251
Concluding that “[i]n relation to the delimitation both of the territorial sea and of
the maritime zones beyond the territorial sea, international law thus calls for the
application of an equidistance line, unless another line is required by special circumstances”, the Tribunal took care to indicate some of the reasons why that method
should be used in both cases, regardless of the differing legal nature and regime of
those areas.
130
Having thus identified the applicable method, the Tribunal proceeded
to draw a provisional equidistance line which, starting at the point of intersection
between the boundary within the Bay of Piran and the closing line of the Bay,
131
extended out to the intersection with the maritime boundary between Italy and
Yugoslavia established by the Osimo Treaty of 1975, at a point located approximately midway between points T3 and T4 on the Osimo Treaty line.
132
It has been observed that, by equating the method used for delimiting the territorial sea with that applicable to the delimitation of the EEZ and continental shelf, the
Arbitral Tribunal wrongly suggested that the equidistance/special circumstances
rule and the two-stage approach it implies are generally applicable.
133
For sure, the
Tribunal started from the assumption that there is only one method for maritime
delimitation. That was also the view of its President, Judge Guillaume, President of
the ICJ at the time of the Court’s ruling in Qatar v. Bahrain.
134
It is my impression, however, that the Tribunal was not mainly concerned to
assert the general applicability of this approach—if anything, that was the état
d’esprit informing its analysis. Rather, through constant reference to the case law on
EEZ and coastal shelf delimitation, it aimed to reserve to itself slightly wider discretion when identifying and examining any special circumstances in the second stage
of the delimitation process.
135
Several considerations would seem to confirm this
130 Croatia/Slovenia, para. 1000. The Tribunal spoke of a “convergence between the principles
applicable to the territorial sea and to other maritime zones”, which was “further evidenced by the
fact that a maritime boundary may separate adjacent maritime zones of different juridical character”. In this regard, the Tribunal referred to Peru v. Chile, paras 178–183, and ICJ, Land and
Maritime Boundary between Cameroun and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, 10 October 2002, para. 288.
131 This point—it must be stressed—is not equidistant from the Parties’ relevant coasts.
132 The provisional equidistance line drawn by the Tribunal, although certainly more favourable to
Slovenia than the equidistance line proposed by Croatia, allocates to Slovenia way less than what
it requested, and does not allow its territorial sea to extend at any point up to the 12 nm limit established under international law. The three lines mentioned above are shown on Map IV at page 317
of the Final Award.
133 Lando (2017b), p. 1187.
134 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Merits, Judgment, 16 March 2001, paras 230–231. See also Judge Guillaume’s speech
to the 6th Committee of the UNGA of 31 October 2001, pp. 9–10, and more recently Guillaume
(2011), pp. 11–12. In this sense, see also Papanicolopulu (2005), p. 50 ff.
135 In this sense, the Final Award seems to be part of a recent trend in the case law on the delimitation of the territorial sea to produce—as noted by Vidas (2018), p. 48—“a sort of renvoi effect in
which the method for territorial sea delimitation […], would in turn also become ‘adjusted’ in a
process of judicial ‘unification’” with the judicial development of methodology for delimiting the
EEZ and the continental shelf.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
Concluding that “[i]n relation to the delimitation both of the territorial sea and of
the maritime zones beyond the territorial sea, international law thus calls for the
application of an equidistance line, unless another line is required by special circumstances”, the Tribunal took care to indicate some of the reasons why that method
should be used in both cases, regardless of the differing legal nature and regime of
those areas.
130
Having thus identified the applicable method, the Tribunal proceeded
to draw a provisional equidistance line which, starting at the point of intersection
between the boundary within the Bay of Piran and the closing line of the Bay,
131
extended out to the intersection with the maritime boundary between Italy and
Yugoslavia established by the Osimo Treaty of 1975, at a point located approximately midway between points T3 and T4 on the Osimo Treaty line.
132
It has been observed that, by equating the method used for delimiting the territorial sea with that applicable to the delimitation of the EEZ and continental shelf, the
Arbitral Tribunal wrongly suggested that the equidistance/special circumstances
rule and the two-stage approach it implies are generally applicable.
133
For sure, the
Tribunal started from the assumption that there is only one method for maritime
delimitation. That was also the view of its President, Judge Guillaume, President of
the ICJ at the time of the Court’s ruling in Qatar v. Bahrain.
134
It is my impression, however, that the Tribunal was not mainly concerned to
assert the general applicability of this approach—if anything, that was the état
d’esprit informing its analysis. Rather, through constant reference to the case law on
EEZ and coastal shelf delimitation, it aimed to reserve to itself slightly wider discretion when identifying and examining any special circumstances in the second stage
of the delimitation process.
135
Several considerations would seem to confirm this
130 Croatia/Slovenia, para. 1000. The Tribunal spoke of a “convergence between the principles
applicable to the territorial sea and to other maritime zones”, which was “further evidenced by the
fact that a maritime boundary may separate adjacent maritime zones of different juridical character”. In this regard, the Tribunal referred to Peru v. Chile, paras 178–183, and ICJ, Land and
Maritime Boundary between Cameroun and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, 10 October 2002, para. 288.
131 This point—it must be stressed—is not equidistant from the Parties’ relevant coasts.
132 The provisional equidistance line drawn by the Tribunal, although certainly more favourable to
Slovenia than the equidistance line proposed by Croatia, allocates to Slovenia way less than what
it requested, and does not allow its territorial sea to extend at any point up to the 12 nm limit established under international law. The three lines mentioned above are shown on Map IV at page 317
of the Final Award.
133 Lando (2017b), p. 1187.
134 ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Merits, Judgment, 16 March 2001, paras 230–231. See also Judge Guillaume’s speech
to the 6th Committee of the UNGA of 31 October 2001, pp. 9–10, and more recently Guillaume
(2011), pp. 11–12. In this sense, see also Papanicolopulu (2005), p. 50 ff.
135 In this sense, the Final Award seems to be part of a recent trend in the case law on the delimitation of the territorial sea to produce—as noted by Vidas (2018), p. 48—“a sort of renvoi effect in
which the method for territorial sea delimitation […], would in turn also become ‘adjusted’ in a
process of judicial ‘unification’” with the judicial development of methodology for delimiting the
EEZ and the continental shelf.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award