CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ After failure of the Drnovšek-Račan draft agreement it became clear that the chances for a bilateral compromise establishing the borders on land and on the sea between the Republic of Slovenia and the Republic of Croatia to be achieved via negotiations were meagre, if any at all, also due to radicalised public opinion on both sides. After 2001, a bilateral agreement was out of reach. Several border incidents took place, mainly at sea in Piran Bay, where, as protested by Slovenia, Croatia endeavoured to enforce its view that the maritime boundary in the bay should follow the equidistance line. Actually, after 2001 Croatia’s position was that the dispute cannot be resolved bilaterally but should be referred to international adjudication, to arbitration, to the ITLOS or to the ICJ. The road to Arbitration Agreement After 2008, Croatia’s membership in the EU became a reality blocked only by Slovenia’s insistence that the border dispute be resolved in advance before Slovenia’s consent to conclusion of all chapters in Croatia – EU membership negotiations. Thus, both parties were exposed to the EU’s “advices” (indeed more than “advices”) to reach a compromise agreement to resolve their border dispute. The EU got intensively involved with its conciliation efforts, which helped the parties to achieve an agreement at least on the modalities of future endeavours to resolve the dispute. Let it be mentioned here, that already in summer 2007 the parties were close to agreeing that the border dispute be referred to the ICJ, but they finally did not come to an agreement. Having in mind the difficulties and problems which later burdened the arbitration, it would have been maybe better had the parties concluded to refer the dispute to the ICJ, particularly so since in the case of judgements of the ICJ the UN Security Council might be involved in securing the fulfilment of the judgement. 4 After intense negotiations in which the EU Commissioner Oli Ren actively took part, several drafts of an agreement on the border dispute settlement were exchanged and discussed. Already the first draft provided by Commissioner Rehn in its draft Article 3, stipulated the two main tasks of the Arbitral Tribunal were: to determine the course of the maritime and land boundary between parties and the “regime” for the use of the relevant maritime areas and Slovenia’s “contact to the high seas”. For establishing the later (the “regime” and the “contact”) in draft Article 4 as the “applicable law” the “international law, equity and the principle of good neighbourly relations” were to be applied in order to achieve a fair and just result. It is pretty clear from this first draft, which was submitted to the parties by Commissioner Rehn, that in the EU environment they were aware of Slovenia’s unique geographic situation, as well as of historic facts, which both required serious considerations. This case of the maritime border between Slovenia and Croatia thus should not be dealt with by simple application of rules of international law of the sea only, but also “equity and the principle of good neighbourly relations” were to be applied. Later in the next drafts of the Arbitration Agreement the term Slovenia’s “contact” to the high seas was replaced by Slovenia’s “junction” to the high seas which was, though reluctantly, accepted also by Croatia in the final version of the draft Arbitration Agreement on the dispute settlement. It seems that the “vital interests” of the parties which, as required in the preamble of the draft Arbitration Agreement, should be reflected in the settlement of the dispute, were 4 According to Art. 94/2 of the Charter.

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