237
sovereignty as over the territorial sea”.
56
In the case of certain maritime areas, such
as the so-called historic bays, the reference to historic title has not infrequently been
interpreted as entailing the application of the uti possidetis principle in a maritime
delimitation,
57
with the successor State(s) replacing the predecessor State in its
rights according to the geographic boundaries set by the latter.
58
All the above having been said, the issue of the delimitation of internal waters
between States with opposite or adjacent coasts may arise, not only where two
States “share a system of straight baselines”,
59
but precisely “in the case of a bay
with several riparians”.
60
It is precisely in the light of state practice relating to those
areas that the solution offered by the Tribunal in the Final Award is unconvincing.
3.1.1 The Status of the Waters Within the Bay
The first criticism that can be made of the Final Award concerns the Tribunal’s
determination as to the status of the Bay, and in particular its conclusions on the
effect of the dissolution of the SFRY.
Let me clarify at the outset that I find nothing debatable or questionable in the
Tribunal’s determinations concerning the period prior to the dissolution of the
Yugoslav Federation. The Tribunal was right in rejecting Croatia’s arguments that
(i) Article 3 of the SFRY Law of 1965 was merely an “enabling provision”, and (ii)
since Slovenia had failed to identify “a single official chart in existence before the
critical date”
61
and show “that Yugoslavia published the exact coordinates of those
selected natural entrance points”,
62
there was no evidence that Yugoslavia ever drew
a closing line across the mouth of the Bay. It is true that “[t]he delimitation of sea
areas has always an international aspect [and] cannot be dependent merely upon the
will of the coastal State as expressed in its municipal law”.
63
However, the 1958
Territorial Sea Convention contained no obligation to give due publicity to the closing lines of juridical bays. That fact, together with the consideration that the Bay
56 Juridical Régime of Historic Waters, including Historic Bays, Study Prepared by the Secretariat,
UN Doc. A/CN.4/143, in Yearbook ILC, 1962, vol. II, pp. 1–26, at p. 23, para. 167.
57 ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, 8 October 2007, para. 232.
58 Kohen (2009), at p. 170.
59 Trümpler (2017), p. 89.
60 Tanaka (2015), p. 198. See also Vukas (2007), pp. 559–560.
61 Croatia/Slovenia, para. 784.
62 Ibidem, para. 785. The Tribunal itself noted that official documents from the Parties showed that,
at the time of the SFRY, they both regarded the Bay at times as territorial sea, and at other times as
internal waters (ibidem, paras 782 and 786).
63 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment, 18 December 1951, ICJ Reports
1951, p. 132. In the case at hand, Art. 16(2) of the SFRY Act of 1987 provided that the baseline
from which the territorial sea of the SFRY was measured was “formed by: […] (3) The straight
lines closing the mouths of bays”.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
sovereignty as over the territorial sea”.
56
In the case of certain maritime areas, such
as the so-called historic bays, the reference to historic title has not infrequently been
interpreted as entailing the application of the uti possidetis principle in a maritime
delimitation,
57
with the successor State(s) replacing the predecessor State in its
rights according to the geographic boundaries set by the latter.
58
All the above having been said, the issue of the delimitation of internal waters
between States with opposite or adjacent coasts may arise, not only where two
States “share a system of straight baselines”,
59
but precisely “in the case of a bay
with several riparians”.
60
It is precisely in the light of state practice relating to those
areas that the solution offered by the Tribunal in the Final Award is unconvincing.
3.1.1 The Status of the Waters Within the Bay
The first criticism that can be made of the Final Award concerns the Tribunal’s
determination as to the status of the Bay, and in particular its conclusions on the
effect of the dissolution of the SFRY.
Let me clarify at the outset that I find nothing debatable or questionable in the
Tribunal’s determinations concerning the period prior to the dissolution of the
Yugoslav Federation. The Tribunal was right in rejecting Croatia’s arguments that
(i) Article 3 of the SFRY Law of 1965 was merely an “enabling provision”, and (ii)
since Slovenia had failed to identify “a single official chart in existence before the
critical date”
61
and show “that Yugoslavia published the exact coordinates of those
selected natural entrance points”,
62
there was no evidence that Yugoslavia ever drew
a closing line across the mouth of the Bay. It is true that “[t]he delimitation of sea
areas has always an international aspect [and] cannot be dependent merely upon the
will of the coastal State as expressed in its municipal law”.
63
However, the 1958
Territorial Sea Convention contained no obligation to give due publicity to the closing lines of juridical bays. That fact, together with the consideration that the Bay
56 Juridical Régime of Historic Waters, including Historic Bays, Study Prepared by the Secretariat,
UN Doc. A/CN.4/143, in Yearbook ILC, 1962, vol. II, pp. 1–26, at p. 23, para. 167.
57 ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, 8 October 2007, para. 232.
58 Kohen (2009), at p. 170.
59 Trümpler (2017), p. 89.
60 Tanaka (2015), p. 198. See also Vukas (2007), pp. 559–560.
61 Croatia/Slovenia, para. 784.
62 Ibidem, para. 785. The Tribunal itself noted that official documents from the Parties showed that,
at the time of the SFRY, they both regarded the Bay at times as territorial sea, and at other times as
internal waters (ibidem, paras 782 and 786).
63 ICJ, Fisheries Case (United Kingdom v. Norway), Judgment, 18 December 1951, ICJ Reports
1951, p. 132. In the case at hand, Art. 16(2) of the SFRY Act of 1987 provided that the baseline
from which the territorial sea of the SFRY was measured was “formed by: […] (3) The straight
lines closing the mouths of bays”.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award