, is not one of a cluster of
nge islands constituting “the coast” of Ukraine.

To count Serpents’ Island as a relevant part of the coast would amount
  grafting an extraneous element onto Ukraine’s coastline ; the conse-
 ence would be a judicial refashioning of geography, which neither the
w nor practice of maritime delimitation authorizes. The Court is thus of
e view that Serpents’ Island cannot be taken to form part of Ukraine’s
astal configuration (cf. the islet of Filfla in the case concerning Conti-
ntal Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
85, p. 13).
For this reason, the Court considers it inappropriate to select any base
 ints on Serpents’ Island for the construction of a provisional equidis-
nce line between the coasts of Romania and Ukraine. Further aspects
evant to Serpents’ Island are dealt with at paragraphs 179 to 188
low.

       8.2. Construction of the Provisional Equidistance Line
150. Romania argues that the first segment of the maritime boundary
limiting the maritime areas of the two States situated beyond their ter-
orial seas was established by successive agreements between Romania
d the Soviet Union : from the final point of the boundary separating
e territorial seas of the two States at 45° 05′ 21″ N and 30° 02′ 27″ E, the
aritime boundary passes along the 12-nautical-mile arc of the circle
ound Serpents’ Island until it reaches a point situated on that arc at
° 14′ 20″ N and 30° 29′ 12″ E (see Section 4). Romania contends that the
aritime boundary beyond that point was never delimited between Roma-
a and the USSR or Ukraine. Romania draws a provisional equidis-
nce line from the final point of the land/river boundary between the two
ates taking into account the salient base points of the adjacent Roma-
an and Ukrainian coasts. These are : on the Romanian coast, the sea-
  rd end of the Sulina dyke ; and on the Ukrainian coast, the island of
ubansky and Cape Burnas. As the point lying on the arc around Ser-
nts’ Island at 45° 14′ 20″ N and 30° 29′ 12″ E, is not situated on the
uidistance line, but about 2.5 nautical miles to the north, the delimita-
 n of the maritime boundary beyond this point must, in Romania’s
  w, start by joining it to the provisional equidistance line. The line thus
awn passes through the point at 45° 11′ 59″ N and 30° 49′ 16″ E, situ-
ed practically midway between the 12-nautical-mile arc around Ser-
nts’ Island and the tripoint as between the Romanian and Ukrainian
 jacent coasts and the opposite Crimean coast, situated at 45° 09′ 45″ N
 d 31° 08′ 40″ E. Romania contends that, from this point southwards,
e delimitation is governed by the opposite Romanian and Ukrainian
asts.

                                                                         53

151. Romania calculates the median line taking into account the sali-
t base points on the relevant opposite coasts of the two States (the sea-
 rd end of the Sulina dyke and the outer end of the Sacalin Peninsula
  the Romanian coast, and Capes Tarkhankut and Khersones on the
krainian coast). Romania’s equidistance line in the sector of opposite
asts thus coincides with the segment of the median line running from,
 the north, the tripoint as between the Romanian and Ukrainian adja-
nt coasts and the opposite Crimean coast to, in the south, the point
yond which the interests of third States may be affected, which Roma-
a situates at 43° 26′ 50″ N and 31° 20′ 10″ E.

                                    *
 152. Ukraine maintains that the provisional equidistance line must be
nstructed by reference to the base points on each Party’s baselines from
hich the breadth of its territorial sea is measured. Thus, on the Roma-
an side, Ukraine uses the base points at the seaward end of the Sulina
 ke and on the Sacalin Peninsula. On its own side, it uses the base
 ints on Serpents’ Island and at the tip of Cape Khersones. The provi-
  nal equidistance line advocated by Ukraine starts at the point of inter-
ction of the territorial seas of the Parties identified in Article 1 of the
 03 State Border Régime Treaty (45° 05′ 21″ N and 30° 02′ 27″ E). The
 e then runs in a southerly direction until the point at 44° 48′ 24″ N and
 ° 10′ 56″ E, after which it turns to run in a south-easterly direction until
e point at 43° 55′ 33″ N and 31° 23′ 26″ E and thereafter continues due
uth.

                                   * *
153. The Court recalls that the base points which must be used in con-
 ucting the provisional equidistance line are those situated on the Saca-
  Peninsula and the landward end of the Sulina dyke on the Romanian
ast, and Tsyganka Island, Cape Tarkhankut and Cape Khersones on
e Ukrainian coast.
154. In its initial segment the provisional equidistance line between the
omanian and Ukrainian adjacent coasts is controlled by base points
cated on the landward end of the Sulina dyke on the Romanian coast
 d south-eastern tip of Tsyganka Island on the Ukrainian coast. It runs
 a south-easterly direction, from a point lying midway between these
 o base points, until Point A (with co-ordinates 44° 46′ 38.7″ N and
° 58′ 37.3″ E) where it becomes affected by a base point located on the
 calin Peninsula on the Romanian coast. At Point A the equidistance
 e slightly changes direction and continues to Point B (with co-
dinates 44° 44′ 13.4″ N and 31° 10′ 27.7″ E) where it becomes affected by
e base point located on Cape Tarkhankut on Ukraine’s opposite coasts.

                                                                          54

 Point B the equidistance line turns south-south-east and continues to
int C (with co-ordinates 44° 02′ 53.0″ N and 31° 24′ 35.0″ E), calculated
th reference to base points on the Sacalin Peninsula on the Romanian
ast and Capes Tarkhankut and Khersones on the Ukrainian coast.
om Point C the equidistance line, starting at an azimuth of 185° 23′ 54.5″ 4,
ns in a southerly direction. This line remains governed by the base
ints on the Sacalin Peninsula on the Romanian coast and Cape Kher-
nes on the Ukrainian coast.

