262
on it by Article 4(1)(a) of the Arbitration Agreement in respect of the law applicable
to the delimitation of the maritime boundary between Croatia and Slovenia.
Finally, the chapter has reconstructed the special legal regime that the Arbitral
Tribunal considered appropriate in order to satisfy Slovenia’s claim to a “junction”
to the high seas and, at the same time, Croatia’s interests in maintaining its territorial integrity. The regime of the Junction Area arguably fulfills that purpose, and is
one of the strong points of the Final Award.
It is probably no coincidence that the Croatian Prime Minister recently declared
that Croatia finds 90% of the Final Award acceptable, even though, for well-known
reasons, it does not intend to enforce it, considering it non-binding and invalid. It is
the opinion of this writer that the Final Award should form the basis of any future
negotiations between the two States. Paradoxically, the section of the Final Award
that presents most problems in terms of implementation is the one concerning the
maritime area with the smallest size, i.e., the Bay of Piran. Again, it seems no coincidence that all of the incidents reported in the past few months occurred there,
leading to the infringement procedure initiated by Slovenia against Croatia under
Article 259 TFEU. The European Commission’s decision not to deliver any reasoned opinion within the statutory 3-month deadline did not deter Slovenia from
bringing proceedings before the ECJ.
After over 20 years of aborted attempts at bilateral resolution and mediation,
after an arbitration that, including a scandal, lasted more than 5 years, it seems
unlikely that the involvement of yet another third party may really contribute to the
dénouement of a story that is dangerously becoming like a soap opera. In this regard,
the fact that the European Commission—once the main supporter of the arbitration
and, following the adoption of the Final Award, among the first institutions to
express itself in favour of its implementation—chose not to get involved in this new
phase of the dispute, speaks for itself.
It is up to the two States to resolve their differences and, negotiating in good
faith, reach a solution that, without necessarily departing from the content of the
Final Award, may address the issues that have so far prevented its implementation.
References
Aloupi N (2017) Affaire de l’arbitrage sur le fondement de l’accord d’arbitrage signé le 4
novembre 2009 entre le gouvernement de la République de la Croatie et le gouvernement
de la République de Slovénie, Croatie/Slovenie, sentence sur le fond du 29 juin 2017. Revue
générale de droit international public 17(4):1125–1130
Antunes NM, Becker-Weinberg V (2018) Entitlement to maritime zones and their delimitation – in
the doldrums of uncertainty and unpredictability. In: Oude Elferink AG, Henriksen T, Veierud
Busch S (eds) Maritime boundary delimitation: the case law – is it consistent or predictable?
Cambridge University Press, Cambridge, pp 62–91
Arnaut D (2004) Stormy waters on the way to the high seas: the case of the territorial sea delimitation between Croatia and Slovenia. In: Caron DD, Scheiber HN (eds) Bringing new law to
ocean waters. Martinus Nijhoff, Leiden, pp 427–465
A. Insolia
on it by Article 4(1)(a) of the Arbitration Agreement in respect of the law applicable
to the delimitation of the maritime boundary between Croatia and Slovenia.
Finally, the chapter has reconstructed the special legal regime that the Arbitral
Tribunal considered appropriate in order to satisfy Slovenia’s claim to a “junction”
to the high seas and, at the same time, Croatia’s interests in maintaining its territorial integrity. The regime of the Junction Area arguably fulfills that purpose, and is
one of the strong points of the Final Award.
It is probably no coincidence that the Croatian Prime Minister recently declared
that Croatia finds 90% of the Final Award acceptable, even though, for well-known
reasons, it does not intend to enforce it, considering it non-binding and invalid. It is
the opinion of this writer that the Final Award should form the basis of any future
negotiations between the two States. Paradoxically, the section of the Final Award
that presents most problems in terms of implementation is the one concerning the
maritime area with the smallest size, i.e., the Bay of Piran. Again, it seems no coincidence that all of the incidents reported in the past few months occurred there,
leading to the infringement procedure initiated by Slovenia against Croatia under
Article 259 TFEU. The European Commission’s decision not to deliver any reasoned opinion within the statutory 3-month deadline did not deter Slovenia from
bringing proceedings before the ECJ.
After over 20 years of aborted attempts at bilateral resolution and mediation,
after an arbitration that, including a scandal, lasted more than 5 years, it seems
unlikely that the involvement of yet another third party may really contribute to the
dénouement of a story that is dangerously becoming like a soap opera. In this regard,
the fact that the European Commission—once the main supporter of the arbitration
and, following the adoption of the Final Award, among the first institutions to
express itself in favour of its implementation—chose not to get involved in this new
phase of the dispute, speaks for itself.
It is up to the two States to resolve their differences and, negotiating in good
faith, reach a solution that, without necessarily departing from the content of the
Final Award, may address the issues that have so far prevented its implementation.
References
Aloupi N (2017) Affaire de l’arbitrage sur le fondement de l’accord d’arbitrage signé le 4
novembre 2009 entre le gouvernement de la République de la Croatie et le gouvernement
de la République de Slovénie, Croatie/Slovenie, sentence sur le fond du 29 juin 2017. Revue
générale de droit international public 17(4):1125–1130
Antunes NM, Becker-Weinberg V (2018) Entitlement to maritime zones and their delimitation – in
the doldrums of uncertainty and unpredictability. In: Oude Elferink AG, Henriksen T, Veierud
Busch S (eds) Maritime boundary delimitation: the case law – is it consistent or predictable?
Cambridge University Press, Cambridge, pp 62–91
Arnaut D (2004) Stormy waters on the way to the high seas: the case of the territorial sea delimitation between Croatia and Slovenia. In: Caron DD, Scheiber HN (eds) Bringing new law to
ocean waters. Martinus Nijhoff, Leiden, pp 427–465
A. Insolia