247
3.1.3 Regime for the Use of the Bay
The Tribunal’s assertion that there was no need to define any particular usage regime
in the Bay, different from what applied under international law seems a little shortsighted. The many fishing incidents that occurred in the year following the adoption
of the Final Award demonstrate how delicate this aspect of the dispute was and still
is for the Parties. At the same time, the tightening of the regime in place at the time
of the SFRY into a clear-cut division of the waters of the Bay as internal waters of
the two States could certainly not be expected to encourage a recalcitrant Croatia to
reassess its position with respect to the implementation of the Final Award.
110
As was noted while the arbitration proceedings were underway, it is not necessary for the Tribunal to delimit the waters of the Bay, because, as both States are
members of the European Union, a form of “condominium” or of enhanced cooperation could be established.
111
In this regard, the Tribunal merely noted that the
Parties agreed that “no condominium had ever been established in the Bay”.
112
However, in the 1992 Gulf of Fonseca case, the ICJ Chamber regarded such an
agreement as superfluous, because “[a] State succession is one of the ways in which
territorial sovereignty passes from one State to another; and there seems no reason
in principle why a succession should not create a joint sovereignty where a single
and undivided maritime area passes to two or more new States”.
113
It appears, therefore, that there was no obstacle to the establishment of a similar
regime in the Bay of Piran. Moreover, the Chamber regarded joint sovereignty as a
regime that, in addition to creating a perfect equality of rights among coastal States,
could cease to exist in case of a future delimitation directly agreed between the
Parties. In doing so, the Chamber emphasized the “community of interests” existing
among the three coastal States bordering on the Gulf,
114
thus giving a clear sign in
110 At the hearing, Slovenia initially opened the door on the possibility of establishing a regime in
the Bay other than the one normally applicable to internal waters: “the Bay is one area where a
special “regime” could be appropriate in the event that the Tribunal is willing to consider the
entirety of the Bay to have the status of Slovenian internal waters”. The door was swiftly closed
again, however, when Slovenia specified that, under the suggested special regime, “Croatian police
operations may take place within the Bay of Piran, on the understanding that they would be limited
to a narrow strip of water along the coast of Croatia, and are conducted for the sole purpose of the
security and safety of the Croatian coast bordering the bay” (Croatia/Slovenia, para. 861).
111 Cataldi (2016), p. 191. See also Vukas (2006), p. 210.
112 Croatia/Slovenia, para. 888. On the notion of condominium in international law, see Del Vecchio
(1988), who notes (p. 2) that, normally, the basis for the establishment of a condominium between
two or more States is a an agreement between those States, especially in case of “succession condominia” (in Italian, “condomini di successione”).
113 Land, Island and Maritime Frontier Dispute, para. 399.
114 It is worth comparing this with the reasoning of the Central American Court of Justice in 1917.
Based on an inherently limited notion of State sovereignty (according to which the “function of
sovereignty in a state […] extends as far as the sovereign rights of other States”), that Court noted:
“This doctrine takes on added moral and legal force when applied to such Central American countries as El Salvador, Honduras and Nicaragua, because in each independence and sovereignty with
respect to the Gulf of Fonseca are limited by the concurrence of rights which carries with it, as a
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
3.1.3 Regime for the Use of the Bay
The Tribunal’s assertion that there was no need to define any particular usage regime
in the Bay, different from what applied under international law seems a little shortsighted. The many fishing incidents that occurred in the year following the adoption
of the Final Award demonstrate how delicate this aspect of the dispute was and still
is for the Parties. At the same time, the tightening of the regime in place at the time
of the SFRY into a clear-cut division of the waters of the Bay as internal waters of
the two States could certainly not be expected to encourage a recalcitrant Croatia to
reassess its position with respect to the implementation of the Final Award.
110
As was noted while the arbitration proceedings were underway, it is not necessary for the Tribunal to delimit the waters of the Bay, because, as both States are
members of the European Union, a form of “condominium” or of enhanced cooperation could be established.
111
In this regard, the Tribunal merely noted that the
Parties agreed that “no condominium had ever been established in the Bay”.
112
However, in the 1992 Gulf of Fonseca case, the ICJ Chamber regarded such an
agreement as superfluous, because “[a] State succession is one of the ways in which
territorial sovereignty passes from one State to another; and there seems no reason
in principle why a succession should not create a joint sovereignty where a single
and undivided maritime area passes to two or more new States”.
113
It appears, therefore, that there was no obstacle to the establishment of a similar
regime in the Bay of Piran. Moreover, the Chamber regarded joint sovereignty as a
regime that, in addition to creating a perfect equality of rights among coastal States,
could cease to exist in case of a future delimitation directly agreed between the
Parties. In doing so, the Chamber emphasized the “community of interests” existing
among the three coastal States bordering on the Gulf,
114
thus giving a clear sign in
110 At the hearing, Slovenia initially opened the door on the possibility of establishing a regime in
the Bay other than the one normally applicable to internal waters: “the Bay is one area where a
special “regime” could be appropriate in the event that the Tribunal is willing to consider the
entirety of the Bay to have the status of Slovenian internal waters”. The door was swiftly closed
again, however, when Slovenia specified that, under the suggested special regime, “Croatian police
operations may take place within the Bay of Piran, on the understanding that they would be limited
to a narrow strip of water along the coast of Croatia, and are conducted for the sole purpose of the
security and safety of the Croatian coast bordering the bay” (Croatia/Slovenia, para. 861).
111 Cataldi (2016), p. 191. See also Vukas (2006), p. 210.
112 Croatia/Slovenia, para. 888. On the notion of condominium in international law, see Del Vecchio
(1988), who notes (p. 2) that, normally, the basis for the establishment of a condominium between
two or more States is a an agreement between those States, especially in case of “succession condominia” (in Italian, “condomini di successione”).
113 Land, Island and Maritime Frontier Dispute, para. 399.
114 It is worth comparing this with the reasoning of the Central American Court of Justice in 1917.
Based on an inherently limited notion of State sovereignty (according to which the “function of
sovereignty in a state […] extends as far as the sovereign rights of other States”), that Court noted:
“This doctrine takes on added moral and legal force when applied to such Central American countries as El Salvador, Honduras and Nicaragua, because in each independence and sovereignty with
respect to the Gulf of Fonseca are limited by the concurrence of rights which carries with it, as a
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award