(For the construction of the equidistance line see sketch-maps Nos. 6
d 7, pp. 114-115.)

                        9. RELEVANT CIRCUMSTANCES

155. As the Court indicated above (paragraphs 120-121), once the pro-
 ional equidistance line has been drawn, it shall “then [consider] whether
ere are factors calling for the adjustment or shifting of that line in order
 achieve an ‘equitable result’” (Land and Maritime Boundary between
 meroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea inter-
ning), Judgment, I.C.J. Reports 2002, p. 441, para. 288). Such factors
 ve usually been referred to in the jurisprudence of the Court, since the
orth Sea Continental Shelf (Federal Republic of Germany/Denmark ;
 deral Republic of Germany/Netherlands) cases, as the relevant circum-
 nces (Judgment, I.C.J. Reports 1969, p. 53, para. 53). Their function is
 verify that the provisional equidistance line, drawn by the geometrical
ethod from the determined base points on the coasts of the Parties is
 t, in light of the particular circumstances of the case, perceived as in-
uitable. If such would be the case, the Court should adjust the line in
der to achieve the “equitable solution” as required by Articles 74, para-
aph 1, and 83, paragraph 1, of UNCLOS.

156. The Parties suggested and discussed several factors which they
nsider as the possible relevant circumstances of the case. They arrive at
 ferent conclusions. Romania argues that its provisional equidistance
 e achieves the equitable result and thus does not require any adjust-
ent. Ukraine, on the other hand, submits that there are relevant circum-
 nces which call for the adjustment of its provisional equidistance line
 y moving the provisional line closer to the Romanian coast”.

  The geographical co-ordinates used by the Parties for the drawing of the equidistance
es proposed by them are given by reference to Pulkovo datum. The Court, for its part,
  chosen to use WGS 84 datum. The positions of Points A, B and C are given by ref-
nce to that geodetic datum. The equidistance line described in this paragraph is a geo-
 ic line and the azimuth given is a geodetic azimuth based on WGS 84 datum.

                                                                                55

157. Before addressing the relevant circumstances referred to by the
 rties, the Court wishes to recall that the provisional equidistance line it
s drawn in Section 8 above does not coincide with the provisional lines
awn either by Ukraine or Romania. Therefore, it is this line, drawn by
e Court, and not by Romania or Ukraine, which will be in the focus of
e Court’s attention when analysing what the Parties consider to be the
evant circumstances of the case.

           9.1. Disproportion between Lengths of Coasts
158. The circumstance which Ukraine invokes in order to justify its
 im that the provisional equidistance line should be adjusted by moving
e delimitation line closer to Romania’s coast is the disparity between
e length of the Parties’ coasts abutting on the delimitation area.

                                    *
 159. Romania acknowledges that the general configuration of the
 asts may constitute, given the particular geographical context, a rele-
 nt circumstance that can be taken into consideration with a view to
 justing the equidistance line. However, with regard specifically to any
  proportion between the lengths of the Parties’ coasts, Romania notes
at in a maritime delimitation it is rare for the disparities between the
 rties’ coasts to feature as a relevant circumstance. Moreover, in the
esent case, there is no manifest disparity in the respective coastal
ngths of Romania and Ukraine.
 160. Romania adds that in any event proportionality should be dealt
 th “only after having identified the line resulting from the application
  the equitable principles/special circumstances approach”.

161. In conclusion Romania is of the view that the alleged “geographi-
 predominance of Ukraine in the area” and “the disparity between
astal lengths” of the Parties should not be considered relevant circum-
nces in the case.

                                    *
162. With regard to the role which may be played by the coastal con-
uration, Ukraine states that there is a broad margin of appreciation as
 its scope as a relevant circumstance. In the circumstances of the cur-
nt case, Ukraine argues that the coastal configuration clearly shows the
ographical predominance of Ukraine in the relevant area which also
 ds an expression in terms of coastal length : the Ukrainian relevant
ast is more than four times longer than the coast of Romania. Ukraine
 tes that in almost all maritime delimitation cases dealt with by inter-
tional tribunals, “comparison of the lengths of the relevant coasts has
cupied a quite significant place and even played a decisive role in a
 mber of the decisions taken”. Thus, according to Ukraine, the marked

                                                                         56

57

58

proportion between lengths of the Parties’ coasts is a relevant circum-
 nce to be taken into account in the construction of a delimitation line
d should result in a shifting of the provisional equidistance line in
der to produce an equitable result.

                                  * *
 163. The Court observes that the respective length of coasts can play
  role in identifying the equidistance line which has been provisionally
 ablished. Delimitation is a function which is different from the appor-
 nment of resources or areas (see North Sea Continental Shelf (Federal
 public of Germany/Denmark ; Federal Republic of Germany/Nether-
nds), Judgment, I.C.J. Reports 1969, p. 22, para. 18). There is no prin-
ple of proportionality as such which bears on the initial establishment
 the provisional equidistance line.
 164. Where disparities in the lengths of coasts are particularly marked,
e Court may choose to treat that fact of geography as a relevant cir-
 mstance that would require some adjustments to the provisional equi-
 tance line to be made.
 165. In the case concerning Land and Maritime Boundary between
 meroon and Nigeria (Cameroon v. Nigeria ; Equatorial Guinea inter-
ning), the Court acknowledged “that a substantial difference in the
ngths of the parties’ respective coastlines may be a factor to be taken
 o consideration in order to adjust or shift the provisional delimitation
 e” (Judgment, I.C.J. Report 2002, p. 446, para. 301 ; emphasis added),
 hough it found that in the circumstances there was no reason to shift
e equidistance line.
 166. In the case concerning Maritime Delimitation in the Area between
 eenland and Jan Mayen (Denmark v. Norway), the Court found that
e disparity between the lengths of the coasts of Jan Mayen and Green-
nd (approximately 1:9) constituted a “special circumstance” requiring
odification of the provisional median line, by moving it closer to the
 ast of Jan Mayen, to avoid inequitable results for both the continental
elf and the fisheries zone. The Court stated that :

