246
While the Arbitral Tribunal followed the Court on the point of principle, it also
proceeded to its concrete application in the case at hand. However, it is doubtful
whether it could rely on stronger evidence than that which was presented to the ICJ
in the Gulf of Fonseca case. Indeed, as recalled by the Tribunal itself, “in many
cases, tribunals have been satisfied with very little in the way of the actual exercise
of sovereignty, for instance in the case of very small islands which were uninhabited
or not permanently inhabited”.
106
However, it has been rightly observed that, “[o]n
peut se demander si des effectivités accomplies à une époque où aucune république
composante de la fédération yougoslave ne pouvait revendiquer de juridiction
exclusive sur la baie peuvent servir de base à une délimitation postérieure à
l’indépendance de ces républiques”.
107
The same might be said of what the Tribunal
regarded as each Party’s acquiescence to the exercise of jurisdiction by the other
Party
108
: it is difficult to maintain that the authorities of the two Federate Repubblics
could validly acquiesce to activities that could hardly be characterized as pursued à
titre de souverain. All of this clearly shows the impact that Article 5 of the Arbitration
Agreement had on the analysis of the Tribunal, which, when actually determining
the course of the maritime boundary, was unable to consider as relevant the activities undertaken by the Parties after the critical date
109
and, therefore, could only rely
on the Račan-Drnovšek Agreement of 2001—an agreement that, it must be stressed,
never entered into force due the Croatian parliament’s refusal to ratify it.
In reaching its decision to allocate two-thirds of the Bay to Slovenia, the Tribunal
seems to have taken into account the special geographical circumstances that characterize the Slovenian coast—which, surrounded as it is by the territorial seas of
Croatia and Italy, lacks direct access to the high seas—and make that State “geographically disadvantaged” within the meaning of Article 70 UNCLOS.
However, a similar result—one involving a lesser sacrifice of Croatia’s rights—
could have been reached by applying to the entire Gulf of Trieste the principles
relating to the delimitation of the territorial sea between States with opposite or
adjacent coasts. At the very least, the Tribunal—to partially mitigate the effects on
Croatia’s sovereign rights of the delimitation based on uti possidetis, and considering that the importance of the disputed area for both Parties would cause difficulties
in implementing the Final Award—could have better used the wider powers conferred upon it by Article 4(1)(b) for the determination of the regime for the use of
the Bay.
106 Croatia/Slovenia, para. 889, where the Tribunal referred to ICJ, Sovereignty over Pulau Ligitan
and Pulau Sipadan, para. 134. For a similar reasoning, see Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea, para. 173. In both cases, the Court established the sovereignty over the disputed islands and rocks mostly, if not exclusively, on the basis of
post-colonial effectivités.
107 Kohen and Gómez Pulisich (2017), p. 355. A more cautious view was expressed by Aloupi
(2017), p. 1129.
108 Croatia/Slovenia, paras 901 and 912.
109 Ibidem, para. 908.
A. Insolia
While the Arbitral Tribunal followed the Court on the point of principle, it also
proceeded to its concrete application in the case at hand. However, it is doubtful
whether it could rely on stronger evidence than that which was presented to the ICJ
in the Gulf of Fonseca case. Indeed, as recalled by the Tribunal itself, “in many
cases, tribunals have been satisfied with very little in the way of the actual exercise
of sovereignty, for instance in the case of very small islands which were uninhabited
or not permanently inhabited”.
106
However, it has been rightly observed that, “[o]n
peut se demander si des effectivités accomplies à une époque où aucune république
composante de la fédération yougoslave ne pouvait revendiquer de juridiction
exclusive sur la baie peuvent servir de base à une délimitation postérieure à
l’indépendance de ces républiques”.
107
The same might be said of what the Tribunal
regarded as each Party’s acquiescence to the exercise of jurisdiction by the other
Party
108
: it is difficult to maintain that the authorities of the two Federate Repubblics
could validly acquiesce to activities that could hardly be characterized as pursued à
titre de souverain. All of this clearly shows the impact that Article 5 of the Arbitration
Agreement had on the analysis of the Tribunal, which, when actually determining
the course of the maritime boundary, was unable to consider as relevant the activities undertaken by the Parties after the critical date
109
and, therefore, could only rely
on the Račan-Drnovšek Agreement of 2001—an agreement that, it must be stressed,
never entered into force due the Croatian parliament’s refusal to ratify it.
In reaching its decision to allocate two-thirds of the Bay to Slovenia, the Tribunal
seems to have taken into account the special geographical circumstances that characterize the Slovenian coast—which, surrounded as it is by the territorial seas of
Croatia and Italy, lacks direct access to the high seas—and make that State “geographically disadvantaged” within the meaning of Article 70 UNCLOS.
However, a similar result—one involving a lesser sacrifice of Croatia’s rights—
could have been reached by applying to the entire Gulf of Trieste the principles
relating to the delimitation of the territorial sea between States with opposite or
adjacent coasts. At the very least, the Tribunal—to partially mitigate the effects on
Croatia’s sovereign rights of the delimitation based on uti possidetis, and considering that the importance of the disputed area for both Parties would cause difficulties
in implementing the Final Award—could have better used the wider powers conferred upon it by Article 4(1)(b) for the determination of the regime for the use of
the Bay.
106 Croatia/Slovenia, para. 889, where the Tribunal referred to ICJ, Sovereignty over Pulau Ligitan
and Pulau Sipadan, para. 134. For a similar reasoning, see Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea, para. 173. In both cases, the Court established the sovereignty over the disputed islands and rocks mostly, if not exclusively, on the basis of
post-colonial effectivités.
107 Kohen and Gómez Pulisich (2017), p. 355. A more cautious view was expressed by Aloupi
(2017), p. 1129.
108 Croatia/Slovenia, paras 901 and 912.
109 Ibidem, para. 908.
A. Insolia