248
favour of the establishment of a regime of cooperation between the Parties. In light
of the subsequent developments in the trilateral relations between the Gulf States,
the ICJ ultimately seems to have lost its “gamble”,
115
but the doubt remains whether
the adoption of a comparable solution by the Arbitral Tribunal would have facilitated prompt implementation of the Final Award. That solution would have been
especially appropriate considering that “a boundary is important when it delimits
communities, not when it relates to the exploitation of resources”.
116
Even accepting that the best option was to effect a delimitation of the waters of
the Bay, the Tribunal deserves at least some criticism for not having used the wide
discretion granted to it by Article 4(1)(b) of the Arbitration Agreement, which identified “international law, equity and the principle of good neighbourly relations” as
the law applicable to the determination of the regime for the use of “the relevant
maritime areas”—i.e., all disputed areas, including the Bay of Piran. Leaving aside
the question of the content and scope of the principle of good neighbourly relations,
reference to that principle and to equity clearly conferred upon the Tribunal the
power to depart from strict application of the law in defining a usage regime in the
Bay, where, as in all internal waters, States have no right of innocent passage, let
alone in respect of fishing activities. As has been noted, the 1983 Agreement between
Italy and Yugoslavia on a common fishing zone in the Gulf of Trieste, could have
provided a model for the establishment of a similar regime in the Bay, or even just
part of it.
117
But even focusing only on the primary source that the Tribunal had to
apply, i.e., international law, it cannot be ignored that the coastal States of a “semienclosed sea”
118
are under an obligation to cooperate pursuant to Article 123
logical postulate, a reciprocal limitation”. Then, referring to “[t]he solidarity of the interests that
relate to the independence and sovereignty of Central America, considered as a single nation”, it
concluded: “A reciprocal duty is entailed upon the Governments of E1 Salvador and Nicaragua to
guard those supreme interests, which are confided to the custody of all the sister countries” (El
Salvador v. Nicaragua, AJIL, vol. 11, 1917, pp. 718–719). For a discussion of the argument that
“the continuing community of interests” of the coastal States bordering a multinational bay is
always a determining factor in defining the regime for the use of the bay, see Strohl (1963),
pp. 374–376.
115 See Rossi (2015), pp. 835 and 838–840.
116 Conforti (1987), p. 180. See also the chapter by Cataldi in this volume.
117 Cataldi (2016), p. 191. As noted by Del Vecchio (2004), p. 41, neither Slovenia nor Croatia has
declared its intention to succeed to the Agreement due to doubts as to the transfer of fishing rights
in a disputed area.
118 For the application of this notion to the Adriatic Sea, see Sersic (2002).
A. Insolia
favour of the establishment of a regime of cooperation between the Parties. In light
of the subsequent developments in the trilateral relations between the Gulf States,
the ICJ ultimately seems to have lost its “gamble”,
115
but the doubt remains whether
the adoption of a comparable solution by the Arbitral Tribunal would have facilitated prompt implementation of the Final Award. That solution would have been
especially appropriate considering that “a boundary is important when it delimits
communities, not when it relates to the exploitation of resources”.
116
Even accepting that the best option was to effect a delimitation of the waters of
the Bay, the Tribunal deserves at least some criticism for not having used the wide
discretion granted to it by Article 4(1)(b) of the Arbitration Agreement, which identified “international law, equity and the principle of good neighbourly relations” as
the law applicable to the determination of the regime for the use of “the relevant
maritime areas”—i.e., all disputed areas, including the Bay of Piran. Leaving aside
the question of the content and scope of the principle of good neighbourly relations,
reference to that principle and to equity clearly conferred upon the Tribunal the
power to depart from strict application of the law in defining a usage regime in the
Bay, where, as in all internal waters, States have no right of innocent passage, let
alone in respect of fishing activities. As has been noted, the 1983 Agreement between
Italy and Yugoslavia on a common fishing zone in the Gulf of Trieste, could have
provided a model for the establishment of a similar regime in the Bay, or even just
part of it.
117
But even focusing only on the primary source that the Tribunal had to
apply, i.e., international law, it cannot be ignored that the coastal States of a “semienclosed sea”
118
are under an obligation to cooperate pursuant to Article 123
logical postulate, a reciprocal limitation”. Then, referring to “[t]he solidarity of the interests that
relate to the independence and sovereignty of Central America, considered as a single nation”, it
concluded: “A reciprocal duty is entailed upon the Governments of E1 Salvador and Nicaragua to
guard those supreme interests, which are confided to the custody of all the sister countries” (El
Salvador v. Nicaragua, AJIL, vol. 11, 1917, pp. 718–719). For a discussion of the argument that
“the continuing community of interests” of the coastal States bordering a multinational bay is
always a determining factor in defining the regime for the use of the bay, see Strohl (1963),
pp. 374–376.
115 See Rossi (2015), pp. 835 and 838–840.
116 Conforti (1987), p. 180. See also the chapter by Cataldi in this volume.
117 Cataldi (2016), p. 191. As noted by Del Vecchio (2004), p. 41, neither Slovenia nor Croatia has
declared its intention to succeed to the Agreement due to doubts as to the transfer of fishing rights
in a disputed area.
118 For the application of this notion to the Adriatic Sea, see Sersic (2002).
A. Insolia