      “It should, however, be made clear that taking account of the dis-
   parity 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.)
en it recalled its observation from the Continental Shelf (Libyan Arab
mahiriya/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

                                                                         59

   rights and also the method of putting that principle into operation.
   Its weakness as a basis of argument, however, is that the use of pro-
   portionality 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 par-
   ticular) 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
ngths of the relevant coasts of Malta and Libya (being in ratio 1:8) “is
  great as to justify the adjustment of the median line” (ibid., p. 50,
 ra. 68 ; emphasis added). The Court added that “the degree of such
 justment does not depend upon a mathematical operation and remains
  be examined” (ibid.).
 167. The Court further notes that in the Delimitation of the Maritime
 undary in the Gulf of Maine Area (Canada/United States of America)
se, the Chamber considered that “in certain circumstances, the appro-
  ate consequences may be drawn from any inequalities in the extent of
e coasts of two States into the same area of delimitation” (Judgment,
C.J. Reports 1984, p. 313, para. 157 ; emphasis added). However, it
ust be kept in mind that the Chamber did so in the context of discuss-
g what could be “the equitable criteria that may be taken into consid-
ation for an international maritime delimitation” (ibid., p. 312,
 ra. 157 ; emphasis added). It then further elaborated on this point by
  ting
   “[...] that to take into account the extent of the respective coasts of the
   Parties concerned does not in itself constitute either a criterion serv-
   ing 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.)

168. In the present case, however the Court sees no such particularly
arked disparities between the relevant coasts of Ukraine and Romania

                                                                           60

at would require it to adjust the provisional equidistance line at this
ncture. Although there is doubtless a difference in the length of the rel-
ant coasts of the Parties, the Court recalls that it previously (see para-
aph 100 above) excluded the coast of Karkinits’ka Gulf (measuring
me 278 km) from further consideration. The Court further notes that it
nnot disregard the fact that a good portion of the Ukrainian coast
hich it considers as relevant projects into the same area as other seg-
ents of the Ukrainian coast, thus strengthening but not spatially expand-
g the Ukrainian entitlement.

 9.2. The Enclosed Nature of the Black Sea and the Delimitations
                 Already Effected in the Region
 169. Romania notes that the enclosed nature of the Black Sea is also a
 evant circumstance as part of the wider requirement to take account of
e geographical context of the area to be delimited. According to
omania, in considering the equitable nature of an equidistance line, the
 eneral maritime geography” of the Black Sea must be assessed. In
omania’s view, this geographical factor is to be considered together
th any pre-existing delimitation agreements so that any new delimita-
 n should not dramatically depart from the method previously used in
e same sea between other riparian States in order not to produce an
equitable result.
 170. Romania contends that all the delimitation agreements concluded
 the Black Sea used equidistance as the method for the delimitation of
e continental shelf and the exclusive economic zones. Romania adds
at the lines of delimitation established by two of these agreements end
th provisionally defined segments, the definitive course of which is to
pend on subsequent discussions, and that the reason for this was that
e Parties wished to avoid prejudicing the interests of third parties and
at they had Romania in mind.
 171. Romania concludes that the Black Sea’s nature as an enclosed sea
 d its rather small size, together with the agreed solutions established in
e delimitation agreements in force, constitute a relevant circumstance
hich must be taken into account in the delimitation process for Roma-
a’s and Ukraine’s maritime areas.

                                   *
172. In Ukraine’s view, there is “no support in law or in the factual
ntext” for Romania’s arguments regarding the characterization of the
ack Sea as an enclosed sea and the importance of maritime delimitation
reements previously concluded between certain States bordering the
ack Sea. According to Ukraine, there is no special régime governing
limitations taking place in an enclosed sea simply because of this

                                                                        61

 ture. Ukraine therefore considers that the enclosed character of the
ack Sea “is not by itself a circumstance which ought to be regarded as
 evant for delimitation purposes” and has no bearing on the method of
limitation to be applied in the present proceedings.
173. Ukraine further notes that in general terms, bilateral agreements
nnot affect the rights of third parties and, as such, the existing mari-
me delimitation agreements in the Black Sea cannot influence the present
 pute.

Ukraine states that only in a limited sense can the presence of third
ates in the vicinity of the area to be delimited be considered a relevant
 cumstance. However, this has nothing to do with the choice of the
tual method of delimitation or the character of a sea (whether or not it
enclosed). According to Ukraine, the presence of third States may be
 evant only to the extent that the Court may have to take precautions in
entifying a precise endpoint of the delimitation line so as to avoid
 tential prejudice to States situated on the periphery of the delimitation
ea.

