The Boundary Dispute between Croatia and Slovenia

1. Raspad Jugoslavije. 2. Izbijanje spora o granicama između Hrvatske i Slovenije. 3. Sporazum o arbitraži od 4. studenoga 2009. 4. Tijek postupka i jednostrano odustajanje Hrvatske od arbitraže. 5. Konačna presuda izrečena 29. lipnja 2017. godine: Kopnena granica; Piranski zaljev / Savudrijska vala; Pojam ‘’vitalnih interesa’’; Razgraničenje teritorijalnoga mora izvan Piranskoga zaljeva; Pitanje “veze Slovenije s otvorenim morem” (“junction”); Ostale odluke i zaključci Tribunala. 6. Kratak zaključak.The territorial dispute between the two States emerged on 7 April 1993, when Slovenian Parliament adopted the ‘’Memorandum on the Bay of Piran’’. By this act, Slovenia claimed the right to all the waters of this small Bay as its internal waters, as well as its exit to the ‘’high seas’’ at the expense of the parts of Croatian territorial sea. Later on, by enacting a Law in 2005, it alleged to possess the continental shelf, and proclaimed over it a protected ecological zone with fishing rights. Croatia repudiated all these claims as being opposite to the provisions of the 1982 UN Convention on the Law of the Sea, to which both States are parties. All these rules belong to the general customary international law too. Besides that, these claims and allegations go against the principle that ‘’the Land dominates the Sea’’ as formulated and applied in the case law of international courts and tribunals on this subject matter. Slovenia abused its position as member of the European Union before Croatia by blocking the procedure of its entry into the EU membership. As condition for changing its negative attitude, it imposed Croatia’s acceptance of all its territorial requirements. Further on, it qualified these claims as being in its ‘’vital interests’’. The solution to this controversy was found in the Arbitration Agreement between the two Governments. It was signed on 4 November 2009 in Stockholm thanks to the facilities offered by the European Commission. The Agreement entered into force on 29 November 2010, and subsequently Slovenia lifted its reservations. During the arbitration procedure that followed, it was revealed that the Agent of Slovenia had unlawful contacts with other members of the Tribunal and its staff through Slovenian member of the Tribunal. However, with the exception of the Slovenian Arbitrator, who soon after this incident resigned, Croatia did not offer any proof of other members of the Tribunal having been compromised by the affair. Nevertheless, this event was the motive for Croatia to abandon the procedure. Since then, it has been considering that all decisions of the Tribunal, as well as its very existence, are nonexistent for it. After its formal excuse, Slovenia insisted on the continuation of the procedure. By its Partial Award of 30 June 2016, the Tribunal found that Slovenia violated the provisions of the Arbitration Agreement, but that the Agreement remained in force and the arbitral procedure should continue. The Tribunal rendered its Final Award on 29 June 2017 in the absence of Croatia. Hence, a new dispute aroused on the validity of the Final Award, but the territorial divergence between the parties is still waiting for a solution. In this paper, the author carefully analysed the subject dispute in all its phases, and especially the text of the Tribunal’s Final Award. His assessments can be summarised in a triangle of the relations between Slovenia’s claims, Croatia’s defence of its rights, and the legal foundation of the Tribunal’s verdict. There was some disrespect of rules and standards of international law by all its actors. By its insistence on territorial claims over a long period of time, Slovenia harmed Croatia’s legal interests. Either Slovenia’s decision makers believed that international law consisted only of the rules that are in favour of its national interests or they simply disregarded this set of legal norms. Consequently, the Final Judgment repudiated almost all of its claims. It did not recognise Slovenia’s access to the ‘’high seas’’ in the Adriatic Sea in the territorial sense at the expense of parts of Croatian territorial sea. It refused Slovenia’s claim for the possession of the continental shelf, and it did not recognise Slovenia’s rights on all the waters of the Bay of Piran up to Croatia’s shore. Finally, the Tribunal confirmed the sovereignty of Croatia over Sveta Gera/Trdinov Vrh, which had been under the sway of Slovenia since its proclamation of independence in 1991. As regards the rest, the Tribunal’s tracing of land boundaries and the delimitation of the territorial sea outside the Piran Bay may hardly be contested. Hence, with an important exception of the delimitation of the waters within the Piran Bay, Croatia might be considered the winner of this arbitral procedure. However, the Award only confirmed Croatia’s rights it had before the subject dispute emerged on the basis of relevant rules of international law. In this light, it is somewhat unusual that exactly Croatia repudiates this Tribunal and its decisions. By such conduct, it disregards the procedural principle of compétence de la compétence, and underestimates the pacta sunt servanda rule in respect to the existence of the 2009 Arbitration Agreement. Most parts of the Arbitral Award itself belong to the peak of the case law relating to the land and sea delimitations. Unfortunately, the same may not be said for its part concerning the waters inside the Bay of Piran. In order to elude the principle of ‘’equidistance/special circumstances’’, which was successfully applied to the territorial sea beyond the subject Bay, the Tribunal made some stunts. It proclaimed the waters within the Bay to be internal waters even after the proclamation of independence of its two coastal States, with a fiction of their assimilation to the land territory. Thereby, it assimilated the Piran Bay to the lakes deprived of the connection with other seas. For the sake of its delimitation, it explicitly equalised the Bay with land territory. No precedent can justify this. On the other hand, it regulated in detail the freedoms of communications in the ‘’Junction Area’’ outside of the Bay. The Tribunal produced all this in order to avoid applying the said principle of ‘’equidistance/special circumstances’’. Instead of respecting Croatia’s entitlement proceeding from its coast, it delimited the Piran Bay waters on the basis of effectivités. Thereby, the Tribunal possibly aimed at reaching a balanced solution and justice in favour of Slovenia. However, this solution may not be justified by a few quotations from the judgments in the Gulf of Fonseca case. If the Tribunal had given importance to some special circumstances and allotted to Slovenia a little more waters than to Croatia, it would have been difficult to criticise this Award