EQUITY AND INTERNATIONAL LAW IN MARITIME DELIMITATIONS

Spor o razgraničenju morskih prostora između Slovenije i Hrvatske na Sjevernom Jadranu predmetom je mnogih rasprava i sukobljenih mišljenja među političarima, novinarima, ali i nekim pravnicima, i to u obima državama. Rijetko su kada sudionici tih rasprava iskazivali poznavanje međunarodne sudske i arbitražne prakse o morskim razgraničenjima, iako su jedni tu mogućnost rješenja spora otklanjali, a drugi su je zagovarali. U svemu tome još je manje bilo raspravljanja o ulozi pravde, pravičnosti i međunarodnoga prava u toj oblasti, ali se napose Slovenija počesto poziva na “pravičnost“ i prije je predlagala sudsko rješavanje ex aequo et bono umjesto po pravu. Ovaj tekst ima napose za cilj da razjasni neka pitanja iz Sporazuma o arbitraži dviju država od 4. studenoga 2009. godine.The disagreement over the maritime delimitation between Slovenia and Croatia in the North Adriatic is the topic of heated debates in both of these countries among politicians, journalists and some lawyers. There are, however, few participants in these debates who displayed the knowledge of the case law of international courts and tribunals in maritime delimitations. That is in spite of the fact that some of these participants vigorously oppose, and others advocate the judicial settlement of this dispute. In all of that there was the least discussion about the role of justice, equity and law in this domain, although Slovenia in particular often refers to equitable solution of this dispute instead of that based on law. Slovenia previously advocated the procedure before the International Court of Justice ex aequo et bono as provided in Article 38(2) of its Statute. This paper has as its aim to elucidate these problems, and especially to construe some provisions in the Arbitration Agreement between two States of 4 November 2009. According to the Lalande’s Vocabulary of Philosophy, equity is but a “sentiment sûr et spontané du juste et de l’injuste, en tant surtout qu’il se manifeste dans l’appréciation d’un cas concret et particulier”.14 This concept is quite separate from the rules of Equity in Anglo-Saxon law. On the other hand, it was proved in practice that there are no “equitable principles” which could replace the rules of positive international law, even in maritime delimitations. Equity (aequitas) in the above meaning is tobe considered in correlation with law (jus) and justice (justicia) taken as an end, especially in judicial and arbitral settlement. In this sense equity appears infra legem, praeter legem and contra legem. (i) Equity infra legem or accessory equity is normally resorted by a judge in his application of law, for which he needs not to be authorized by parties. He will inspire himself by equity especially if the law leaves to him a margin of discretionary power, such as in assessment of damage and of compensation for loss, in fixing the interest on the sum awarded, in apportionment of coasts of the suit before the court, etc. In addition, the judge is guided by equity in assessment of proofs, or when resorting to the concept of abuse of law. And when the ambiguous meaning of a treaty leaves several interpretations possible, he will choose that which seems the most equitable to him. However, this kind of equity does not empower the judge to undermine the clear sense of a legal text to be applied, nor can he through equity remove paucities in law or correct its unjust consequences. He must apply the law in good faith such as it is in force. (ii) Equity praeter legem is that to which a judge must resort in cases of lacunae or gaps in law, in order to avoid declaring non liquet. Especially in settlement of disputes on land and maritime delimitations between States, a judge or arbitrator can have a large power in deciding some issues on equity praeter legem. At the same time he has a large responsibility in doing justice to the disputing parties. The agreement by which the parties seek the final settlement of their dispute should be interpreted as their indirect authorization given to the court to decide their case on the basis of equity in absence of applicable legal rules in force. The matter is for instance of the identification of relevant coasts abutting upon the area to be delimited. In this area a provisional line of equidistance is posited as a hypothesis, which should be adjusted in the light of relevant circumstances (if any) in order to achieve an equitable result. The latest task belongs to the equity infra legem. Besides this, the parties can empower a judge or arbitrator to prescribe by his judgment a special legal regime of navigation in their territorial waters, or to set down measures for protection of fishing resources or for preservation of the marine environment. Equity praeter legem plays important role in performing of all these functions by a judge. (iii) Equity contra legem is usually connected with the special power of the judge, agreed by all parties, to decide their case ex aequo et bono, as provided in Article 38, paragraph 2 of the Statute of the International Court of Justice. However, this is not precisely the case because the judge is even in this function bound by many important legal limits. The power to decide a case ex aequo et bono is in fact the power endowed to the court to exercise a genuine legislative function for parties. Nevertheless, while the parties themselves can by their direct agreements make extra-legal compromises based on expediency in order to establish their new legal regime, a judge is in performing this function much more limited. He must prove to the utmost his impartiality before the conflicting claims of all disputing parties. His justice excludes