234
Having thus concluded that the Bay has the status of internal waters, the Tribunal
turns to the delimitation of those waters. Noting that UNCLOS contains no provision on the delimitation of internal waters, the Tribunal considers that such delimitation is to be made on the basis of the same principles applicable to the delimitation
of land territories, meaning, in this case, the principle of uti possidetis. The Tribunal
then observes that “the Parties agree that there had been no formal division of the
Bay between the two Republics prior to the dissolution of Yugoslavia and that they
inherited no legal title from that time” and “that no condominium had ever been
established in the Bay”. Therefore, the Tribunal concludes, the delimitation has to
be made “on the basis of the effectivités at the date of independence”.
39
Next, in
order to clarify the respective role of legal titles and effectivités in the application of
uti possidetis, the Tribunal recalls the famous dictum in the ICJ’s 1986 judgment in
Burkina Faso/Mali
40
—a judgment often referred to by the Court, especially in the
Indonesia/Malaysia case (to which the Arbitral Tribunal also refers), where it singled out the third “eventuality” mentioned in the dictum, indicating that “[i]n the
event that the effectivité does not correspond to any legal title, it must invariably be
taken into consideration”.
41
Finally, before examining the effectivités claimed by each Party with respect to
the Bay, the Arbitral Tribunal recalls that, as stated by the Permanent Court of
International Justice (‘PCIJ’), “a claim to sovereignty based not upon some particular act or title… but merely upon display of authority involves two elements… the
intention and will to act as sovereign and some actual exercise or display of such
authority”. In this regard, the Tribunal further recalls that:
in many cases, tribunals have been satisfied with very little in the way of the actual exercise
of sovereignty, for instance in the case of very small islands which were uninhabited or not
permanently inhabited. The situation is comparable in respect of the internal waters of the
Bay, over which the Parties had exercised limited activity before their independence.
42
As for the effectivités claimed by the two States, the Tribunal focuses especially
on those relating to regulation of fisheries and police patrol. With reference to the
former, the authorities of both Federate Republics adopted, each requesting the
prior agreement of the other, various decisions and regulations on the establishment
of fishing reserves which, taken all together, covered the entire Bay.
43
However, as
noted by the Tribunal, the text of those decisions and regulations contains no indication whatsoever of any cooperation between the Parties, or any sharing of responsibilities in the management of the reserves. On the other hand, the fact that the local
authorities each requested the agreement of the other before fixing the limits of the
fishing reserves, “implied that they did not have exclusive jurisdiction to establish
39 Ibidem, para. 888.
40 ICJ, Frontier Dispute (Burkina Faso/Mali), Judgment, 22 December 1986, para. 63.
41 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, 17
December 2002, para. 126.
42 Croatia/Slovenia, para. 889, quoting from PCIJ, Legal Status of Eastern Greenland, Judgment, 5
April 1933, PCIJ Series A/B, No. 53, pp. 45–46.
43 See Croatia/Slovenia, paras 892–895.
A. Insolia
Having thus concluded that the Bay has the status of internal waters, the Tribunal
turns to the delimitation of those waters. Noting that UNCLOS contains no provision on the delimitation of internal waters, the Tribunal considers that such delimitation is to be made on the basis of the same principles applicable to the delimitation
of land territories, meaning, in this case, the principle of uti possidetis. The Tribunal
then observes that “the Parties agree that there had been no formal division of the
Bay between the two Republics prior to the dissolution of Yugoslavia and that they
inherited no legal title from that time” and “that no condominium had ever been
established in the Bay”. Therefore, the Tribunal concludes, the delimitation has to
be made “on the basis of the effectivités at the date of independence”.
39
Next, in
order to clarify the respective role of legal titles and effectivités in the application of
uti possidetis, the Tribunal recalls the famous dictum in the ICJ’s 1986 judgment in
Burkina Faso/Mali
40
—a judgment often referred to by the Court, especially in the
Indonesia/Malaysia case (to which the Arbitral Tribunal also refers), where it singled out the third “eventuality” mentioned in the dictum, indicating that “[i]n the
event that the effectivité does not correspond to any legal title, it must invariably be
taken into consideration”.
41
Finally, before examining the effectivités claimed by each Party with respect to
the Bay, the Arbitral Tribunal recalls that, as stated by the Permanent Court of
International Justice (‘PCIJ’), “a claim to sovereignty based not upon some particular act or title… but merely upon display of authority involves two elements… the
intention and will to act as sovereign and some actual exercise or display of such
authority”. In this regard, the Tribunal further recalls that:
in many cases, tribunals have been satisfied with very little in the way of the actual exercise
of sovereignty, for instance in the case of very small islands which were uninhabited or not
permanently inhabited. The situation is comparable in respect of the internal waters of the
Bay, over which the Parties had exercised limited activity before their independence.
42
As for the effectivités claimed by the two States, the Tribunal focuses especially
on those relating to regulation of fisheries and police patrol. With reference to the
former, the authorities of both Federate Republics adopted, each requesting the
prior agreement of the other, various decisions and regulations on the establishment
of fishing reserves which, taken all together, covered the entire Bay.
43
However, as
noted by the Tribunal, the text of those decisions and regulations contains no indication whatsoever of any cooperation between the Parties, or any sharing of responsibilities in the management of the reserves. On the other hand, the fact that the local
authorities each requested the agreement of the other before fixing the limits of the
fishing reserves, “implied that they did not have exclusive jurisdiction to establish
39 Ibidem, para. 888.
40 ICJ, Frontier Dispute (Burkina Faso/Mali), Judgment, 22 December 1986, para. 63.
41 ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, 17
December 2002, para. 126.
42 Croatia/Slovenia, para. 889, quoting from PCIJ, Legal Status of Eastern Greenland, Judgment, 5
April 1933, PCIJ Series A/B, No. 53, pp. 45–46.
43 See Croatia/Slovenia, paras 892–895.
A. Insolia