238
had certainly become internal waters before the entry into force of UNCLOS, seems
sufficient to conclude that the Tribunal’s decision was correct. Moreover, with
regard to the effects of a failure to comply with the publicity-related requirements
under Article 16 UNCLOS, the scarcity of state practice seems to indicate that the
only possible obstacle to the enclosure of the Bay was opposition by a third State to
the decision to measure the territorial sea from the baseline connecting Cape
Madona and Cape Savudrija.
64
In this sense, it is of crucial importance that, during
the negotiations between Italy and Yugoslavia that would lead to the signing of the
1975 Treaty of Osimo, “a sketch map of the relevant maritime areas was produced
in 1964 by Italy in which the closing line of the Bay was clearly indicated”.
65
As for the determination of the status of the Bay following the dissolution of the
SFRY, several observations are necessary. First of all, the Tribunal should have further developed its analysis of this aspect, which was of fundamental importance in
reaching a decision.
66
As we have seen, the Tribunal’s analysis was based on two
factors: the 1992 judgment of a Chamber of the ICJ in the Gulf of Fonseca case,
which will be discuss later on, and the permissive interpretation of the exclusionary
clause in Articles 7 TSC and 10 UNCLOS, which I will discuss now.
The Tribunal was faced with the following problem: how to interpret the silence
of the relevant international conventions on the law applicable to so-called pluriState bays. As already noted, the two relevant provisions, Article 7 TSC and Article
10 UNCLOS, are substantially identical, except for insignificant differences in
wording. Paragraph 1 of both articles limits the application of the geographical and
geometrical criteria set out in the subsequent paragraphs, as well as the legal consequences arising from compliance with those criteria, to (geographic) bays whose
coasts belong to a single State. Now, the extent of this limitation is unclear, and legal
opinion is divided on whether such limitation reflects, as stated by Croatia, “a rule
of international law ‘that a closing line can only be drawn across a bay, the coast of
which belongs to a single State’”.
67
In support of their respective arguments, Croatia and Slovenia made reference to
the travaux préparatoires of the provision under discussion, namely to the
International Law Commission (ILC)’s draft articles on the “Regime of the territorial sea” and to the documents prepared by the First Committee of the First United
Nations Conference on the Law of the Sea held in Geneva in 1958.
68
The Tribunal,
on the other hand, seemed to have no difficulties in interpreting the provision and,
64 See Symmons and Reed (2010), pp. 96–97.
65 Croatia/Slovenia, para. 879. See also Charney and Alexander (1993), p. 1642, and the map at
p. 1645.
66 After an extensive and detailed presentation of the Parties’ positions (see Croatia/Slovenia, paras
788–832), the Tribunal devoted just 5 paragraphs to its analysis (ibidem, paras 881–885).
67 Ibidem, para. 798. Slovenia’s position on this issue was contradictory: even though it argued that
Articles 7 TSC and 10 UNCLOS left open the question of whether a closing line can be drawn
across a multinational bay (paras 793–794), it also contended that the Bay derived legal status as
internal waters precisely under the rules embodied in those Articles (paras 789 and 816).
68 Ibidem, paras 791–800.
A. Insolia
had certainly become internal waters before the entry into force of UNCLOS, seems
sufficient to conclude that the Tribunal’s decision was correct. Moreover, with
regard to the effects of a failure to comply with the publicity-related requirements
under Article 16 UNCLOS, the scarcity of state practice seems to indicate that the
only possible obstacle to the enclosure of the Bay was opposition by a third State to
the decision to measure the territorial sea from the baseline connecting Cape
Madona and Cape Savudrija.
64
In this sense, it is of crucial importance that, during
the negotiations between Italy and Yugoslavia that would lead to the signing of the
1975 Treaty of Osimo, “a sketch map of the relevant maritime areas was produced
in 1964 by Italy in which the closing line of the Bay was clearly indicated”.
65
As for the determination of the status of the Bay following the dissolution of the
SFRY, several observations are necessary. First of all, the Tribunal should have further developed its analysis of this aspect, which was of fundamental importance in
reaching a decision.
66
As we have seen, the Tribunal’s analysis was based on two
factors: the 1992 judgment of a Chamber of the ICJ in the Gulf of Fonseca case,
which will be discuss later on, and the permissive interpretation of the exclusionary
clause in Articles 7 TSC and 10 UNCLOS, which I will discuss now.
The Tribunal was faced with the following problem: how to interpret the silence
of the relevant international conventions on the law applicable to so-called pluriState bays. As already noted, the two relevant provisions, Article 7 TSC and Article
10 UNCLOS, are substantially identical, except for insignificant differences in
wording. Paragraph 1 of both articles limits the application of the geographical and
geometrical criteria set out in the subsequent paragraphs, as well as the legal consequences arising from compliance with those criteria, to (geographic) bays whose
coasts belong to a single State. Now, the extent of this limitation is unclear, and legal
opinion is divided on whether such limitation reflects, as stated by Croatia, “a rule
of international law ‘that a closing line can only be drawn across a bay, the coast of
which belongs to a single State’”.
67
In support of their respective arguments, Croatia and Slovenia made reference to
the travaux préparatoires of the provision under discussion, namely to the
International Law Commission (ILC)’s draft articles on the “Regime of the territorial sea” and to the documents prepared by the First Committee of the First United
Nations Conference on the Law of the Sea held in Geneva in 1958.
68
The Tribunal,
on the other hand, seemed to have no difficulties in interpreting the provision and,
64 See Symmons and Reed (2010), pp. 96–97.
65 Croatia/Slovenia, para. 879. See also Charney and Alexander (1993), p. 1642, and the map at
p. 1645.
66 After an extensive and detailed presentation of the Parties’ positions (see Croatia/Slovenia, paras
788–832), the Tribunal devoted just 5 paragraphs to its analysis (ibidem, paras 881–885).
67 Ibidem, para. 798. Slovenia’s position on this issue was contradictory: even though it argued that
Articles 7 TSC and 10 UNCLOS left open the question of whether a closing line can be drawn
across a multinational bay (paras 793–794), it also contended that the Bay derived legal status as
internal waters precisely under the rules embodied in those Articles (paras 789 and 816).
68 Ibidem, paras 791–800.
A. Insolia