250
as well as with respect to the relationship between the equidistance rule and the
existence of historic titles or special circumstances.
124
It should be recalled, moreover, that by reason of their different positions on the delimitation of the Bay, the
Parties widely disagreed on the course of the maritime boundary in the territorial
sea. This was due, among other things, to the fact that the “junction to the high seas”
claimed by Slovenia was to be understood, according to that State, “as a territorial
(direct geographical) contact of its territorial sea with the high seas”.
125
As a consequence, Slovenia requested that the Tribunal decide that question in tandem with the
issues under Article 3(1) of the Arbitration Agreement, arguing that “the maritime
boundary ‘cannot be divorced from’ the question of the junction, as the two are
‘inextricably linked’”.
126
Slovenia’s argument—which relied on an interpretation of
Articles 3(1) and 4 of the Arbitration Agreement in light of the notion of “vital interests” of the Parties found in the Preamble to the Agreement—was rejected by the
Tribunal, who simply noted that the wording of Article 3(1), together with the applicable law clause of Article 4, required it to consider separately each of the issues
submitted to it. In the Tribunal’s view, this did not “preclude the achievement of a
‘coherent and workable result’, which Slovenia rightly demands”.
127
After noting that the Parties agreed on the applicability of Article 15 UNCLOS
to the determination of the territorial sea, the Tribunal established an equivalence
between that rule, commonly known as the “equidistance/special circumstances”
rule, and the three-stage approach applicable to the delimitation of the exclusive
economic zone (EEZ) and/or the continental shelf,
128
as interpreted in the case law
of the ICJ.
129
before and after independence, extended “well south of Croatia’s equidistance line”, as well as the
exercise of police jurisdiction in the same area (see Croatia/Slovenia, para. 955–959). In addition,
it claimed various special circumstances justifying a departure from equidistance: the “squeezing
effect”, coastal concavity, and the “cut-off effect”, the distinction between them being more a matter of the degree of “adjustment [required…] in order to produce an equitable result”—than of kind
(ibidem, para. 977–978). Finally, it also claimed that security and navigational interests potentially
qualified as special circumstances relevant for delimitation under Art. 15. Croatia noted (ibidem,
para. 962) that Slovenia had failed to produce evidence of its alledged historic title, and that the
special circumstances it invoked were either of no legal significance (i.e., the “squeezing effect”)
or irrelevant for the delimitation of the territorial sea (i.e., coastal concavity and the “cut-off
effect”).
124 Ibidem, paras 954 (Slovenia), 974 and 962 (Croatia).
125 Ibidem, para. 921.
126 Ibidem, para. 923. For Slovenia this approach was warranted by the need “to achieve a coherent
and workable result”.
127 Ibidem, para. 947.
128 Both Arts. 74 and 83 UNCLOS provide that “The delimitation of the [exclusive economic zone
/ continental shelf] shall be effected by agreement on the basis of international law […] in order to
achieve an equitable solution”.
129 Croatia/Slovenia, para. 999, referring to ICJ, Maritime Dispute (Peru v. Chile), Judgment, 27
January 2014, para. 180, where the Court quoted from ICJ, Maritime Delimitation in the Black Sea
(Romania v. Ukraine), Judgment, 3 February 2009, paras 115–122—where the Court first set out
this methodology—and ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment,
19 November 2012, paras 190–193.
A. Insolia
as well as with respect to the relationship between the equidistance rule and the
existence of historic titles or special circumstances.
124
It should be recalled, moreover, that by reason of their different positions on the delimitation of the Bay, the
Parties widely disagreed on the course of the maritime boundary in the territorial
sea. This was due, among other things, to the fact that the “junction to the high seas”
claimed by Slovenia was to be understood, according to that State, “as a territorial
(direct geographical) contact of its territorial sea with the high seas”.
125
As a consequence, Slovenia requested that the Tribunal decide that question in tandem with the
issues under Article 3(1) of the Arbitration Agreement, arguing that “the maritime
boundary ‘cannot be divorced from’ the question of the junction, as the two are
‘inextricably linked’”.
126
Slovenia’s argument—which relied on an interpretation of
Articles 3(1) and 4 of the Arbitration Agreement in light of the notion of “vital interests” of the Parties found in the Preamble to the Agreement—was rejected by the
Tribunal, who simply noted that the wording of Article 3(1), together with the applicable law clause of Article 4, required it to consider separately each of the issues
submitted to it. In the Tribunal’s view, this did not “preclude the achievement of a
‘coherent and workable result’, which Slovenia rightly demands”.
127
After noting that the Parties agreed on the applicability of Article 15 UNCLOS
to the determination of the territorial sea, the Tribunal established an equivalence
between that rule, commonly known as the “equidistance/special circumstances”
rule, and the three-stage approach applicable to the delimitation of the exclusive
economic zone (EEZ) and/or the continental shelf,
128
as interpreted in the case law
of the ICJ.
129
before and after independence, extended “well south of Croatia’s equidistance line”, as well as the
exercise of police jurisdiction in the same area (see Croatia/Slovenia, para. 955–959). In addition,
it claimed various special circumstances justifying a departure from equidistance: the “squeezing
effect”, coastal concavity, and the “cut-off effect”, the distinction between them being more a matter of the degree of “adjustment [required…] in order to produce an equitable result”—than of kind
(ibidem, para. 977–978). Finally, it also claimed that security and navigational interests potentially
qualified as special circumstances relevant for delimitation under Art. 15. Croatia noted (ibidem,
para. 962) that Slovenia had failed to produce evidence of its alledged historic title, and that the
special circumstances it invoked were either of no legal significance (i.e., the “squeezing effect”)
or irrelevant for the delimitation of the territorial sea (i.e., coastal concavity and the “cut-off
effect”).
124 Ibidem, paras 954 (Slovenia), 974 and 962 (Croatia).
125 Ibidem, para. 921.
126 Ibidem, para. 923. For Slovenia this approach was warranted by the need “to achieve a coherent
and workable result”.
127 Ibidem, para. 947.
128 Both Arts. 74 and 83 UNCLOS provide that “The delimitation of the [exclusive economic zone
/ continental shelf] shall be effected by agreement on the basis of international law […] in order to
achieve an equitable solution”.
129 Croatia/Slovenia, para. 999, referring to ICJ, Maritime Dispute (Peru v. Chile), Judgment, 27
January 2014, para. 180, where the Court quoted from ICJ, Maritime Delimitation in the Black Sea
(Romania v. Ukraine), Judgment, 3 February 2009, paras 115–122—where the Court first set out
this methodology—and ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment,
19 November 2012, paras 190–193.
A. Insolia