233
As mentioned above, the Parties disagreed also, and especially, about the effect
of the dissolution of the SFRY on the status of the Bay. In this regard, Slovenia
made the following three arguments: “there was no change in the Bay’s status as
internal waters”, since “the Bay continued to meet the requirements of a juridical
bay”; alternatively, the Bay’s status as a juridical bay continued “by operation of the
law of succession”; and, in a further alternative, the Bay was an “historic bay”.
32
Each argument, it must be noted, had the same aim: to affirm Slovenia’s sovereignty
over the entire Bay. In the absence of customary rules on the delimitation of internal
waters between States with opposite or adjacent coasts, Slovenia contended that the
applicable law with respect to the delimitation of the Bay was the law applicable to
the delimitation of the land boundary, in particular the principle of uti possidetis.
Slovenia also contended that it was entitled to claim sovereignty over the whole Bay
based on its effectivités.
33
According to Croatia, however, even assuming that the
Bay was ever a Slovenian juridical bay, that status did not survive the dissolution of
the Yugoslav Federation. More specifically, Croatia contended that the Bay was now
to be regarded as territorial sea of both States.
34
Therefore, considering that no historic title or other special circumstances existed, it submitted that the Bay had to be
delimited on the basis of the equidistance principle under Article 15 UNCLOS.
35
The Arbitral Tribunal’s own reasoning on the issue of the effect of the dissolution
of the SFRY is relatively brief.
36
In essence, the Tribunal confines itself to making
reference to the only precedent on the matter, that is, the 1992 judgment of a
Chamber of the ICJ in the Land, Island and Maritime Frontier Dispute (El-Salvador/
Honduras) or the Gulf of Fonseca case. In particular, it refers to the passage where
the ICJ stated that the “rights in the Gulf of Fonseca of the present coastal States”
(i.e., El Salvador, Honduras and Nicaragua) were “thus acquired, like their land territories, by succession from Spain”.
37
After quoting the passage, the Tribunal makes
the following observations:
Similarly, in the present case, the Bay was internal waters before the dissolution of the
SFRY in 1991, and it remained so after that date. The dissolution, and the ensuing legal
transfer of the rights of Yugoslavia to Croatia and Slovenia as successor States, did not have
the effect of altering the acquired status.
38
32 Ibidem, para. 789.
33 Croatia objected that “the principle of uti possidetis does not appear to assist Slovenia’s case as
there is no relevant administrative boundary to transform into an international frontier” (ibidem,
para. 838). Nonetheless, both Parties advanced arguments concerning their effectivités in the Bay,
in the event that it became necessary to apply uti possidetis (ibidem, paras 841–860).
34 Ibidem, paras 790 and 824.
35 Ibidem, para. 840.
36 Ibidem, paras 881–885.
37 Ibidem, para. 882, quoting from ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras: Nicaragua Intervening), Judgment of 11 September 1992, para. 385.
38 Croatia/Slovenia, para. 883. See also paras 884–885, where the Tribunal makes clear its interpretation of Arts. 7 TSC and 10 UNCLOS.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
As mentioned above, the Parties disagreed also, and especially, about the effect
of the dissolution of the SFRY on the status of the Bay. In this regard, Slovenia
made the following three arguments: “there was no change in the Bay’s status as
internal waters”, since “the Bay continued to meet the requirements of a juridical
bay”; alternatively, the Bay’s status as a juridical bay continued “by operation of the
law of succession”; and, in a further alternative, the Bay was an “historic bay”.
32
Each argument, it must be noted, had the same aim: to affirm Slovenia’s sovereignty
over the entire Bay. In the absence of customary rules on the delimitation of internal
waters between States with opposite or adjacent coasts, Slovenia contended that the
applicable law with respect to the delimitation of the Bay was the law applicable to
the delimitation of the land boundary, in particular the principle of uti possidetis.
Slovenia also contended that it was entitled to claim sovereignty over the whole Bay
based on its effectivités.
33
According to Croatia, however, even assuming that the
Bay was ever a Slovenian juridical bay, that status did not survive the dissolution of
the Yugoslav Federation. More specifically, Croatia contended that the Bay was now
to be regarded as territorial sea of both States.
34
Therefore, considering that no historic title or other special circumstances existed, it submitted that the Bay had to be
delimited on the basis of the equidistance principle under Article 15 UNCLOS.
35
The Arbitral Tribunal’s own reasoning on the issue of the effect of the dissolution
of the SFRY is relatively brief.
36
In essence, the Tribunal confines itself to making
reference to the only precedent on the matter, that is, the 1992 judgment of a
Chamber of the ICJ in the Land, Island and Maritime Frontier Dispute (El-Salvador/
Honduras) or the Gulf of Fonseca case. In particular, it refers to the passage where
the ICJ stated that the “rights in the Gulf of Fonseca of the present coastal States”
(i.e., El Salvador, Honduras and Nicaragua) were “thus acquired, like their land territories, by succession from Spain”.
37
After quoting the passage, the Tribunal makes
the following observations:
Similarly, in the present case, the Bay was internal waters before the dissolution of the
SFRY in 1991, and it remained so after that date. The dissolution, and the ensuing legal
transfer of the rights of Yugoslavia to Croatia and Slovenia as successor States, did not have
the effect of altering the acquired status.
38
32 Ibidem, para. 789.
33 Croatia objected that “the principle of uti possidetis does not appear to assist Slovenia’s case as
there is no relevant administrative boundary to transform into an international frontier” (ibidem,
para. 838). Nonetheless, both Parties advanced arguments concerning their effectivités in the Bay,
in the event that it became necessary to apply uti possidetis (ibidem, paras 841–860).
34 Ibidem, paras 790 and 824.
35 Ibidem, para. 840.
36 Ibidem, paras 881–885.
37 Ibidem, para. 882, quoting from ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras: Nicaragua Intervening), Judgment of 11 September 1992, para. 385.
38 Croatia/Slovenia, para. 883. See also paras 884–885, where the Tribunal makes clear its interpretation of Arts. 7 TSC and 10 UNCLOS.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award