243
reasons for this conclusion […] are the following: as to the historic character of the
Gulf waters, the consistent claim of the three coastal States […]”.
92
It seems very clear that, if we were to apply the criteria discussed so far to the
Bay of Piran, we would have to exclude the possibility of including the Bay in the
internal waters of the two coastal States concerned. First of all, while there is little
doubt as to the status of the waters of the Bay prior to Slovenia’s and Croatia’s independence, from that moment onwards no agreement on the matter can be found
between the two States. The years between independence and the Final Award saw
not only a persistent opposition on the part of Croatia, which requested that the Bay
be treated as territorial waters for delimitation purposes, but also Slovenia’s continous claim of sovereignty over the entire Bay, which went so far as to deny that
Croatia had any coastal State rights (despite one of the two entrance points of the
Bay being located on the Croatian coast). In short, the positions of the Parties could
not have been more widely divergent. It might be added that, even though the need
to guarantee the coastal States’ freedoms of communication between a bay and the
high seas is particularly strong where none of the entrance points of the bay is
located on the coast of one of the States, the fact that no agreement was reached on
Slovenia’s access to the high seas (a fact which long prevented final resolution of the
dispute), did not permit the conclusion that there was an agreement between the
Parties on the status of the Bay and the legal regime applying to it. Lastly, with
regard to Slovenia’s assertions of historic title to the Bay, it is worth noting again
that, from 1993 onwards, the State’s main argument in claiming the entire Bay of
Piran was based on the qualification of that maritime area as a Slovenian historic
bay, while in the course of the arbitration proceedings the argument lost some
importance and was put forward only as a third alternative.
93
In any case, the fact
that Croatia constantly opposed Slovenia’s claim certainly prevented the recognition of a historic title.
The Arbitral Tribunal, however, did not attach any importance to the above considerations: drawing a comparison with the finding of the Chamber of the ICJ in the
1992 Gulf of Fonseca case,
94
it concluded that the rights of the Parties in the Bay of
Piran were acquired by succession from the SFRY, and that the dissolution of the
Yugoslav Federation did not have the effect of altering the status of the Bay as internal waters.
95
Nothing indicates that the Tribunal accepted the arguments advanced
by Slovenia, which contended that the principle of “continuity of objective territorial situations” could be applied by analogy to the waters of the Bay and relied on
Article 11 of the 1978 Vienna Convention on Succession of States in respect of
Treaties.
96
Nor did the Tribunal bother to reject Croatia’s objections. The conclusion
92 Land, Island and Maritime Frontier Dispute, paras 394 and 405 (emphasis added).
93 Croatia/Slovenia, paras 815–832, esp. 816.
94 According to whom “[t]he rights in the Gulf of Fonseca of the present coastal States were thus
acquired, like their land territories, by succession from Spain”, see Land, Island and Maritime
Frontier Dispute, para. 385.
95 Croatia/Slovenia, paras 882–883.
96 Ibidem, paras 801–803.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
reasons for this conclusion […] are the following: as to the historic character of the
Gulf waters, the consistent claim of the three coastal States […]”.
92
It seems very clear that, if we were to apply the criteria discussed so far to the
Bay of Piran, we would have to exclude the possibility of including the Bay in the
internal waters of the two coastal States concerned. First of all, while there is little
doubt as to the status of the waters of the Bay prior to Slovenia’s and Croatia’s independence, from that moment onwards no agreement on the matter can be found
between the two States. The years between independence and the Final Award saw
not only a persistent opposition on the part of Croatia, which requested that the Bay
be treated as territorial waters for delimitation purposes, but also Slovenia’s continous claim of sovereignty over the entire Bay, which went so far as to deny that
Croatia had any coastal State rights (despite one of the two entrance points of the
Bay being located on the Croatian coast). In short, the positions of the Parties could
not have been more widely divergent. It might be added that, even though the need
to guarantee the coastal States’ freedoms of communication between a bay and the
high seas is particularly strong where none of the entrance points of the bay is
located on the coast of one of the States, the fact that no agreement was reached on
Slovenia’s access to the high seas (a fact which long prevented final resolution of the
dispute), did not permit the conclusion that there was an agreement between the
Parties on the status of the Bay and the legal regime applying to it. Lastly, with
regard to Slovenia’s assertions of historic title to the Bay, it is worth noting again
that, from 1993 onwards, the State’s main argument in claiming the entire Bay of
Piran was based on the qualification of that maritime area as a Slovenian historic
bay, while in the course of the arbitration proceedings the argument lost some
importance and was put forward only as a third alternative.
93
In any case, the fact
that Croatia constantly opposed Slovenia’s claim certainly prevented the recognition of a historic title.
The Arbitral Tribunal, however, did not attach any importance to the above considerations: drawing a comparison with the finding of the Chamber of the ICJ in the
1992 Gulf of Fonseca case,
94
it concluded that the rights of the Parties in the Bay of
Piran were acquired by succession from the SFRY, and that the dissolution of the
Yugoslav Federation did not have the effect of altering the status of the Bay as internal waters.
95
Nothing indicates that the Tribunal accepted the arguments advanced
by Slovenia, which contended that the principle of “continuity of objective territorial situations” could be applied by analogy to the waters of the Bay and relied on
Article 11 of the 1978 Vienna Convention on Succession of States in respect of
Treaties.
96
Nor did the Tribunal bother to reject Croatia’s objections. The conclusion
92 Land, Island and Maritime Frontier Dispute, paras 394 and 405 (emphasis added).
93 Croatia/Slovenia, paras 815–832, esp. 816.
94 According to whom “[t]he rights in the Gulf of Fonseca of the present coastal States were thus
acquired, like their land territories, by succession from Spain”, see Land, Island and Maritime
Frontier Dispute, para. 385.
95 Croatia/Slovenia, paras 882–883.
96 Ibidem, paras 801–803.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award