239
endorsing Slovenia’s position, reached a conclusion with which it is in fact difficult
to disagree. Significantly, that conclusion is supported by an examination of the
travaux préparatoires, even though no mention is made of them in the Tribunal’s
reasoning. While the ILC concluded its work on the draft articles specifying that,
because of the lack of sufficient data concerning bays bordered by two or more
States, it “felt bound to propose only rules applicable to bays the coast of which
belongs to a single State”,
69
the First Committee of the Geneva Convention introduced what is now paragraph 1 of Articles 7 TSC and 10 UNCLOS,
70
accepting a
proposal to that effect made by the United Kingdom. This confirms that the exclusionary clause in paragraph 1 of those Articles does not—to use the words of the
Arbitral Tribunal—“imply that they exclude the existence of bays with the character
of internal waters, the coasts of which belong to more than one State”.
71
The Tribunal
did not develop its reasoning any further.
One might observe, however, that this does not necessarily imply that the enclosure of multi-State bays is a practice permitted under international law.
72
Indeed, all
that can be said is that the matter is governed by unwritten law, i.e., by an existing
rule of customary law on the matter or, in its absence, by general principles of law.
In this respect, besides the principle asserted by Judge Oda in the passage quoted
above from his dissenting opinion in the Gulf of Fonseca case, it has been pointed
out in the literature that a number of considerations may oppose the enclosing of a
multinational bay.
73
These relate, for instance, to the exercise of fishing or shipping
rights, or to the need to ensure the freedom of navigation to and from the bay and
access from the high seas for all coastal States. Based on the drafting history of the
provision under discussion, the latter consideration appears to be of greater importance than the former.
74
69 See para. (7) of the commentary to Art. 7 of the ILC’s Articles concerning the Law of the Sea
with Commentaries, in Yearbook ILC, 1956, vol. II, at p. 269.
70 See UNCLOS I Official Records, vol. III, First Committee (Territorial Sea and Contiguous Zone),
p. 144. For a discussion of the travaux preparatoires of the various codification conventions, see
Scovazzi (2011), pp. 19–23.
71 Croatia/Slovenia, para. 884.
72 According to the traditional view, “as a rule all gulfs and bays enclosed by the land of more than
one littoral State, however narrow their entrance may be, are non-territorial. They are parts of the
open sea, the marginal belt inside the gulfs and bays excepted”, see Lauterpacht (1955), p. 508,
who nevertheless admitted an exception “in the case of such bays as possess the characteristics of
a closed sea”. See in this respect Central American Court of Justice, El Salvador v. Nicaragua,
Opinion and Decision, 9 March 1917, in AJIL, vol. 11, 1917, pp. 674–730, at p. 693. Today the
prevailing view seems to be that a multinational bay may be enclosed as internal waters by the
riparian States, subject to an agreement to that effect between them: see Giuliano et al. (1983),
pp. 153–155, Gioia (1993), p. 135, Scovazzi (2011), pp. 21 and 29, and Symmons (2017), p. 113.
Views, however, differs as to the specific object of such agreement. A more interlocutory position
is adopted by Churchill (2014), p. 6.
73 Bouchez (1964), pp. 173–177.
74 Gioia (1993), p. 105, regards it as “the only serious argument”. See ICJ, Land, Island and
Maritime Frontier Dispute, Judgment, para. 395.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
endorsing Slovenia’s position, reached a conclusion with which it is in fact difficult
to disagree. Significantly, that conclusion is supported by an examination of the
travaux préparatoires, even though no mention is made of them in the Tribunal’s
reasoning. While the ILC concluded its work on the draft articles specifying that,
because of the lack of sufficient data concerning bays bordered by two or more
States, it “felt bound to propose only rules applicable to bays the coast of which
belongs to a single State”,
69
the First Committee of the Geneva Convention introduced what is now paragraph 1 of Articles 7 TSC and 10 UNCLOS,
70
accepting a
proposal to that effect made by the United Kingdom. This confirms that the exclusionary clause in paragraph 1 of those Articles does not—to use the words of the
Arbitral Tribunal—“imply that they exclude the existence of bays with the character
of internal waters, the coasts of which belong to more than one State”.
71
The Tribunal
did not develop its reasoning any further.
One might observe, however, that this does not necessarily imply that the enclosure of multi-State bays is a practice permitted under international law.
72
Indeed, all
that can be said is that the matter is governed by unwritten law, i.e., by an existing
rule of customary law on the matter or, in its absence, by general principles of law.
In this respect, besides the principle asserted by Judge Oda in the passage quoted
above from his dissenting opinion in the Gulf of Fonseca case, it has been pointed
out in the literature that a number of considerations may oppose the enclosing of a
multinational bay.
73
These relate, for instance, to the exercise of fishing or shipping
rights, or to the need to ensure the freedom of navigation to and from the bay and
access from the high seas for all coastal States. Based on the drafting history of the
provision under discussion, the latter consideration appears to be of greater importance than the former.
74
69 See para. (7) of the commentary to Art. 7 of the ILC’s Articles concerning the Law of the Sea
with Commentaries, in Yearbook ILC, 1956, vol. II, at p. 269.
70 See UNCLOS I Official Records, vol. III, First Committee (Territorial Sea and Contiguous Zone),
p. 144. For a discussion of the travaux preparatoires of the various codification conventions, see
Scovazzi (2011), pp. 19–23.
71 Croatia/Slovenia, para. 884.
72 According to the traditional view, “as a rule all gulfs and bays enclosed by the land of more than
one littoral State, however narrow their entrance may be, are non-territorial. They are parts of the
open sea, the marginal belt inside the gulfs and bays excepted”, see Lauterpacht (1955), p. 508,
who nevertheless admitted an exception “in the case of such bays as possess the characteristics of
a closed sea”. See in this respect Central American Court of Justice, El Salvador v. Nicaragua,
Opinion and Decision, 9 March 1917, in AJIL, vol. 11, 1917, pp. 674–730, at p. 693. Today the
prevailing view seems to be that a multinational bay may be enclosed as internal waters by the
riparian States, subject to an agreement to that effect between them: see Giuliano et al. (1983),
pp. 153–155, Gioia (1993), p. 135, Scovazzi (2011), pp. 21 and 29, and Symmons (2017), p. 113.
Views, however, differs as to the specific object of such agreement. A more interlocutory position
is adopted by Churchill (2014), p. 6.
73 Bouchez (1964), pp. 173–177.
74 Gioia (1993), p. 105, regards it as “the only serious argument”. See ICJ, Land, Island and
Maritime Frontier Dispute, Judgment, para. 395.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award