CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … It is, after the Final Award was issued, obsolete in this short presentation to present both parties’ diverse claims and extensive corresponding argumentations. 11 It is however important to present the reasoning and conclusions of the Tribunal. The Tribunal departed from the premise that the “fundamental principle applicable to the establishment of land boundaries between sovereign States is consent… Equally, if the States agree upon the manner in which the boundary is to be determined, the boundary determined in accordance with the agreement is the boundary as a matter of international law”. 12 The parties in this very case agreed that the boundary should be determined in accordance with rules and principles of international law (the maritime and the land boundary) as the border presumably was on the agreed decisive date (June 25, 1991). Thus, the Arbitral Tribunal was entitled to apply only the rules and principles of international law. As stated in the Final Award par. 335: “The Tribunal is required to decide the matter from the legal and not from the historical or political or sociological perspective. That is what the two governments have chosen and mandated”. The parties have, according to the analyses of the Arbitral Tribunal, also more specifically agreed 13 that the Tribunal shall apply the principle of “uti possidetis” , which in this case means that “the present land boundary between the two States is the same as the pre-independence boundary between the two republics when they were constituent republics of the SFRJ.” 14 According to the Tribunal’s analysis of the materials presented to it by the parties, they also agreed that “the course of the pre-independence boundary is the course that was stipulated by the law applicable” 15 prior to 25 June 1991. Thus, according to the Tribunal’s extensive analysis of the claims and positions of the parties, they agreed that the Arbitral Tribunal had to “determine the legal and not the political boundary”. 16 Thus the “legal” boundary determined by the Arbitral Tribunal was not supposed to “correspond in every detail to what persons in some location treat as the boundary for day-to-day purposes”. 17 According to the Tribunal, the parties also agreed that “the course of the boundary should not be determined by the wishes of the inhabitants of the areas in question”. 18 Let it be mentioned that the Arbitral Tribunal has indeed strictly followed these “agreements” of the parties resumed mainly from their written and oral submissions to the Tribunal and consequently did not consider several principles of contemporary international law such as respect for human rights concerning the undisturbed life in one’s home and even the right to self-determination. The result of this rigidity of the parties and also of the Arbitral Tribunal is that, fortunately, only in a few small hamlets of all together less than a hundred houses, some people who, ever since the breakup of the SFRY, believed they lived in Slovenia (or vice versa in Croatia) found themselves after the Tribunal’s award in the neighbouring State.

11 They are extensively elaborated in the Final Award, par 207-313. 12 Final Award, par. 334. 13 Final Award, par. 336. 14 Ibid.

15 Final Award, par. 337. 16 Final Award, par. 338. 17 Ibid. 18 Final Award, par. 339.

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