232
the status of the waters within the Bay; delineating the maritime boundary in those
waters; and establishing (or rather, in fact, briefly discussing) a regime for the use of
the Bay. Next, it turned first to the delimitation of the maritime boundary outside the
Bay, that is, in the territorial seas of the two States, and then to what is perhaps the
most innovative aspect of the Award: the determination of Slovenia’s junction to the
high seas. Finally, after reviewing—and rejecting—Slovenia’s claim to a continental shelf extending into and beyond the “junction” area, the Tribunal established a
usage regime applicable to the maritime areas so delimited.
I will now examine the Arbitral Tribunal’s rulings on the maritime issues submitted to it, starting from the determinations concerning the Bay of Piran.
3 Determinations in Respect of the Bay of Piran
Since this large section of the Award is mainly devoted to reviewing the Parties’
positions, it seems appropriate, before discussing the ruling of the Tribunal, to
briefly consider the complex arguments put forward by the Parties.
Throughout the arbitration proceedings, Croatia and Slovenia continued to disagree about the legal status of the Bay of Piran, as well as the delimitation of the
waters within it and, in particular, the law applicable to that delimitation. With
regard to the first issue, the positions of the two States diverged on the status of the
Bay both prior to and following the dissolution of the SFRY.
28
According to the Arbitral Tribunal, at the time of the Yugoslav Federation the
Bay certainly fulfilled the criteria set out in Article 7 of the 1958 Geneva Convention
on the Territorial Sea and the Contiguous Zone (TSC) and the identical Article 10
UNCLOS.
29
This view was however contested by Croatia. While conceding that
“Yugoslavia could have drawn a closing line [across the mouth of the Bay], if it had
wished to and the requirements of international law were met”, Croatia denied that
Yugoslavia ever drew the closing line and, therefore, that juridical bay status arose
“by automatic operation of law”.
30
This argument, which clearly revolves around
the due publicity obligation under Article 16 UNCLOS, was nevertheless rejected
by the Arbitral Tribunal.
31
28 According to Slovenia, the Bay of Piran certainly enjoyed the status of a juridical bay at the time
of the SFRY pursuant to Art. 7 of the Geneva Convention on the Territorial Sea and the Contiguous
Zone, 29 April 1958, 516 UNTS 205 (‘TSC’), as well as Yugoslav domestic legislation. The provisions of Art. 7 TSC were later transposed, with minor changes, in Art. 10 UNCLOS. As regards
Yugoslav legislation, The Law on the Coastal Sea of 23 April 1965, and the subsequent Act concerning the Coastal Sea and the Continental Shelf of 23 July 1987 (‘Act of 1987’, available at:
http://www.un.org/depts/los/), incorporated in Article 3(2) and (3) the geographical and mathematical criteria under Arts. 7 TSC and 10 UNCLOS. In fact, as noted by the Tribunal, the Bay already
fulfilled the criteria set by the Coastal Sea Act of 1948, see Croatia/Slovenia, para. 873.
29 Ibidem, para. 872.
30 Ibidem, paras 784–785.
31 Ibidem, para. 875–880.
A. Insolia
the status of the waters within the Bay; delineating the maritime boundary in those
waters; and establishing (or rather, in fact, briefly discussing) a regime for the use of
the Bay. Next, it turned first to the delimitation of the maritime boundary outside the
Bay, that is, in the territorial seas of the two States, and then to what is perhaps the
most innovative aspect of the Award: the determination of Slovenia’s junction to the
high seas. Finally, after reviewing—and rejecting—Slovenia’s claim to a continental shelf extending into and beyond the “junction” area, the Tribunal established a
usage regime applicable to the maritime areas so delimited.
I will now examine the Arbitral Tribunal’s rulings on the maritime issues submitted to it, starting from the determinations concerning the Bay of Piran.
3 Determinations in Respect of the Bay of Piran
Since this large section of the Award is mainly devoted to reviewing the Parties’
positions, it seems appropriate, before discussing the ruling of the Tribunal, to
briefly consider the complex arguments put forward by the Parties.
Throughout the arbitration proceedings, Croatia and Slovenia continued to disagree about the legal status of the Bay of Piran, as well as the delimitation of the
waters within it and, in particular, the law applicable to that delimitation. With
regard to the first issue, the positions of the two States diverged on the status of the
Bay both prior to and following the dissolution of the SFRY.
28
According to the Arbitral Tribunal, at the time of the Yugoslav Federation the
Bay certainly fulfilled the criteria set out in Article 7 of the 1958 Geneva Convention
on the Territorial Sea and the Contiguous Zone (TSC) and the identical Article 10
UNCLOS.
29
This view was however contested by Croatia. While conceding that
“Yugoslavia could have drawn a closing line [across the mouth of the Bay], if it had
wished to and the requirements of international law were met”, Croatia denied that
Yugoslavia ever drew the closing line and, therefore, that juridical bay status arose
“by automatic operation of law”.
30
This argument, which clearly revolves around
the due publicity obligation under Article 16 UNCLOS, was nevertheless rejected
by the Arbitral Tribunal.
31
28 According to Slovenia, the Bay of Piran certainly enjoyed the status of a juridical bay at the time
of the SFRY pursuant to Art. 7 of the Geneva Convention on the Territorial Sea and the Contiguous
Zone, 29 April 1958, 516 UNTS 205 (‘TSC’), as well as Yugoslav domestic legislation. The provisions of Art. 7 TSC were later transposed, with minor changes, in Art. 10 UNCLOS. As regards
Yugoslav legislation, The Law on the Coastal Sea of 23 April 1965, and the subsequent Act concerning the Coastal Sea and the Continental Shelf of 23 July 1987 (‘Act of 1987’, available at:
http://www.un.org/depts/los/), incorporated in Article 3(2) and (3) the geographical and mathematical criteria under Arts. 7 TSC and 10 UNCLOS. In fact, as noted by the Tribunal, the Bay already
fulfilled the criteria set by the Coastal Sea Act of 1948, see Croatia/Slovenia, para. 873.
29 Ibidem, para. 872.
30 Ibidem, paras 784–785.
31 Ibidem, para. 875–880.
A. Insolia