By: Alex Oude Elferink
Decision commented on: Final Award pursuant to the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed on 4 November 2009, Final Award 29 June 2017
The Final Award in the Arbitration between Croatia and Slovenia dealing with their land and maritime boundaries was the subject of an earlier post on this blog. The current post aims to look in more detail at delimitation of the territorial sea boundary by the Tribunal and in that connection considers how it fits with the extensive case law of the International Court of Justice and other tribunals on the delimitation of maritime boundaries. For further background information on the Arbitration and the Award reference may be had to the earlier post of Nigel Bankes, The Maritime Aspects of the Award in the Arbitration between Croatia and Slovenia, on this blog.
One of the tasks that had been entrusted to the Arbitral Tribunal under Article 3(1) of the Arbitration Agreement was the determination of the course of the maritime boundary between the parties. The Tribunal determined that the maritime boundary started at a point, identified as Point A by the Tribunal, on the closing line of the Bay of Piran (Award, para. 1002). The Tribunal had previously determined that the Bay of Piran had the status of juridical bay and that its waters had the status of internal waters (see ibid.). The boundary between the parties in the Bay had been established ‘on the basis of the same principles as are applicable to the delimitation of land territories’, which in the present case implied that the boundary had to be established on the basis of uti possidetis (ibid., para. 886). Point A constituted the terminal point of the boundary of the internal waters of the Parties in the Bay of Piran. The closing line on which Point A is located runs between Cape Madona in Slovenia and Cape Savudrija in Croatia. The closing line measures some 4.9 kilometers and is some 1.2 kilometers distant from Cape Savudrija and some 3.7 kilometers distant from Cape Madona.
The interpretation of article 15 of the United Nations Convention on the Law of the Sea
The first issue the Tribunal was required to address in connection with the delimitation of the territorial sea was the interpretation of article 15 of the United Nations Convention on the Law of the Sea (Convention), which provided the applicable law between the Parties. Article 15 provides:
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.
According to Croatia, “the basic principle underlying Article 15 is the ‘primacy of the median line as the delimitation line between the territorial seas of opposite or adjacent States’” (ibid., para. 952). Croatia furthermore submitted that none of the exceptions allowing for a deviation from the median line was present (ibid.). On the other hand. Slovenia argued that article 15 does not create a “general presumption in favour of equidistance delimitation” and the median line should only be applied in case the factors mentioned in the second sentence of article 15 are not present (ibid., para. 954). In considering this matter, the Tribunal reaches the conclusion that “[i]n relation to the delimitation […] of the territorial sea […], international law […] calls for the application of an equidistance line, unless another line is required by special circumstances” (ibid., para. 1000). Unobjectionable as this finding may be, it does little to clarify the relationship between equidistance and special circumstances. More importantly, the Tribunal’s reasoning in reaching this conclusion is unconvincing.
The Tribunal sets out by quoting the provisions on the delimitation of respectively the territorial sea and the continental shelf and the exclusive economic zone (ibid., paras 997-998). Next, the Tribunal submits that the International Court of Justice (ICJ) “has developed a settled jurisprudence relating to the interpretation of those provisions”, while quoting the Court’s description of the three-stage approach of first drawing a provisional delimitation line, then assessing that line in the light of the relevant circumstances of the case and finally applying the disproportionality test to determine whether the proposed boundary results in an equitable solution (ibid., para. 999), which has been developed in the context of the delimitation of the continental shelf and the exclusive economic zone. The Tribunal then submits that “international law thus calls for the application of an equidistance line, unless another line is required by special circumstances” (ibid., para. 1000; emphasis provided). However, the assertion that the ICJ’s three-stage approach is settled jurisprudence in relation to article 15 is not borne out by a reading of the judgments to which the Tribunal refers. The quotation in paragraph 999 of the Award is from the judgment of the Court in Peru v. Chile. As the Award indicates (ibid., footnote 1948), the Court in this connection makes reference to its earlier decisions in Black Sea and Territorial and Maritime Dispute (Nicaragua v. Colombia). All three decisions discuss the three-stage approach in relation to the delimitation of the exclusive economic zone and the continental shelf and there is nothing in these judgments suggesting that the Court considered that the three-stage approach applies equally to the delimitation of the territorial sea under article 15 of the Convention.
