255
As has been observed, that condition, far from being a consequence of the application of the equidistance method, is due to the relatively small size of the Gulf of
Trieste, which puts Slovenia “in a different geographical situation than Croatia,
which faces the Adriatic proper beyond the Gulf of Trieste”.
155
Indeed, the Tribunal
itself stated that Slovenia had no “‘entitlements’ towards the south south-west”.
156
This suggests that, given the “north-facing” orientation of both the Slovenian coastline and the short stretch of Croatian coast west of Cape Savudrija, which provided
the basepoints controlling the equidistance line, no cut-off effect, in the strict sense
of the term, was produced on Slovenia’s territorial sea—which seems, rather, to be
affected by the joint effect of the line drawn by the Osimo Treaty and the special
geographical circumstances of the Gulf of Trieste.
157
Nevertheless, a consideration
of the overall geography of the Northern Adriatic Sea required, in my opinion, that
the equidistance line be adjusted as proposed by the Arbitral Tribunal.
158
In this
light, some reservations arise as to the Tribunal’s decision to take into consideration
a stretch of coast that, as was the case with the Croatian coast south-west of Cape
Savudrija, did not provide any basepoints for constructing the equidistance line. All
the same, it should be stressed that this was the only way for the Tribunal to fully
take account of Slovenia’s unique geographical situation.
In conclusion, although the Arbitral Tribunal seems to have reached a balanced
result, some reservations can be made about the method employed to reach it, and a
doubt arises as to whether the Tribunal exceeded the limits imposed by Articles 3(1)
(a) and 4(1)(a) of the Arbitration Agreement with regard to the law applicable to the
delimitation of the territorial sea.
5 Slovenia’s Junction to the High Seas
Among the issues submitted to the Arbitral Tribunal, the question of Slovenia’s
Junction to the High Seas promised to be the most difficult one to resolve. Indeed,
according to Slovenia’s stated position, the junction represented the “vital interests”
155 Oude Elferink (2017).
156 Croatia/Slovenia, para. 1006.
157 Nevertheless, it has been noted that the notion of coastal projection “points to ‘perpendicular
projection’, whereas coasts generate maritime entitlements omni-directionally”, see Antunes and
Becker-Weinberg (2018), p. 66. In this sense, the adoption of a strict equidistance line may be said
to emphasize, at least in part, the situation that Slovenia derives from the natural and political
geography of the northeastern coast of the Adriatic Sea.
158 Although never expressly recognized by the Tribunal, the fact that Slovenia, due to its geographical situation, can be classified as “geographically disadvantaged” under Art. 70 UNCLOS
seems undeniable. That does not however amount to a special circumstance for the purposes of
delimiting the territorial sea. The notion of “boxed-in condition” coined by the Tribunal, even
though constantly made to fall within the more established notion of “cut-off effect”, seems to
transpose the concept of “geographically disadvantaged State” in the context of boundary
delimitation.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
As has been observed, that condition, far from being a consequence of the application of the equidistance method, is due to the relatively small size of the Gulf of
Trieste, which puts Slovenia “in a different geographical situation than Croatia,
which faces the Adriatic proper beyond the Gulf of Trieste”.
155
Indeed, the Tribunal
itself stated that Slovenia had no “‘entitlements’ towards the south south-west”.
156
This suggests that, given the “north-facing” orientation of both the Slovenian coastline and the short stretch of Croatian coast west of Cape Savudrija, which provided
the basepoints controlling the equidistance line, no cut-off effect, in the strict sense
of the term, was produced on Slovenia’s territorial sea—which seems, rather, to be
affected by the joint effect of the line drawn by the Osimo Treaty and the special
geographical circumstances of the Gulf of Trieste.
157
Nevertheless, a consideration
of the overall geography of the Northern Adriatic Sea required, in my opinion, that
the equidistance line be adjusted as proposed by the Arbitral Tribunal.
158
In this
light, some reservations arise as to the Tribunal’s decision to take into consideration
a stretch of coast that, as was the case with the Croatian coast south-west of Cape
Savudrija, did not provide any basepoints for constructing the equidistance line. All
the same, it should be stressed that this was the only way for the Tribunal to fully
take account of Slovenia’s unique geographical situation.
In conclusion, although the Arbitral Tribunal seems to have reached a balanced
result, some reservations can be made about the method employed to reach it, and a
doubt arises as to whether the Tribunal exceeded the limits imposed by Articles 3(1)
(a) and 4(1)(a) of the Arbitration Agreement with regard to the law applicable to the
delimitation of the territorial sea.
5 Slovenia’s Junction to the High Seas
Among the issues submitted to the Arbitral Tribunal, the question of Slovenia’s
Junction to the High Seas promised to be the most difficult one to resolve. Indeed,
according to Slovenia’s stated position, the junction represented the “vital interests”
155 Oude Elferink (2017).
156 Croatia/Slovenia, para. 1006.
157 Nevertheless, it has been noted that the notion of coastal projection “points to ‘perpendicular
projection’, whereas coasts generate maritime entitlements omni-directionally”, see Antunes and
Becker-Weinberg (2018), p. 66. In this sense, the adoption of a strict equidistance line may be said
to emphasize, at least in part, the situation that Slovenia derives from the natural and political
geography of the northeastern coast of the Adriatic Sea.
158 Although never expressly recognized by the Tribunal, the fact that Slovenia, due to its geographical situation, can be classified as “geographically disadvantaged” under Art. 70 UNCLOS
seems undeniable. That does not however amount to a special circumstance for the purposes of
delimiting the territorial sea. The notion of “boxed-in condition” coined by the Tribunal, even
though constantly made to fall within the more established notion of “cut-off effect”, seems to
transpose the concept of “geographically disadvantaged State” in the context of boundary
delimitation.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award