CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ to invoke Art.9/1 of the Arbitration Agreement which stipulates that “Slovenia shall lift its reservations as regards the opening and closing of negotiation chapters where the obstacle is related to the dispute”. Slovenia has in bona fides fulfilled this important stipulation which is clearly in favour of Croatia. These provisions indicate that the Arbitration Agreement was the result of intense involvement also of the EU. It is a compromise sponsored by the EU to enable Croatia to conclude her EU membership negotiations. Although the EU is not a party of the Arbitration Agreement, it is involved in the conclusion and execution of it, 7 and the stipulations (Art. 9/1 and Art. 13/3) of the agreement nevertheless clearly indicate that also the EU shares political responsibility for compliance of the parties with the Arbitration Agreement’s obligations, including the respect and fulfilment of the award of the Arbitral Tribunal established according to the Arbitration Agreement. It is also not necessary to dwell on the proceedings of the Arbitral Tribunal which started its work in Haag on 13 August 2012 after all necessary preparations within the Permanent Court of Arbitration (PCA) and appointments of arbiters had been made. It is however necessary to mention that on 24 July 2015 Croatia submitted to the Arbitral Tribunal extracts of two contaminating telephone conversations between the “national” arbitrator of Slovenia and one of Slovenia’s agents, an employee of the Ministry of Foreign Affairs. Slovenia’s national arbitrator resigned from the Arbitral Tribunal. However, Croatia notified Slovenia that since material breaches by Slovenia of the Arbitration Agreement had occurred, “Croatia ceases to apply the Arbitration Agreement.” 8 Consequently, Croatia ceased to cooperate with the Arbitral Tribunal in spite of the replacements in the Tribunal’s personnel composition and though the Tribunal in a Partial Award, issued on the 30th of June 2016 determined “that the breaches of the Arbitration Agreement by Slovenia … do not defeat the object and purpose of the Agreement… (and) Croatia was not entitled to terminate the Agreement… The Arbitration Agreement remains in force”. 9 Consequently, the Tribunal continued its work, though without any participation of Croatia, which persistently claimed that for Croatia the work of the Arbitral Tribunal and its decisions (awards) are irrelevant and will have for Croatia no factual nor legal consequences. However, on the 29 th of June 2017, the Arbitral Tribunal pronounced its Final Award, notably without the presence of Croatia. The Task of the Arbitral Tribunal According to the Arbitration Agreement, “The Arbitral Tribunal shall determine a) the course of the maritime and land boundary between the Republic of Croatia and the Republic of Slovenia; b) Slovenia’s junction to the High Seas; c) the regime for the use of the relevant maritime areas.” 10 Croatia and Slovenia agreed on the ca. 91% of the land boundary which the Tribunal took note of and confirmed in its award since the main principle in establishing a state boundary is agreement of the States involved. The remaining part of the land boundary (ca. 9%) were disputed by contradictory claims and proofs by the parties, as was the maritime boundary, i.e. the status of and delimitation in the Bay of Piran, the delimitation of territorial waters, and the “junction” of Slovenia’s territorial waters to the high sea. 7 Also a“contact point” was established with the European Commission concerning the work of ArbitralTtribunal, and the Deputy Director General for Enlargement was appointed to act as the head of this contact point. 8 Croatia’s note verbal of 30 July 2015 as reproduced in Final Award of the Arbitral Tribunal, par.183. 9 Final Award, par. 202. 10 Art. 3/1 of the Arbitration Agreement.

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