253
application of the equidistance method “would deny to one of these States treatment
equal or comparable to that given the other two […] merely because in the one case
the coastline is roughly convex in form and in the other it is markedly concave,
although those coastlines are comparable in length”.
142
The rest of the Court’s analysis proceeded from this general principle, identifying various factors, or relevant
circumstances, to be taken into account by the Parties during their negotiations,
including the element of “a reasonable degree of proportionality”.
143
Now, while the
principle has been subsequently employed to diminish the effects of different “incidental special features”,
144
its general wording seems to suggest that it may be identified with the very notion of relevant circumstances, or rather, with the task that the
court or tribunal has to perform in the second stage of the delimitation process. The
paragraph of the 1969 judgment where it is set out, its connection with the principle
that in a delimitation exercise “[t]here never can be any question of completely
refashioning nature”, and even the way it was understood by the ICJ in Cameroun v.
Nigeria seem to suggest this as well.
145
And it was in this sense, in my opinion, that
the Arbitral Tribunal understood it.
146
Let us turn now to the question of whether the Tribunal’s extensive reference to
the North Sea Continental Shelf cases was appropriate. In that judgment, the Court,
when assessing the “cut-off” effect produced by the use of equidistance in the case
of concave or recessive coasts, noted that “[i]t goes without saying that on these
types of coasts the equidistance method produces exactly similar effects in the
delimitation of the lateral boundaries of the territorial sea of the States concerned.
However, owing to the very close proximity of such waters to the coasts concerned,
these effects are much less marked and may be very slight”.
147
To my mind, the
problem with the Tribunal’s reference is due, in the first place, to the arguments and
claims made by the Parties and, in the second place, to the apparent similarity, in
terms of geographical situation, between the areas involved in the two cases. While
the boundary line proposed by Croatia “[did] not take account of the special circumstances arising from the closed-in geographical configuration of the area”, the one
proposed by Slovenia “project[ed] the Slovenian territorial sea at such an angle that
it [could not] properly be regarded as a part of the territorial sea generated by the
Slovenian coast, rather than by the Croatian coastline in front of which it [run]”.
148
In this sense, the “non-encroachment” or “non-cut off” principle led the Tribunal to
142 North Sea Continental Shelf, para. 91.
143 Ibidem, paras 93–98.
144 See Crawford (2012), pp. 289–290.
145 Cameroun v. Nigeria, paras 293–295.
146 See Croatia/Slovenia, paras 1008–1010.
147 North Sea Continental Shelf, para. 8. On the contrary, these “distorting effects” produce “their
maximum effect in the localities where the main continental shelf areas lie further out” (ibidem,
para. 59).
148 Croatia/Slovenia, para. 1013.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
application of the equidistance method “would deny to one of these States treatment
equal or comparable to that given the other two […] merely because in the one case
the coastline is roughly convex in form and in the other it is markedly concave,
although those coastlines are comparable in length”.
142
The rest of the Court’s analysis proceeded from this general principle, identifying various factors, or relevant
circumstances, to be taken into account by the Parties during their negotiations,
including the element of “a reasonable degree of proportionality”.
143
Now, while the
principle has been subsequently employed to diminish the effects of different “incidental special features”,
144
its general wording seems to suggest that it may be identified with the very notion of relevant circumstances, or rather, with the task that the
court or tribunal has to perform in the second stage of the delimitation process. The
paragraph of the 1969 judgment where it is set out, its connection with the principle
that in a delimitation exercise “[t]here never can be any question of completely
refashioning nature”, and even the way it was understood by the ICJ in Cameroun v.
Nigeria seem to suggest this as well.
145
And it was in this sense, in my opinion, that
the Arbitral Tribunal understood it.
146
Let us turn now to the question of whether the Tribunal’s extensive reference to
the North Sea Continental Shelf cases was appropriate. In that judgment, the Court,
when assessing the “cut-off” effect produced by the use of equidistance in the case
of concave or recessive coasts, noted that “[i]t goes without saying that on these
types of coasts the equidistance method produces exactly similar effects in the
delimitation of the lateral boundaries of the territorial sea of the States concerned.
However, owing to the very close proximity of such waters to the coasts concerned,
these effects are much less marked and may be very slight”.
147
To my mind, the
problem with the Tribunal’s reference is due, in the first place, to the arguments and
claims made by the Parties and, in the second place, to the apparent similarity, in
terms of geographical situation, between the areas involved in the two cases. While
the boundary line proposed by Croatia “[did] not take account of the special circumstances arising from the closed-in geographical configuration of the area”, the one
proposed by Slovenia “project[ed] the Slovenian territorial sea at such an angle that
it [could not] properly be regarded as a part of the territorial sea generated by the
Slovenian coast, rather than by the Croatian coastline in front of which it [run]”.
148
In this sense, the “non-encroachment” or “non-cut off” principle led the Tribunal to
142 North Sea Continental Shelf, para. 91.
143 Ibidem, paras 93–98.
144 See Crawford (2012), pp. 289–290.
145 Cameroun v. Nigeria, paras 293–295.
146 See Croatia/Slovenia, paras 1008–1010.
147 North Sea Continental Shelf, para. 8. On the contrary, these “distorting effects” produce “their
maximum effect in the localities where the main continental shelf areas lie further out” (ibidem,
para. 59).
148 Croatia/Slovenia, para. 1013.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award