                                 * *
174. The Court recalls that it has intimated earlier, when it briefly
scribed the delimitation methodology, that it would establish a provi-
 nal equidistance line (see paragraph 116 above). This choice was not
ctated by the fact that in all the delimitation agreements concerning the
ack Sea this method was used.
175. Two delimitation agreements concerning the Black Sea were
ought to the attention of the Court. The first agreement, the Agree-
ent concerning the Delimitation of the Continental Shelf in the Black
a, was concluded between Turkey and the USSR on 23 June 1978.
 me eight years later, they agreed, through an Exchange of Notes dated
  December 1986 and 6 February 1987, that the continental shelf
 undary agreed in their 1978 Agreement would also constitute the
 undary between their exclusive economic zones. The westernmost seg-
ent of the line, between two points with co-ordinates 43° 20′ 43″ N and
° 00′ 00″ E and co-ordinates 43° 26′ 59″ N and 31° 20′ 48″ E, respec-
 ely, remained undefined and to be settled subsequently at a convenient
me. After the dissolution of the USSR at the end of 1991, the 1978 Agree-
ent and the Agreement reached through the Exchange of Notes
mained in force not only for the Russian Federation, as the State con-
 uing the international legal personality of the former USSR, but also
e successor States of the USSR bordering the Black Sea, Ukraine being
 e of them.
176. The second agreement is the Agreement between Turkey and Bul-
ria on the determination of the boundary in the mouth area of the
 zovska/Mutludere River and delimitation of the maritime areas
tween the two States in the Black Sea, signed on 4 December 1997. The

                                                                       62

awing of the delimitation line of the continental shelf and the exclusive
onomic zone further to the north-east direction, between geographical
 int 43° 19′ 54″ N and 31° 06′ 33″ E and geographical point 43° 26′ 49″ N
 d 31° 20′ 43″ E, was left open for subsequent negotiations at a suitable
me.

 177. The Court will bear in mind the agreed maritime delimitations
tween Turkey and Bulgaria, as well as between Turkey and Ukraine,
hen considering the endpoint of the single maritime boundary it is
ked to draw in the present case (see Section 10 below).

178. The Court nevertheless considers that, in the light of the above-
entioned delimitation agreements and the enclosed nature of the Black
a, no adjustment to the equidistance line as provisionally drawn is
 led for.

 9.3. The Presence of Serpents’ Island in the Area of Delimitation
179. The Parties disagree as to the proper characterization of Serpents’
and and the role this maritime feature should play in the delimitation
 the continental shelf and the Parties’ exclusive economic zones in the
ack Sea.
180. Romania maintains that Serpents’ Island is entitled to no more
an a 12-nautical-mile territorial sea, and that it cannot be used as a
se point in drawing a delimitation line beyond the 12-mile limit. Roma-
a claims that Serpents’ Island is a rock incapable of sustaining human
bitation or economic life of its own, and therefore has no exclusive
onomic zone or continental shelf, as provided for in Article 121, para-
aph 3, of the 1982 UNCLOS. According to Romania, Serpents’ Island
 alifies as a “rock” because : it is a rocky formation in the geomorpho-
gic sense ; it is devoid of natural water sources and virtually devoid of
 l, vegetation and fauna. Romania claims that human survival on the
and is dependent on supplies, especially of water, from elsewhere and
at the natural conditions there do not support the development of eco-
 mic activities. It adds that “[t]he presence of some individuals, . . .
cause they have to perform an official duty such as maintaining a light-
 use, does not amount to sustained ‘human habitation’”.

181. Romania further argues that Serpents’ Island does not form part
 the coastal configuration of the Parties and that its coast cannot there-
re be included among Ukraine’s relevant coasts for purposes of the
limitation.
182. Romania nevertheless admits that in the present case the presence
  Serpents’ Island “with its already agreed belt of 12-nautical-mile
 ritorial sea” might be a relevant circumstance. It asserts that under
 ernational jurisprudence and State practice, small islands, irrespective of
eir legal characterization, have frequently been given very reduced or

                                                                         63

   effect in the delimitation of the continental shelf, exclusive economic
ne or other maritime zones due to the inequitable effect they would
oduce. Thus, contends Romania, in the present case the provisional
uidistance line should be drawn between the relevant mainland coasts
  the Parties, with minor maritime formations only being considered at
 ater stage as possible relevant circumstances. Romania states that Ser-
nts’ Island, given its location, could be considered as a relevant circum-
  nce only in the sector of the delimitation area where the coasts are
 jacent (in other words, the provisional equidistance line would have to
  shifted so as to take into consideration the maritime boundary along
e 12-nautical-mile arc around Serpents’ Island, which “cannot generate
aritime zones beyond 12 nautical miles”). Owing to its remoteness from
e Ukrainian coast of Crimea, Serpents’ Island cannot, according to
omania, play any role in the delimitation in the area where the coasts
e opposite. In short, Romania considers that, although Serpents’ Island
ay qualify as a “special circumstance”, it should not be given any effect
yond 12 nautical miles.

                                    *
183. Ukraine argues that Serpents’ Island has a baseline which gener-
es base points for the construction of the provisional equidistance line.
 us, in Ukraine’s view, the coast of the island constitutes part of
kraine’s relevant coasts for purposes of the delimitation and cannot be
duced to just a relevant circumstance to be considered only at the sec-
 d stage of the delimitation process after the provisional equidistance
 e has been established.
184. According to Ukraine, Serpents’ Island is indisputably an “island”
 der Article 121, paragraph 2, of UNCLOS, rather than a “rock”.
kraine contends that the evidence shows that Serpents’ Island can read-
  sustain human habitation and that it is well established that it can sus-
 n an economic life of its own. In particular, the island has vegetation
 d a sufficient supply of fresh water. Ukraine further asserts that Ser-
nts’ Island “is an island with appropriate buildings and accommoda-
 n for an active population”. Ukraine also argues that paragraph 3 of
 ticle 121 is not relevant to this delimitation because that paragraph is
 t concerned with questions of delimitation but is, rather, an entitle-
ent provision that has no practical application with respect to a mari-
me area that is, in any event, within the 200-mile limit of the exclusive
onomic zone and continental shelf of a mainland coast.

