261
area.
192
Perhaps, the latter may be better described as a strictly functional regime
imposed on a maritime area that can still be qualified as Croatian territorial sea.
6 Concluding Observations
This chapter has examined the maritime aspects of the Croatia/Slovenia Final
Award of 29 June 2017, in particular the maritime delimitation issues submitted to
the Arbitral Tribunal. It has discussed the Tribunal’s determinations in respect of the
status and delimitation of the waters within the Bay of Piran, and the regime for the
use of the Bay. Uncertainty as to the international law applicable to multinational
bays has characterized the codification of international law since the First Conference
of 1930. This, however, has not prevented the emergence of general principles governing the possibility for coastal States to include a multinational bay in their internal waters, which seems to depend on the existence of an agreement between the
coastal States in respect of the legal regime of the waters within and outside the bay.
The Tribunal’s decision on this issue, which fails to provide sufficient reasons and
explanation, may have been influenced by the strictly worded provision on the “critical date” contained in Article 5 of the Arbitration Agreement. This provision seems
to have negatively influenced also the delimitation within the Bay of Piran, in
respect of which the Tribunal decided to apply the principle of uti possidetis.
Perhaps the establishment of a condominium regime might have better served the
purpose of the Tribunal—not only because that regime was accepted by the ICJ in
the Gulf of Fonseca case despite the absence of an agreement between the Parties,
but also, and most importantly, because it tends to promote cooperation between
coastal States. On the contrary, in this part of its Award the Tribunal did not place
any emphasis on cooperation, an aspect which, in the opinion of this writer, appears
to be crucial, and which is expressly envisaged as a legal obligation for the coastal
States of a semi-enclosed sea like the Adriatic.
The chapter has then looked at the method chosen by the Tribunal to delimit the
territorial sea between Croatia and Slovenia in the Gulf of Trieste, as well as its
application in the light of the real, or supposed, circumstances of the case. Although
some doubts remain with regard to both aspects, the solution reached by the Tribunal
takes into due account Slovenia’s geographical situation and, while imposing a
minor limitation on the projection of the Croatian coast at Cape Savudrija, it substantially mitigate its effects on Slovenia’s territorial sea. This is not sufficient, however, to remove all doubts about whether the Tribunal respected the limits imposed
192 And it seems also inappropriate to equate it with the regime of reduced EEZ zones or to classify
it as a sui generis zone, such as those established by various coastal States, mainly in the
Mediterranean Sea. On these zones see, respectively, Del Vecchio Capotosti (2008), and Cataldi
and Andreone (2014). Conversely, it would appear all the more inappropriate to define it as an
international servitude imposed on a portion of Croatia territorial sea.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
area.
192
Perhaps, the latter may be better described as a strictly functional regime
imposed on a maritime area that can still be qualified as Croatian territorial sea.
6 Concluding Observations
This chapter has examined the maritime aspects of the Croatia/Slovenia Final
Award of 29 June 2017, in particular the maritime delimitation issues submitted to
the Arbitral Tribunal. It has discussed the Tribunal’s determinations in respect of the
status and delimitation of the waters within the Bay of Piran, and the regime for the
use of the Bay. Uncertainty as to the international law applicable to multinational
bays has characterized the codification of international law since the First Conference
of 1930. This, however, has not prevented the emergence of general principles governing the possibility for coastal States to include a multinational bay in their internal waters, which seems to depend on the existence of an agreement between the
coastal States in respect of the legal regime of the waters within and outside the bay.
The Tribunal’s decision on this issue, which fails to provide sufficient reasons and
explanation, may have been influenced by the strictly worded provision on the “critical date” contained in Article 5 of the Arbitration Agreement. This provision seems
to have negatively influenced also the delimitation within the Bay of Piran, in
respect of which the Tribunal decided to apply the principle of uti possidetis.
Perhaps the establishment of a condominium regime might have better served the
purpose of the Tribunal—not only because that regime was accepted by the ICJ in
the Gulf of Fonseca case despite the absence of an agreement between the Parties,
but also, and most importantly, because it tends to promote cooperation between
coastal States. On the contrary, in this part of its Award the Tribunal did not place
any emphasis on cooperation, an aspect which, in the opinion of this writer, appears
to be crucial, and which is expressly envisaged as a legal obligation for the coastal
States of a semi-enclosed sea like the Adriatic.
The chapter has then looked at the method chosen by the Tribunal to delimit the
territorial sea between Croatia and Slovenia in the Gulf of Trieste, as well as its
application in the light of the real, or supposed, circumstances of the case. Although
some doubts remain with regard to both aspects, the solution reached by the Tribunal
takes into due account Slovenia’s geographical situation and, while imposing a
minor limitation on the projection of the Croatian coast at Cape Savudrija, it substantially mitigate its effects on Slovenia’s territorial sea. This is not sufficient, however, to remove all doubts about whether the Tribunal respected the limits imposed
192 And it seems also inappropriate to equate it with the regime of reduced EEZ zones or to classify
it as a sui generis zone, such as those established by various coastal States, mainly in the
Mediterranean Sea. On these zones see, respectively, Del Vecchio Capotosti (2008), and Cataldi
and Andreone (2014). Conversely, it would appear all the more inappropriate to define it as an
international servitude imposed on a portion of Croatia territorial sea.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award