252
view. Firstly, the Tribunal rejected Slovenia’s claim to a portion of the continental
shelf in the proposed “high seas corridor” (which would have justified an analysis
of the principles applicable to the delimitation of the continental shelf) by simply
noting that, as a consequence of its determinations in respect of the boundary in the
territorial sea and the size and regime of the Junction Area, “no question of continental shelf delimitation” arose.
136
From this point of view, therefore, the Tribunal’s
reference to the principles of continental shelf and EEZ delimitation remains
unexplained.
Secondly, notwithstanding its express reference to the three-stage approach for
defining a single equidistance line described by the ICJ in Romania v. Ukraine, the
Tribunal ultimately adopted the two-stage method flowing from a proper construction of Article 15 UNCLOS.
137
Therefore, that reference is irrelevant for the purpose
of identifying the method actually used by the Tribunal.
Thirdly, the Tribunal, after drawing a provisional equidistance line, and having
begun to consider the special circumstances invoked by Slovenia, made extensive
reference to the North Sea Continental Shelf cases in order to hold that “[i]n a
delimitation of the territorial sea, it is necessary to accommodate two fundamental
principles”, namely: (i) the principle of “natural prolongation”
138
and (ii) the principle of abating “the effects of an incidental special feature from which an unjustifiable difference of treatment could result”.
139
With regard to the first principle, the
meaning of the concept of natural prolongation as used in the 1969 judgment makes
it difficult to distinguish it from the notion of continental shelf.
140
Even so, the
Tribunal specified that it is applicable also to the delimitation of the territorial sea.
It transformed natural prolongation, understood in its negative sense (i.e., “nonencroachment” or “non-cut off”), from an equitable principle applicable to the
delimitation of the continental shelf into a fundamental principle of the law of maritime delimitation, and a corollary of the key principle that “the land dominates the
sea”. As for the second principle, it has been observed that “this has not been recognized as a fundamental principle applicable to the delimitation of maritime
boundaries”.
141
Indeed, when the Court spoke of the need to “abat[e] the effects of
an incidental special feature from which an unjustifiable difference of treatment
could result”, which could not in any case amount to a judicial refashioning of
nature, it had in mind the specific geographical situation of the North Sea, where
136 Croatia/Slovenia, para. 1103.
137 This point has already been made by Lando (2017b). For a discussion of the law applicable to
the delimitation of the territorial sea, and related case law, see Lando (2017a). See also ICJ,
Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Judgment, 2 February 2018, para. 98.
138 Croatia/Slovenia, para. 1008, where Tribunal referred to ICJ, North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment,
20 February 1969, paras 101 and 85. The Tribunal expressly quoted from para. 101(c)(1) of the
1969 Judgment.
139 Croatia/Slovenia, para. 1009.
140 Crawford (2012), pp. 291–292.
141 Oude Elferink (2017).
A. Insolia
view. Firstly, the Tribunal rejected Slovenia’s claim to a portion of the continental
shelf in the proposed “high seas corridor” (which would have justified an analysis
of the principles applicable to the delimitation of the continental shelf) by simply
noting that, as a consequence of its determinations in respect of the boundary in the
territorial sea and the size and regime of the Junction Area, “no question of continental shelf delimitation” arose.
136
From this point of view, therefore, the Tribunal’s
reference to the principles of continental shelf and EEZ delimitation remains
unexplained.
Secondly, notwithstanding its express reference to the three-stage approach for
defining a single equidistance line described by the ICJ in Romania v. Ukraine, the
Tribunal ultimately adopted the two-stage method flowing from a proper construction of Article 15 UNCLOS.
137
Therefore, that reference is irrelevant for the purpose
of identifying the method actually used by the Tribunal.
Thirdly, the Tribunal, after drawing a provisional equidistance line, and having
begun to consider the special circumstances invoked by Slovenia, made extensive
reference to the North Sea Continental Shelf cases in order to hold that “[i]n a
delimitation of the territorial sea, it is necessary to accommodate two fundamental
principles”, namely: (i) the principle of “natural prolongation”
138
and (ii) the principle of abating “the effects of an incidental special feature from which an unjustifiable difference of treatment could result”.
139
With regard to the first principle, the
meaning of the concept of natural prolongation as used in the 1969 judgment makes
it difficult to distinguish it from the notion of continental shelf.
140
Even so, the
Tribunal specified that it is applicable also to the delimitation of the territorial sea.
It transformed natural prolongation, understood in its negative sense (i.e., “nonencroachment” or “non-cut off”), from an equitable principle applicable to the
delimitation of the continental shelf into a fundamental principle of the law of maritime delimitation, and a corollary of the key principle that “the land dominates the
sea”. As for the second principle, it has been observed that “this has not been recognized as a fundamental principle applicable to the delimitation of maritime
boundaries”.
141
Indeed, when the Court spoke of the need to “abat[e] the effects of
an incidental special feature from which an unjustifiable difference of treatment
could result”, which could not in any case amount to a judicial refashioning of
nature, it had in mind the specific geographical situation of the North Sea, where
136 Croatia/Slovenia, para. 1103.
137 This point has already been made by Lando (2017b). For a discussion of the law applicable to
the delimitation of the territorial sea, and related case law, see Lando (2017a). See also ICJ,
Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
Judgment, 2 February 2018, para. 98.
138 Croatia/Slovenia, para. 1008, where Tribunal referred to ICJ, North Sea Continental Shelf Cases
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment,
20 February 1969, paras 101 and 85. The Tribunal expressly quoted from para. 101(c)(1) of the
1969 Judgment.
139 Croatia/Slovenia, para. 1009.
140 Crawford (2012), pp. 291–292.
141 Oude Elferink (2017).
A. Insolia