                                  * *
                                                                        64

 185. In determining the maritime boundary line, in default of any
limitation agreement within the meaning of UNCLOS Articles 74 and
 , the Court may, should relevant circumstances so suggest, adjust the
ovisional equidistance line to ensure an equitable result. In this phase,
e Court may be called upon to decide whether this line should be
 justed because of the presence of small islands in its vicinity. As the
  isprudence has indicated, the Court may on occasion decide not to
ke account of very small islands or decide not to give them their full
 tential entitlement to maritime zones, should such an approach have a
  proportionate effect on the delimitation line under consideration (see
  ntinental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
  ports 1985, p. 48, para. 64 ; Maritime Delimitation and Territorial
uestions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judg-
  nt, I.C.J. Reports 2001, p. 104, para. 219 ; Territorial and Maritime
 spute between Nicaragua and Honduras in the Caribbean Sea (Nica-
gua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 751 et seq.,
 ras. 302 et seq.).
 186. The Court recalls that it has already determined that Serpents’
 and cannot serve as a base point for the construction of the provisional
uidistance line between the coasts of the Parties, that it has drawn in
e first stage of this delimitation process, since it does not form part of
e general configuration of the coast (see paragraph 149 above). The
ourt must now, at the second stage of the delimitation, ascertain whether
e presence of Serpents’ Island in the maritime delimitation area consti-
  es a relevant circumstance calling for an adjustment of the provisional
uidistance line.
 187. With respect to the geography of the north-western part of the
ack Sea, the Court has taken due regard of the fact that Ukraine’s
 ast lies on the west, north and east of this area. The Court notes that
   of the areas subject to delimitation in this case are located in the
clusive economic zone and the continental shelf generated by the
ainland coasts of the Parties and are moreover within 200 nautical
 les of Ukraine’s mainland coast. The Court observes that Serpents’
 and is situated approximately 20 nautical miles to the east of Ukraine’s
ainland coast in the area of the Danube delta (see paragraph 16
 ove). Given this geographical configuration and in the context of the
 limitation with Romania, any continental shelf and exclusive eco-
 mic zone entitlements possibly generated by Serpents’ Island could
 t project further than the entitlements generated by Ukraine’s main-
nd coast because of the southern limit of the delimitation area as
entified by the Court (see paragraph 114 and sketch-map No. 5, p. 102).
  rther, any possible entitlements generated by Serpents’ Island in an east-
  rd direction are fully subsumed by the entitlements generated by the
  stern and eastern mainland coasts of Ukraine itself. The Court also
 tes that Ukraine itself, even though it considered Serpents’ Island to
 l under Article 121, paragraph 2, of UNCLOS, did not extend the rele-
 nt area beyond the limit generated by its mainland coast, as a conse-

                                                                         65

 ence of the presence of Serpents’ Island in the area of delimitation (see
etch-map No. 3, p. 92).
In the light of these factors, the Court concludes that the presence of
rpents’ Island does not call for an adjustment of the provisional equi-
 tance line.
In view of the above, the Court does not need to consider whether Ser-
nts’ Island falls under paragraphs 2 or 3 of Article 121 of UNCLOS
 r their relevance to this case.
188. The Court further recalls that a 12-nautical-mile territorial sea
 s attributed to Serpents’ Island pursuant to agreements between the
 rties. It concludes that, in the context of the present case, Serpents’
and should have no effect on the delimitation in this case, other than
at stemming from the role of the 12-nautical-mile arc of its territorial
a.

     9.4. The Conduct of the Parties (Oil and Gas Concessions,
               Fishing Activities and Naval Patrols)
 189. Ukraine suggests that State activities in the relevant area “consti-
  e a relevant circumstance which operates in favour of the continental
elf/EEZ claim line proposed by Ukraine”. Ukraine explains that it does
 t point to this conduct of the Parties in order to show the existence of
 ine arising from a tacit agreement or a modus vivendi. Instead, Ukraine
eks to assess the claims of the Parties in relation to their actual conduct.
  cording to Ukraine, it is significant that Romania’s activities, or lack
 them, are “fundamentally inconsistent” with Romania’s argument that
ere was a pre-existing maritime delimitation in the disputed area extend-
g out to “Point X”. Furthermore, Ukraine contends that the lack of
 y comparable operations by Romania in the disputed area is incom-
 tible with the position taken by Romania in the proceedings before the
ourt.

190. Ukraine argues that in 1993, 2001 and 2003 it licensed activities
 ating to the exploration of oil and gas deposits within the continental
elf/exclusive economic zone area claimed by Ukraine in the current
se. It asserts that the existence of these licences demonstrates that
kraine, both before and after the 1997 Additional Agreement, author-
 d activities relating to the exploration of oil and gas deposits in areas
 the continental shelf to which Romania lays claim in these proceed-
gs. It adds that prior to 2001, Romania never protested Ukraine’s oil
d gas activities in areas now claimed by Romania.

Ukraine concludes on this point that its oil-related activities are con-
tent with its delimitation line and should be taken into account together
th the other relevant circumstances, in particular the physical geo-
aphy, in order to achieve an equitable solution.

                                                                         66

 191. Ukraine further argues that the exclusive economic zone and con-
 ental shelf boundary it claims furthermore corresponds generally to
e limit of the Parties exclusive fishing zones “as respected by both
omania and Ukraine in their administration of fishing in the north-west
 rt of the Black Sea”. Ukraine emphasizes that it was Ukraine and not
omania that has been active in policing that part of the area. Ukraine
ntends that Romania has neither demonstrated any interest in patrol-
 g the area nor has it objected to the fact that the Ukrainian coastguard
sumed the sole responsibility of intercepting illegal fishing vessels and,
hen possible, escorting them out of Ukraine’s exclusive economic zone
 d taking any other appropriate measures.

192. With regard to the notion of a critical date introduced by Roma-
a, Ukraine states that “even assuming that there was a critical date at
, and that the critical date would have a role to play in maritime
limitation, it is the date of Romania’s Application : 16 September
04”.

