241
Worthy of note in this regard is the case of the Bay of Klek. At the time of the
SFRY, the bay was included, as internal waters, in the Yugoslav system of straight
baselines. After the dissolution of the Federation, however, the waters in the northwest part of the bay (near the town of Neum) and in the Klek-Neum corridor fell
under the sovereignty of Croatia and Bosnia-Herzegovina, and were later delimited
by the 1999 State Border Treaty, through the adoption of a line of equidistance.
82
Also of particular interest for our purposes is the maritime boundary dispute between
Croatia and Montenegro concerning the delimitation of the waters within and outside the Bay of Kotor. The situation is comparable to that of the Bay of Piran, since
the Bay of Kotor, too, was part of Yugoslavia’s internal waters by virtue of the provisions examined above. So here we have a similar problem of State succession with
respect to the sovereign rights over the waters of the bay. Following the dissolution
of the Yugoslav Federation, however, Croatia and Montenegro signed a Protocol of
a provisionary nature
83
which establishes a “Zone” in the waters at the entrance of
the Bay and bordering the northeastern coast of the Prevlaka peninsula. The Protocol
also provides for delimitation outside the Bay, drawing a boundary line that considerably departs from the line of equidistance in favour of Montenegro. Special fisheries and joint patrol regimes apply to the Zone, and military vessels may not enter the
Zone. Although the Parties probably intended to create a condominium over the
waters at the entrance of the Bay, in practice they seem to “have treated the Zone’s
limits as having delimitation properties as well”.
84
Article 1 of the Protocol specifies, however, that the provisional regime thus established “shall not in any way
prejudice delimitation between the two States”. Judging from more recent events, it
seems that the dispute concerning that delimitation is still unresolved.
85
Another
relevant example is the dispute between Russia and Ukraine concerning the status
of, and right of passage in, the Sea of Azov and Kerch Strait, currently in arbitration
before the Permanent Court of Arbitration. This case, too, raises the issue of succession to sovereignty over disputed waters, as well the question of their delimitation.
It is difficult to draw definitive conclusions from the State practice examined
above. Considering the diversity that characterize it, one is be tempted to agree with
Strohl that “[e]ach bay of this type is in itself a special situation wherein the practices of the States concerned have usually evolved through the mutual recognition
82 Art. 4(3) of the Treaty, provisionally in force (available at: http://www.un.org/depts/los/).
83 Protocol between the Government of the Republic of Croatia and the Federal Government of the
Federal Republic of Yugoslavia on the Interim Regime along the Southern Border between the Two
States, 10 December 2002. The Protocol establishes an “interim regime” that “shall not in any way
prejudice delimitation between the two States” (Art. 1).
84 Arnaut (2014), p. 157.
85 In 2008 the two States agreed to conclude a special agreement providing for the submission of
the dispute to the International Court of Justice. A recent communication from Montenegro concerning Croatia’s decision to allow the exploration and exploitation of resources in an area disputed between the two States, however, indicates that such an agreement has not yet been
concluded. See Communication from the Government of Montenegro, dated 18 May 2015 concerning exploration and exploitation of resources in the Adriatic Sea by the Republic of Croatia, available at: http://www.un.org/depts/los/.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
Worthy of note in this regard is the case of the Bay of Klek. At the time of the
SFRY, the bay was included, as internal waters, in the Yugoslav system of straight
baselines. After the dissolution of the Federation, however, the waters in the northwest part of the bay (near the town of Neum) and in the Klek-Neum corridor fell
under the sovereignty of Croatia and Bosnia-Herzegovina, and were later delimited
by the 1999 State Border Treaty, through the adoption of a line of equidistance.
82
Also of particular interest for our purposes is the maritime boundary dispute between
Croatia and Montenegro concerning the delimitation of the waters within and outside the Bay of Kotor. The situation is comparable to that of the Bay of Piran, since
the Bay of Kotor, too, was part of Yugoslavia’s internal waters by virtue of the provisions examined above. So here we have a similar problem of State succession with
respect to the sovereign rights over the waters of the bay. Following the dissolution
of the Yugoslav Federation, however, Croatia and Montenegro signed a Protocol of
a provisionary nature
83
which establishes a “Zone” in the waters at the entrance of
the Bay and bordering the northeastern coast of the Prevlaka peninsula. The Protocol
also provides for delimitation outside the Bay, drawing a boundary line that considerably departs from the line of equidistance in favour of Montenegro. Special fisheries and joint patrol regimes apply to the Zone, and military vessels may not enter the
Zone. Although the Parties probably intended to create a condominium over the
waters at the entrance of the Bay, in practice they seem to “have treated the Zone’s
limits as having delimitation properties as well”.
84
Article 1 of the Protocol specifies, however, that the provisional regime thus established “shall not in any way
prejudice delimitation between the two States”. Judging from more recent events, it
seems that the dispute concerning that delimitation is still unresolved.
85
Another
relevant example is the dispute between Russia and Ukraine concerning the status
of, and right of passage in, the Sea of Azov and Kerch Strait, currently in arbitration
before the Permanent Court of Arbitration. This case, too, raises the issue of succession to sovereignty over disputed waters, as well the question of their delimitation.
It is difficult to draw definitive conclusions from the State practice examined
above. Considering the diversity that characterize it, one is be tempted to agree with
Strohl that “[e]ach bay of this type is in itself a special situation wherein the practices of the States concerned have usually evolved through the mutual recognition
82 Art. 4(3) of the Treaty, provisionally in force (available at: http://www.un.org/depts/los/).
83 Protocol between the Government of the Republic of Croatia and the Federal Government of the
Federal Republic of Yugoslavia on the Interim Regime along the Southern Border between the Two
States, 10 December 2002. The Protocol establishes an “interim regime” that “shall not in any way
prejudice delimitation between the two States” (Art. 1).
84 Arnaut (2014), p. 157.
85 In 2008 the two States agreed to conclude a special agreement providing for the submission of
the dispute to the International Court of Justice. A recent communication from Montenegro concerning Croatia’s decision to allow the exploration and exploitation of resources in an area disputed between the two States, however, indicates that such an agreement has not yet been
concluded. See Communication from the Government of Montenegro, dated 18 May 2015 concerning exploration and exploitation of resources in the Adriatic Sea by the Republic of Croatia, available at: http://www.un.org/depts/los/.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award