CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ Both parties claimed they have exercised jurisdiction over parts of the Piran Bay, however Slovenia’s well-established claim (police control, marine research etc.) led the Arbitral Tribunal to conclude “that the delimitation is to follow a line situated between the lines advanced by the parties”, 28 i.e. between the southern coast of the Bay as claimed by Slovenia and the equidistance line as claimed by Croatia. The border line in the Piran Bay is thus now the straight SE-NW line from the final point of the land boundary to the straight SW-NE closing line of the Bay’s internal waters. Factually, this means cca. 82% of the Piran Bay belonging to Slovenia as her “internal waters” and cca. 18% to Croatia as her “internal waters”. Delimitation of the Territorial Sea Next the Tribunal had to establish the border between the parties’ territorial seas (territorial waters) outside the Piran Bay. As in other matters concerning the maritime delimitations the parties were of entirely divergent views. In a simplified way it can be summarised that both parties in their submissions endeavoured to base their claims on international law. Croatia, insisting primarily on the equidistance line also in delimiting the territorial sea outside the Piran Bay, based its position mainly on the Art. 15/1 of the UNCLOS, according to which the equidistance line (the “median” line) has the primacy also in delimiting the territorial sea and denied any exception (historic title or the presence of other special circumstances) which could lead to corrections of the median line. 29 To the contrary, Slovenia claimed that in this case historic and other special circumstances are present, thus the delimitation of territorial sea should, according to Art.15/2 not follow the equidistance line, but these “factors justify delimiting the territorial sea boundary using a method tailored to the particular circumstances of the maritime areas lying off the Parties’ coasts”. 30 In its submissions Slovenia tried to prove its historic title and “special circumstances” also by referring to relevant international courts decisions, 31 its fishing rights and activities in the sea adjacent to the western coast of Croatia’s Istria, and its police activity in the area 32 as well as the so-called Squeezing Effect, 33 Coastal Concavity, 34 Cut-Off-Effect 35 and the “Security and Navigational Interests”. 36 The Arbitral Tribunal in its analysis also departed from the UNCLOS Art. 15. It followed the approach suggested by the judicial practice of the ICJ according to which “the delimitation both of the territorial sea and of the maritime zones beyond the territorial sea, international law…calls for the application of an equidistance line, unless another line is required by special circumstances”. 37 Accordingly, the Arbitral Tribunal modified the equidistance line since it accepted, though in a very limited scope, Slovenia’s argumentation that the relevant “special circumstances” exists, basing its conclusion in particular on the North Sea Continental Shelf

28 Final Award, par. 912. 29 Final Award par. 952. 30 Final Award par. 954. 31 Final Award , par. 956. 32 Final Award, par. 957-959. 33 Final Award, par. 965-969. 34 Final Award, par. 970-975. 35 Final Award, par. 976-983. 36 Final Award, par. 984. 37 Final Award, par. 1000.

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