                                     *
193. Romania does not consider that State activities in the relevant
ea, namely licences for the exploration and exploitation of oil and gas
 d fishing practices, constitute relevant circumstances. As a matter of
  al principle, effectivités or “State activities” cannot constitute an ele-
ent to be taken into account for the purposes of maritime delimitation.
omania notes that maritime effectivités can only be taken into account
they “reflect a tacit agreement” which might constitute a relevant cir-
mstance for delimitation. In order to come within this “exception” to
e general rule, it notes that only State activities prior to the critical date
ay be relevant and that they must be sufficient to prove that “a tacit
reement or modus vivendi exists”. According to Romania, the effectiv-
 s presented by Ukraine do not reveal the existence of a “de facto line”
  of a “pattern of conduct” proving one way or another an agreement
tween the Parties, or acquiescence by Romania relating in any way to
aritime delimitation. These activities cannot therefore constitute an ele-
ent “undermining Romania’s argument regarding the 1949 Procès-
 rbaux”. Romania concludes that it is evident from all the elements regard-
g the “State activities” in the disputed area that Ukraine has “failed to
monstrate that these State activities comply, in fact or in law, with the
cessary criteria that might transform them into a relevant circumstance
 le to have an impact on [the] delimitation”.

194. Romania further recalls that under the 1997 Additional Agree-
ent the two Parties clearly recognized in writing the existence of a dis-
 te regarding the maritime delimitation, and set the framework for
 ure negotiations to conclude a delimitation agreement. Romania adds

                                                                           67

at the Agreement’s provisions regarding the existence of the dispute
 re a mere confirmation of a factual situation that had already existed
r a long time. Thus any oil-related practice occurring after the conclu-
 n of the 1997 Additional Agreement is, in its view, irrelevant in the
esent proceedings as the dispute had already crystallized by that date.

195. Romania concludes that Ukraine’s oil concessions practice offers
  support to the latter’s claimed delimitation for the following reasons.
rst, the area covered by the Ukrainian concessions “does not even
ughly correspond to its claim in the present proceedings”. Second, two
 the three licences were issued in 2001 and 2003, i.e., after the critical
te of 1997. Moreover, Romania consistently objected to Ukrainian
drocarbon activity.

196. With regard to fishing activities, Romania contests that the prac-
e of the Parties has any bearing on the maritime delimitation in the
esent case since neither Party economically depends on fisheries activi-
s in an area in which pelagic fish stocks are limited ; the practice
voked by Ukraine is recent and only covers a small part of the area in
 pute ; and it has always been challenged by Romania and has never
en recognized by third States. With regard to the naval patrols, Roma-
a submits, even if they could be considered a relevant circumstance,
od non, all the naval incidents reported by Ukraine are subsequent to
e critical date and as such are in any event irrelevant.

                                 * *
197. The Court recalls that it had earlier concluded that there is no
reement in force between the Parties delimiting the continental shelf
d the exclusive economic zones of the Parties (see paragraph 76 above).
It further notes that Ukraine is not relying on State activities in order
 prove a tacit agreement or modus vivendi between the Parties on the
e which would separate their respective exclusive economic zones and
ntinental shelves. It rather refers to State activities in order to under-
ne the line claimed by Romania.

198. The Court does not see, in the circumstances of the present case,
y particular role for the State activities invoked above in this maritime
limitation. As the Arbitral Tribunal in the case between Barbados and
inidad and Tobago observed,
  “[r]esource-related criteria have been treated more cautiously by the
  decisions of international courts and tribunals, which have not gen-
  erally applied this factor as a relevant circumstance” (Award of
  11 April 2006, RIAA, Vol. XXVII, p. 214, para. 241).

                                                                       68

ith respect to fisheries, the Court adds that no evidence has been sub-
tted to it by Ukraine that any delimitation line other than that claimed
 it would be “likely to entail catastrophic repercussions for the liveli-
od and economic well-being of the population” (Delimitation of the
aritime Boundary in the Gulf of Maine Area (Canada/United States of
merica), Judgment, I.C.J. Reports 1984, p. 342, para. 237).

Since the Court does not consider that the above-mentioned State
tivities constitute a relevant circumstance in the present case, the issue
 critical date discussed by the Parties does not require a response from
e Court.

                     9.5. Any Cutting Off Effect
199. Romania contends that its proposed maritime boundary does
 t cut off the entitlements to the continental shelf and to the exclu-
  e economic zone of either Romania or Ukraine. The area attributed
   each Party does not encroach on the natural prolongation of the
her.
Romania argues that Ukraine’s delimitation line leads to a cut-off of
omania’s maritime entitlements, in particular in the northern sector of
   coast between the Sulina dyke and the Sacalin Peninsula. Romania
  tes that the delimitation line advocated by Ukraine would make it
tremely difficult for Romania to gain access to the port of Sulina and
e maritime branch of the Danube, which is an important route for the
  nsit of merchandise. In short, according to Romania, Ukraine’s
  imed line results in a dramatic curtailment of the maritime areas off
e Romanian coast, “as if the projection of every stretch of Ukraine’s
ast run unobstructed in every direction while there is no opposing or
 jacent Romanian territory”.

                                   *
 200. According to Ukraine, Romania’s line results in a two-fold cut-
   of Ukraine’s maritime entitlements. First, the maritime entitlements
  Serpents’ Island are dramatically truncated by allocating no continen-
   shelf and no exclusive economic zone to it. Second, Ukraine’s
 uth-facing mainland coast is deprived of the area to which it is legally
 titled : “[T]he end result is clearly inequitable and represents a funda-
ental encroachment on continental shelf and exclusive economic areas
at should appertain to Ukraine . . ..” Thus, Ukraine argues that
Romania’s versions of equidistance produces a marked cut-off effect of
e projection of Ukraine’s coastal front north of the land boundary”.
 oreover Ukraine asserts that

   “not only does Romania’s line encroach upon the extension or
   projection of Ukraine’s south-east-facing coast — the coast just

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   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 non-
croachment. It reflects the geographical fact that “Ukraine’s coast
onting the area to be delimited projects in essentially three directions
hile Romania’s coast projects basically in a single direction — south-
stwards”.

