CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ Where no legal titles or not clear enough ones could be established the Arbitral Tribunal involved the effectivities to determine the boundary, explaining the effectivities according to the PCIJ’s (Permanent Court of International Justice) decision in the Eastern Greenland case 19 and the ICJ’s decision in Maritime Delimitation and Territorial Questions Between the Qatar and Bahrain case. 20 Actually, both parties in matters concerning disputed parts of the boundary presented abundant practise of effectivities which the Tribunal took into account in its decisions wherever the legal title was disputed, unclear or not sufficiently established. The Arbitral Tribunal could in such disputed and unclear situations concerning the land boundary give more consideration to the interests of individuals and their human rights without risking harm to any vital interest of either party or to violate its mandate, which should be interpreted in the context of principles of contemporary international law including respect of human rights and humanity. The Land Boundary In the main focus of this text are the problems of the boundary between the parties on the sea and the “junction” of Slovenia’s territorial waters to the high seas. Consequently, concerning problems of the land border between the parties let us express only a few remarks. Concerning the agreed, undisputed segments of the land border (91% of the land border), the Tribunal concluded that the boundary follows the course as agreed by the parties and as reflected in aligned cadastral lines. In cases of disputed segments of the land boundary the Arbitral Tribunal proceeded as it did in the case of undisputed segments from the presumption that the aligned cadastral limits are the prima facie indication of the boundary. However, in disputed areas there were no aligned or clear cadastral limits or cadastral maps overlapped or left gaps. In such cases the Tribunal had to apply other instruments and criteria based on documentary and cartographic evidence submitted to it by the parties. According to the agreement of the parties, the Arbitral Tribunal did not undertake any independent investigation of its own, nor did its experts visit any of the disputed areas. The functioning of the Arbitral Tribunal “in camera” and basing itself only on the materials submitted by the parties without undertaking any independent investigation of its own seems to be the cause for those delimitations of the land border established by the Tribunal that in a few cases created unnecessary problems, harm and difficulties for the local population. The Tribunal while explaining the award and being itself aware of possible difficulties and problems on the ground for the local population caused by the award, suggested to the parties “either to agree on adjustments or to find other ways to resolve those problems in a spirit of friendly cooperation”. 21 By the Arbitral Tribunals’ Final Award the state boundary on land between the Republic of Slovenia and the Republic of Croatia is de jure finally established in all its segments, both undisputed and disputed ones, and detailed in the Dispositif of the Final Award. Thus the boundary between the two members of the EU and NATO is, according to international law, finally delimited from its beginning at the triangle of state borders between Hungary, Croatia 19 Legal Status of Eastern Greenland , PCIJ, Series A/B, No. 53. 20 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain , ICJR Reports 2001. 21 Final Award, par. 565.

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