230
ered by the 1968 Agreement.
24
Second, in the same year (2003), Croatia established
a zone of exclusive jurisdiction, the Ecological and Fisheries Protection Zone,
which was immediately protested by Slovenia. Third, each State reiterated its
position—Slovenia in 2004 and Croatia in 2005—in a note verbale addressed to the
Secretary-General of the United Nations. Fourth, in October 2005 Slovenia adopted
a provisional act concerning the establishment of an ecological protection zone and
its rights in the continental shelf (Ecological Protection Zone and Continental Shelf
of the Republic of Slovenia Act). Two of the zones identified in this Act—“zone A”
(a fisheries control zone encompassing all waters of Piran Bay) and “zone C” (an
ecological protection zone encompassing international and Croatian waters)—partially overlapped with sea areas over which Croatia claimed exclusive jurisdiction.
25
Finally, from its accession to the European Union in 2004 until the conclusion of the
Arbitration Agreement in 2009, Slovenia opposed Croatia’s membership talks with
the EU.
Bilateral negotiations resumed in 2007, following the Bled Agreement, which
provided for the submission of the dispute for arbitration to the International Court
of Justice (‘ICJ’ or ‘the Court’). Despite efforts to conclude a special agreement to
that effect, however, the negotiations slowed down in 2008, when Slovenia expressed
reservations about eleven negotiating chapters in Croatia’s EU membership talks.
26
In January 2009, the European Commission assumed a mediating role between the
Parties, starting the process that led to the conclusion of the 2009 Arbitration
Agreement.
2.1 Brief Remarks on the Tribunal’s Task and the Applicable
Law
With the above overview in mind, it seems useful to look at the task entrusted to the
Arbitral Tribunal, as well as the law it was to apply in resolving the issues before it.
Under Article 3(1) of the 2009 Arbitration Agreement, the Tribunal had to determine the following:
(a) the course of the maritime and land boundary between the Republic of Slovenia and the
Republic of Croatia; (b) Slovenia’s junction to the High Sea; (c) the regime for the use of
the relevant maritime areas.
With regard to the applicable law, Article 4 of the Agreement provided that the
above had to be determined in accordance with two distinct sets of rules and principles, namely:
24 See Art. 4(5) of the Agreement. The fact that the Agreement failed to be ratified and was finally
abandoned in 2002 supports this reading. Pustorino (2005), p. 16, fn. 20, argues that there was a
connection between Slovenia’s 2003 declaration and its dispute with Croatia.
25 For further analysis, see Gestri (2005) and Orzan (2005).
26 See Bickl (2017), p. 16 ff.
A. Insolia
ered by the 1968 Agreement.
24
Second, in the same year (2003), Croatia established
a zone of exclusive jurisdiction, the Ecological and Fisheries Protection Zone,
which was immediately protested by Slovenia. Third, each State reiterated its
position—Slovenia in 2004 and Croatia in 2005—in a note verbale addressed to the
Secretary-General of the United Nations. Fourth, in October 2005 Slovenia adopted
a provisional act concerning the establishment of an ecological protection zone and
its rights in the continental shelf (Ecological Protection Zone and Continental Shelf
of the Republic of Slovenia Act). Two of the zones identified in this Act—“zone A”
(a fisheries control zone encompassing all waters of Piran Bay) and “zone C” (an
ecological protection zone encompassing international and Croatian waters)—partially overlapped with sea areas over which Croatia claimed exclusive jurisdiction.
25
Finally, from its accession to the European Union in 2004 until the conclusion of the
Arbitration Agreement in 2009, Slovenia opposed Croatia’s membership talks with
the EU.
Bilateral negotiations resumed in 2007, following the Bled Agreement, which
provided for the submission of the dispute for arbitration to the International Court
of Justice (‘ICJ’ or ‘the Court’). Despite efforts to conclude a special agreement to
that effect, however, the negotiations slowed down in 2008, when Slovenia expressed
reservations about eleven negotiating chapters in Croatia’s EU membership talks.
26
In January 2009, the European Commission assumed a mediating role between the
Parties, starting the process that led to the conclusion of the 2009 Arbitration
Agreement.
2.1 Brief Remarks on the Tribunal’s Task and the Applicable
Law
With the above overview in mind, it seems useful to look at the task entrusted to the
Arbitral Tribunal, as well as the law it was to apply in resolving the issues before it.
Under Article 3(1) of the 2009 Arbitration Agreement, the Tribunal had to determine the following:
(a) the course of the maritime and land boundary between the Republic of Slovenia and the
Republic of Croatia; (b) Slovenia’s junction to the High Sea; (c) the regime for the use of
the relevant maritime areas.
With regard to the applicable law, Article 4 of the Agreement provided that the
above had to be determined in accordance with two distinct sets of rules and principles, namely:
24 See Art. 4(5) of the Agreement. The fact that the Agreement failed to be ratified and was finally
abandoned in 2002 supports this reading. Pustorino (2005), p. 16, fn. 20, argues that there was a
connection between Slovenia’s 2003 declaration and its dispute with Croatia.
25 For further analysis, see Gestri (2005) and Orzan (2005).
26 See Bickl (2017), p. 16 ff.
A. Insolia