                                 * *
201. The Court observes that the delimitation lines proposed by the
 rties, in particular their first segments, each significantly curtail the
titlement of the other Party to the continental shelf and the exclusive
onomic zone. The Romanian line obstructs the entitlement of Ukraine
nerated by its coast adjacent to that of Romania, the entitlement
rther strengthened by the northern coast of Ukraine. At the same time,
e Ukrainian line restricts the entitlement of Romania generated by its
ast, in particular its first sector between the Sulina dyke and the Sacalin
ninsula.
By contrast, the provisional equidistance line drawn by the Court
oids such a drawback as it allows the adjacent coasts of the Parties to
oduce their effects, in terms of maritime entitlements, in a reasonable
d mutually balanced way. That being so, the Court sees no reason to
just the provisional equidistance line on this ground.

          9.6. The Security Considerations of the Parties
 202. Romania asserts that there is no evidence to suggest that the
 limitation advanced by it would adversely affect Ukraine’s security
  erests, including Serpents’ Island, which has a belt of maritime space
  12 nautical miles.
 In Romania’s view, Ukraine’s delimitation line runs unreasonably
ose to the Romanian coast and thus encroaches on the security interests
  Romania.

                                   *
203. Ukraine claims that its line in no way compromises any Roma-
an security interests because Ukraine’s delimitation line accords to
omania areas of continental shelf and exclusive economic zone off its
astline. In this regard Ukraine refers to “the predominant interest
kraine has for security and other matters as a function of its geographi-
  position along this part of the Black Sea on three sides of the coast”
 d maintains that Ukraine has been the only Party to police the area
 d to prevent illegal fishing and other activities in that area. According

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Ukraine, its claim is consistent with this aspect of the conduct of the
rties, whereas Romania’s claim is not.

                                  * *
204. The Court confines itself to two observations. First, the legitimate
curity considerations of the Parties may play a role in determining the
 al delimitation line (see Continental Shelf (Libyan Arab Jamahiriya/
alta), Judgment, I.C.J. Reports 1985, p. 42, para. 51). Second, in the
esent case however, the provisional equidistance line it has drawn sub-
  ntially differs from the lines drawn either by Romania or Ukraine. The
ovisional equidistance line determined by the Court fully respects the
  itimate security interests of either Party. Therefore, there is no need to
 just the line on the basis of this consideration.

                    10. THE LINE OF DELIMITATION

205. The Court takes note of the fact that Article 1 of the 2003 State
 rder Régime Treaty situates the meeting point of the territorial seas of
e Parties at 45° 05′ 21″ N and 30° 02′ 27″ E. This suffices for the fixing
 the starting-point.
Romania and Ukraine have both indicated, in considerable detail, the
urse that their respective delimitation lines would then follow beyond
e point fixed by Article 1 of the 2003 State Border Régime Treaty (see
 ragraph 13 above and sketch-map No. 1, p. 69). The Court notes that
e Parties’ positions differ in this regard.
206. The delimitation line decided by the Court, for which neither the
award end of the Sulina dyke nor Serpents’ Island is taken as a base
 int, begins at Point 1 and follows the 12-nautical-mile arc around Ser-
nts’ Island until it intersects with the line equidistant from Romania’s
 d Ukraine’s adjacent coasts, as defined above ; from there, it follows
at line until it becomes affected by base points on the opposite coasts of
omania and Ukraine. From this turning point the delimitation line runs
ong the line equidistant from Romania’s and Ukraine’s opposite coasts
 r the course of the equidistance line see paragraph 154 above).

207. Romania maintains that the endpoint of the delimitation line is
uated at co-ordinates 43° 26′ 50″ N and 31° 20′ 10″ E (Point Z). It
serts that drawing the delimitation line up to Point Z does not affect
y possible entitlements of third countries to maritime areas, as Point Z
 “practically the point equidistant to the Romanian, Ukrainian and
 rkish coasts, and is farther to the Bulgarian coast”.
208. Ukraine argues that no endpoint of the delimitation should be

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ecified, so as to avoid any encroachment on possible entitlements of
rd States ; the line would therefore end in an arrow. The line advocated
 Ukraine continues from the point identified by it as Point 3 along the
 muth 156 until it reaches the point where the interests of third States
tentially come into play.
209. The Court considers that the delimitation line follows the equi-
 tance line in a southerly direction until the point beyond which the
erests of third States may be affected.

                  11. THE DISPROPORTIONALITY TEST

 210. The Court now turns to check that the result thus far arrived at,
  far as the envisaged delimitation line is concerned, does not lead to
 y significant disproportionality by reference to the respective coastal
ngths and the apportionment of areas that ensue. This Court agrees
 th the observation that
   “it is disproportion rather than any general principle of proportion-
   ality 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).