arbitrariness, caprices, and motives of political opportunity or power relations between parties. Besides that, even in accomplishing its quasi-legislative function, the court is bound to observe peremptory norms of general international law (jus cogens), from which the parties themselves cannot decline when making treaties. The court is equally obliged to respect all legal rights of third States to the dispute, because they did not empower it to decide the case and even less to settle it ex aequo et bono. In performing this function of establishing a new legal regime a court could to a certain extent revise subjective rights of both parties. However, even in this function it cannot change the existing inter-State boundaries, boundary regimes or demarcation lines. This can do only the parties by their free agreement. The (Badinter) Arbitration Commission has ruled in its Opinion No.3 of 11 January 1992 that all external frontiers of newly created States as a consequence of dissolution of the predecessor State, must be respected. The boundaries between territorial entities of the former federation which acquired independence, “may not be altered except by agreement freely arrived at”. Finally, except where otherwise agreed (by the parties themselves), “the former boundaries become frontiers protected by international law”. It is possible to imagine only in abstract terms that the respective new States transfer on a judiciary body the task to trace their new common frontiers. In such a case there should not be a demarcation, but entirely new delimitation. However, for performing of this quite exceptional duty the authorization given to the court to decide a case ex aequo et bono should not suffice. For all the above reasons it is the most appropriate not to link the authorization to a judge or arbitrator to deal ex aequo et bono with the equity contra legem. It is even more important to stress that in the practice of the two Hague Courts since 1922 no judgment on this bases has ever been rendered. -- In the practice of The Hague Court and arbitral tribunals on maritime delimitations there was much oscillation in respect of the role of equity and “equitable principles”. However, the Arbitral Award in the Barbados/Trinidad and Tobago case of 2006 made a successful attempt in accomplishing a synthesis of principles, rules, criteria, factors and practical methods, articulating them in the context of a consistent process of maritime delimitations to be followed in practice.15 This synthesis can be helpful to parties to a dispute which are willing to observe all their legal commitments in good faith, including customary rules as enshrined in the 1982 UN Law of the Sea Convention, in order to find a just solution in direct negotiations, instead of resorting to a third impartial body. However, all Slovenia’s claims in the present dispute with Croatia are in contradiction with the basic legal principle that the land dominates the sea. It claims part of the sea far away its coast, in which it does not enjoy any legal entitlement. Previously, it strongly insisted on a political solution based on its considerations of equity contra legem to the detriment of legal rights and interests of Croatia. In order to stop Slovenia’s blockade to the entry of Croatia into the full membership of the European Union, both countries were convinced to agree on the Arbitration Agreement for the final settlement of their dispute. The Agreement was signed on 4 November 2009 in Stockholm. Nevertheless, the agreed text remained the subject matter of continuous misunderstandings in the public opinion in both countries. Equitable solution is again the matter of the dispute, especially in respect of “Slovenia’s junction to the High Sea”, as provided in Article 3-(1)-(b) of the Agreement. The matter is of a term which does not belong to the legal terminology but to which the Arbitral Tribunal will give a legal interpretation in its Award. In the view of this author the disputed term should be understood in functional and not in territorial context. The respective provision does not empower the Tribunal to render its award ex aequo et bono, and still less to base it on an equity contra legem. Article 3-(1)-(a) of the Agreement provides that the Arbitral Tribunal shall determine: “the course of the maritime and land boundary between the Republic of Croatia and the Republic of Slovenia”. According to Article 4 on Applicable Law, the Tribunal shall apply: “the rules and principles of international law for the determination referred to in Article 3 (1) (a)”, i.e. strictly on a legal basis. According to Article 3-(1) under (b) and (c), the Tribunal shall determine in addition: “Slovenia’s junction to the High Sea”, and “the regime for the use of relevant maritime areas”. Only in respect to these two other functions the “Applicable Law” as provided in Article 4 is different than for the previous task. The Arbitral Tribunal shall apply here: “international law, equity and principles of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances for the determination referred in Article 3 (1) (b) and (c)”. This means the application in these domains of rules of international law, including previous practice of States and case law. Only in absence of such rules, standards and practices, the Tribunal shall exercise its equity praeter legem, as well as other considerations “in order to achieve a fair and just result”. It is likely that Slovenia will not be successful in this arbitral procedure in its territorial claims which are devoid of legal ground. That can however be proved as correct only if Croatia is represented in this procedure by experts in knowledge of all these complicated issues