CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … and Slovenia till the point where the land border ends at the entrance to the Bay of Piran and the boundary on the sea begins. When and how the de facto situation on the ground will be brought in line with the now de jure finally established state boundary between the Republic of Slovenia and the Republic of Croatia depends, since Slovenia declared her readiness to fully apply the award, primarily on Croatia’s preparedness to accept and apply the arbitral award which according to Art. 7/2 of the Arbitration Agreement is “binding on both parties”. The Boundary in “Piran Bay” The legal status and the delimitation of the border in the bay historically named the Bay of Piran and only lately by Croatia also named Savudria Bay were next to be dealt with by the Arbitral Tribunal. The parties’ views were clearly opposite: Slovenia claiming that the waters of the entire bay are to be Slovenia’s internal waters, basing her claim mainly on historic titles and principle “ uti posidetis de facto ”. According to Slovenia, Piran Bay should retain its status of internal waters as a juridical bay (or alternatively as an historic bay) 22 as it was in the former State (SFRY) and should as such belong to Slovenia. Croatia to the contrary claimed that Piran Bay/Savudria Bay cannot be internal waters of Slovenia and consequently it must be delimited “along the equidistance line”. 23 The Tribunal, taking into account the submissions of both parties and according to its own analysis, basing its decision also on both the 1958 Geneva Convention (Art. 7) and the UNCLOS (Art. 2), and taking into account also the Yugoslav legislation, established that the Bay of Piran on the critical date (25 June 1991, independence for both parties) was (Yugoslav) “internal waters”. 24 The Piran Bay retained, according to the Tribunal’s award, the status of internal waters also after the independence of the parties. The dissolution of the SFRJ did not have an impact on the international legal status of the bay, which was “internal waters” before the dissolution of the SFRJ and it remained “internal waters” also after it. The Tribunal in this part of the award based its considerations and conclusion on the ICJ’s considerations and decision in the Fonseca Case. 25 The tribunal concluded that the fact that the Piran Bay no longer belongs to a single State has no impact on its international legal status of “internal waters”. After affirming the Piran Bay’s status as internal waters, which means that the bay is part of the territory of the successor States, the Tribunal had to delimit the bay. The Tribunal also in this matter followed the principle of “uti possidetis de facto” . Since there had been no division and consequently no delimitation of the Piran Bay between Slovenia and Croatia as “republics” within the SFRY (Yugoslavia), they “inherited no legal title from that time”. 26 Thus the Tribunal based its award in this matter on the principle of effectivités at the date of independence, following also the judicial practice of the ICJ and PCIJ. 27 22 Final Award, par. 863. 23 Final Award, par. 864. 24 Final Award, par. 880. 25 Land and Maritime Land and maritime frontier dispute (El Salvador-Honduras; Nicaragua intervening), ICJ Reports 1992. 26 Final Award, par. 888. 27 Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), ICJ Reports 2002; Legal Status of Eastern Greenland (Denmark v. Norway), P.C.I.J. Series A/B, No. 53.

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