245
3.1.2 Delimitation of the Waters Within the Bay
The applicability of the principle of uti possidetis juris in the context of maritime
delimitation was initially disputed,
100
but has since been repeatedly recognized in
international jurisprudence
101
and can be said to have been accepted by many commentators, who share the view that “uti possidetis contribue ainsi à la stabilité des
situations juridiques, y compris par rapport aux espaces maritimes, dans la mesure
où des régimes et des délimitations existaient durant la période précedent à
l’indépendendance”.
102
The Final Award further confirms this applicability. At the same time, however,
it does not fully dispel the reservations surrounding the actual application of uti possidetis in maritime delimitations. After noting “the absence of any provision on the
delimitation of internal waters in the Conventions concerning the law of the sea”,
103
the Tribunal equated internal waters with land territories in terms of the principles
to be applied for the purposes of delimitation. It then observed that the Parties
agreed that (i) “there had been no formal division of the Bay between the two
Republics” at the time of the SFRY, and (ii) “no condominium had ever been established in the Bay”.
104
In the absence of a legal title, the Tribunal focused its analysis
on the effectivités of the two States in the Bay in order to reconstruct the situation
existing at the time of their independence (i.e., the critical date established by Article
5 of the Arbitration Agreement).
In doing so, the Tribunal departed from the 1992 Gulf of Fonseca Judgment (the
only previous case where a similar question arose), which had so far guided its
analysis. In that judgment, the ICJ Chamber, having found that the principle in
question “should apply to the waters of the Gulf as well as to the land”, noted that it
was unable to determine the uti possidetis juris situation of 1821, since “[n]o evidence [had] been presented to the Chamber suggesting that there was for these
waters prior to, or at 1821, anything analogous to those boundaries of provincial
sway, which [had] been so much discussed in respect of the land”.
105
According to
the Chamber, the necessary conditions for application of uti possidetis in determining the legal status and regime of the waters of the Gulf were not met. Thus, having
accepted the principle in general terms, it excluded its applicability in practice.
100 AT, Case concerning the delimitation of maritime boundary between Guinea-Bissau and
Senegal, Decision, 31 July 1989, Dissenting Opinion of Judge Bedjaoui.
101 See ICJ, Land, Island and Maritime Frontier Dispute, paras 333 and 386, and Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 156.
102 Kohen (2009), p. 170. For an analysis of the role of uti possidetis in maritime delimitation, see
Nesi (1991). See however Lalonde (2014), pp. 270–272.
103 Croatia/Slovenia, para. 886. The Tribunal did not even consider the possibility of applying, by
analogy, Art. 15 UNCLOS, which, according to the prevailing legal opinion, is the most appropriate provision for delimiting internal waters (see supra, Sect. 3.1).
104 Ibidem, para. 888.
105 Land, Island and Maritime Frontier Dispute, para. 385.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
3.1.2 Delimitation of the Waters Within the Bay
The applicability of the principle of uti possidetis juris in the context of maritime
delimitation was initially disputed,
100
but has since been repeatedly recognized in
international jurisprudence
101
and can be said to have been accepted by many commentators, who share the view that “uti possidetis contribue ainsi à la stabilité des
situations juridiques, y compris par rapport aux espaces maritimes, dans la mesure
où des régimes et des délimitations existaient durant la période précedent à
l’indépendendance”.
102
The Final Award further confirms this applicability. At the same time, however,
it does not fully dispel the reservations surrounding the actual application of uti possidetis in maritime delimitations. After noting “the absence of any provision on the
delimitation of internal waters in the Conventions concerning the law of the sea”,
103
the Tribunal equated internal waters with land territories in terms of the principles
to be applied for the purposes of delimitation. It then observed that the Parties
agreed that (i) “there had been no formal division of the Bay between the two
Republics” at the time of the SFRY, and (ii) “no condominium had ever been established in the Bay”.
104
In the absence of a legal title, the Tribunal focused its analysis
on the effectivités of the two States in the Bay in order to reconstruct the situation
existing at the time of their independence (i.e., the critical date established by Article
5 of the Arbitration Agreement).
In doing so, the Tribunal departed from the 1992 Gulf of Fonseca Judgment (the
only previous case where a similar question arose), which had so far guided its
analysis. In that judgment, the ICJ Chamber, having found that the principle in
question “should apply to the waters of the Gulf as well as to the land”, noted that it
was unable to determine the uti possidetis juris situation of 1821, since “[n]o evidence [had] been presented to the Chamber suggesting that there was for these
waters prior to, or at 1821, anything analogous to those boundaries of provincial
sway, which [had] been so much discussed in respect of the land”.
105
According to
the Chamber, the necessary conditions for application of uti possidetis in determining the legal status and regime of the waters of the Gulf were not met. Thus, having
accepted the principle in general terms, it excluded its applicability in practice.
100 AT, Case concerning the delimitation of maritime boundary between Guinea-Bissau and
Senegal, Decision, 31 July 1989, Dissenting Opinion of Judge Bedjaoui.
101 See ICJ, Land, Island and Maritime Frontier Dispute, paras 333 and 386, and Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, para. 156.
102 Kohen (2009), p. 170. For an analysis of the role of uti possidetis in maritime delimitation, see
Nesi (1991). See however Lalonde (2014), pp. 270–272.
103 Croatia/Slovenia, para. 886. The Tribunal did not even consider the possibility of applying, by
analogy, Art. 15 UNCLOS, which, according to the prevailing legal opinion, is the most appropriate provision for delimiting internal waters (see supra, Sect. 3.1).
104 Ibidem, para. 888.
105 Land, Island and Maritime Frontier Dispute, para. 385.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award