 211. The continental shelf and exclusive economic zone allocations are
 t to be assigned in proportion to length of respective coastlines. Rather,
e Court will check, ex post facto, on the equitableness of the delimita-
 n line it has constructed (Delimitation of the maritime boundary
tween Guinea and Guinea-Bissau, RIAA, Vol. XIX, pp. 183-184,
 ras. 94-95).
 212. This checking can only be approximate. Diverse techniques have
 the past been used for assessing coastal lengths, with no clear require-
ents of international law having been shown as to whether the real
astline should be followed, or baselines used, or whether or not coasts
 ating to internal waters should be excluded.
 213. The Court cannot but observe that various tribunals, and the
ourt itself, have drawn different conclusions over the years as to what
 parity in coastal lengths would constitute a significant disproportion-
 ty which suggested the delimitation line was inequitable and still
quired adjustment. This remains in each case a matter for the Court’s
 preciation, which it will exercise by reference to the overall geography
  the area.
 214. In the present case the Court has measured the coasts according
  their general direction. It has not used baselines suggested by the
 rties for this measurement. Coastlines alongside waters lying behind

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 lfs or deep inlets have not been included for this purpose. These meas-
 ements are necessarily approximate given that the purpose of this final
  ge is to make sure there is no significant disproportionality.

 215. It suffices for this third stage for the Court to note that the ratio
  the respective coastal lengths for Romania and Ukraine, measured as
 scribed above, is approximately 1:2.8 and the ratio of the relevant area
 tween Romania and Ukraine is approximately 1:2.1.

 216. The Court is not of the view that this suggests that the line as
 nstructed, and checked carefully for any relevant circumstances that
 ght have warranted adjustment, requires any alteration.

 12. THE MARITIME BOUNDARY DELIMITING THE CONTINENTAL SHELF
                AND EXCLUSIVE ECONOMIC ZONES

 217. The Court observes that a maritime boundary delimiting the con-
  ental shelf and exclusive economic zones is not to be assimilated to a
 ate boundary separating territories of States. The former defines the
mits of maritime zones where under international law coastal States
 ve certain sovereign rights for defined purposes. The latter defines the
  ritorial limits of State sovereignty. Consequently, the Court considers
 at no confusion as to the nature of the maritime boundary delimiting
 e exclusive economic zone and the continental shelf arises and will thus
mploy this term.
 218. The line of the maritime boundary established by the Court
 gins at Point 1, the point of intersection of the outer limit of the terri-
 rial sea of Romania with the territorial sea of Ukraine around Ser-
 nts’ Island as stipulated in Article 1 of the 2003 State Border Régime
 eaty (see paragraph 28 above). From Point 1 it follows the arc of the
 -nautical-mile territorial sea of Serpents’ Island until the arc intersects
  Point 2, with co-ordinates 45° 03′ 18.5″ N and 30° 09′ 24.6″ E, with a
  e equidistant from the adjacent coasts of Romania and Ukraine, plot-
d by reference to base points located on the landward end of the Sulina
 ke and the south-eastern tip of Tsyganka Island. The maritime bound-
 y from Point 2 continues along the equidistance line 5 in a south-
 sterly direction until Point 3, with co-ordinates 44° 46′ 38.7″ N and
 ° 58′ 37.3″ E (Point A of the provisional equidistance line), where the
 uidistance line becomes affected by a base point located on the Sacalin
 ninsula.

  For the description of the entire course of the equidistance line, see paragraph 154
 ove.

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From Point 3 the maritime boundary follows the equidistance line in a
uth-easterly direction to Point 4, with co-ordinates 44° 44′ 13.4″ N and
° 10′ 27.7″ E (Point B of the provisional equidistance line), where the
uidistance line becomes affected by the base point located on Cape
 rkhankut on Ukraine’s opposite coast and turns south-south-east.
om Point 4 the boundary traces the line equidistant from the opposite
asts of Romania and Ukraine until Point 5, with co-ordinates
° 02′ 53.0″ N and 31° 24′ 35.0″ E) (Point C of the provisional equidis-
nce line), which is controlled by base points on the Sacalin Peninsula
  the Romanian coast and Capes Tarkhankut and Khersones on the
krainian coast, from where it continues along the equidistance line in a
utherly direction starting at a geodetic azimuth of 185° 23′ 54.5″ until
e maritime boundary reaches the area where the rights of third States
ay be affected (see sketch-maps Nos. 8 and 9, pp. 132-133).

The geographical co-ordinates for Points 2, 3, 4 and 5 of the single
aritime boundary set out in this paragraph and in the operative clause
 e paragraph 219) are given by reference to WGS 84 datum.

                                 * * *

                        13. OPERATIVE CLAUSE

219. For these reasons,
THE COURT,
Unanimously,
Decides that starting from Point 1, as agreed by the Parties in Article 1
 the 2003 State Border Régime Treaty, the line of the single maritime
 undary delimiting the continental shelf and the exclusive economic
nes of Romania and Ukraine in the Black Sea shall follow the 12-
utical-mile arc of the territorial sea of Ukraine around Serpents’ Island
 til Point 2 (with co-ordinates 45° 03′ 18.5″ N and 30° 09′ 24.6″ E) where
e arc intersects with the line equidistant from Romania’s and Ukraine’s
jacent coasts. From Point 2 the boundary line shall follow the equidis-
nce line through Points 3 (with co-ordinates 44° 46′ 38.7″ N and
° 58′ 37.3″ E) and 4 (with co-ordinates 44° 44′ 13.4″ N and
° 10′ 27.7″ E) until it reaches Point 5 (with co-ordinates 44° 02′ 53.0″ N
d 31° 24′ 35.0″ E). From Point 5 the maritime boundary line shall con-
 ue along the line equidistant from the opposite coasts of Romania and
kraine in a southerly direction starting at a geodetic azimuth of
5° 23′ 54.5″ until it reaches the area where the rights of third States may
  affected.

                                                                        74

75

76

Done in French and in English, the French text being authoritative, at
e Peace Palace, The Hague, this third day of February, two thousand
d nine, in three copies, one of which will be placed in the archives of
e Court and the others transmitted to the Government of Romania and
e Government of Ukraine, respectively.

                                        (Signed) Rosalyn HIGGINS,
                                                    President.
                                       (Signed) Philippe COUVREUR,
                                                     Registrar.

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