What makes the Tribunal’s reliance on Chile v. Peru all the more remarkable is that the Court and other tribunals on a number of occasions explicitly have addressed the interpretation of article 15. That case law might suggest that the rules contained in article 15 on the one hand, and articles 74 and 83 on the other hand, are not completely identical, contrary to what the Tribunal suggests. For instance, the Court in Nicaragua v. Honduras has observed that:
The methods governing territorial sea delimitations have needed to be, and are, more clearly articulated in international law than those used for the other, more functional maritime areas. Article 15 of UNCLOS, like Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone before it, refers specifically and expressly to the equidistance/special circumstances approach for delimiting the territorial sea. The Court noted in the cases concerning North Sea Continental Shelf, that
“the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out” (Judgment, I.C.J. Reports 1969, p. 37, para. 59) (Nicaragua v. Honduras, judgment of 8 October 2007, para. 269)
The Court’s observation concerning the clearer articulation of the methods governing the delimitation of the territorial sea more recently were repeated by the arbitral tribunal in Bangladesh v. India, although the tribunal did not refer to the Court’s judgment (Bangladesh v. India, award of 7 July 2014, para. 246). In Guyana v. Suriname, an arbitral tribunal observed that article 15 of the Convention “places primacy on the median line as the delimitation line between the territorial seas of opposite or adjacent States” (Guyana v. Suriname, award of 17 September 2017, para, 296). This case law on article 15 of the Convention confirms that the delimitation of the territorial sea has to be executed by first drawing a provisional equidistance line and then assessing the implications of any special circumstances (see e.g. Nicaragua v. Honduras, judgment of 8 October 2007, para. 268, quoting from the judgment on the merits in Qatar/Bahrain).
To further support the position that there has been a convergence of the rules applicable to the delimitation of the territorial sea and the functional zones beyond, the Tribunal submits that the ICJ “has applied the ‘equidistance/special circumstances’ approach in the drawing of single maritime boundaries without distinguishing between its application to the territorial sea and its application beyond the territorial sea” (Award, para. 1000). Again, the case law that the Tribunal invokes in support does not prove the point. In footnote 1949 of the Award, reference is made to Peru v. Chile and Cameroon v. Nigeria. However, in both cases the paragraphs to which the footnote refers are only concerned with the delimitation of the exclusive economic zone and the continental shelf. As a matter of fact, the Court in both cases found that the territorial sea and a part of the maritime boundary beyond had already been delimited by an agreement between the Parties and the Court limited itself to establishing the final part of the continental shelf and exclusive economic zone de novo. It may furthermore be observed that in most cases in which the Court and tribunals were requested to delimit both the territorial sea and the functional zones beyond it, they have proceeded by first establishing the boundary in the territorial sea and then proceeding to the delimitation of the exclusive economic zone and the continental shelf.
The Tribunal’s final argument to support the convergence of the rules applicable to the delimitation of maritime zones is “that a maritime boundary may separate adjacent maritime zones of different juridical character, such as the territorial sea of State A and the exclusive economic zone of State B” (Award, para. 1000). Although that situation may indeed be the result of the delimitation of the territorial sea and the functional zones beyond – as a matter of fact this will always be the case if the boundary is not determined on the basis of equidistance – it remains uncertain how that situation supports the assertion that there is a convergence of the rules applicable to the delimitation of maritime zones.
The Tribunal’s formulation of the fundamental principles applicable to the delimitation of the territorial sea
In accordance with its findings on the applicable law, the Tribunal first determines the equidistance line from Point A on the closing line of the Bay of Piran up to a point on the boundary of the Parties with Italy (Award, paras 1001-1003). Next, the Tribunal turns to the consideration whether there are any special circumstances that require an adjustment of the provisional equidistance line. In dealing with this latter matter, the Tribunal observes there are two fundamental principles that need to be accommodated: the principle of natural prolongation (ibid., para. 1008) and the principle “that “the effects of an incidental special feature from which an unjustifiable difference of treatment could result” should be abated when effecting a maritime delimitation” (ibid., para. 1009; footnote suppressed). One may wonder whether this truly captures the fundamental principles that are applicable to the delimitation of the territorial sea.
As the Tribunal itself acknowledges, the principle of natural prolongation was developed by the ICJ in the context of North Sea Continental Shelf in the context of the delimitation of the continental shelf (ibid., para. 1008). According to the Tribunal, nonetheless “the principle is equally applicable to the territorial sea” (ibid.). This may be doubted. The Court in North Sea Continental Shelf concluded that entitlement to the continental shelf was based on the concept of natural prolongation and that a delimitation between States should avoid a situation where the continental shelf of one State “encroach[es] upon what is the natural prolongation of the territory of another State” (North Sea Continental Shelf, judgment of 20 February 1969, para. 85; see also ibid., paras 43-44). By contrast, entitlement to the territorial sea is not based on natural prolongation, but on distance from the coast.
One wonders why the Tribunal, instead of relying on North Sea Continental Shelf to make the point concerning non-encroachment and not cutting off the seaward projection of the maritime entitlements of a neighboring State, does not refer to the more recent case law of the Court, which formulates the principle in a more general manner. For instance, in Territorial and Maritime Dispute (Nicaragua v. Colombia) the Court observed that it had to take proper account of “the need to avoid cutting either State off from the maritime spaces into which its coasts project” (Territorial and Maritime Dispute (Nicaragua v. Colombia), judgment of 19 November 2012, para. 236). It should moreover be observed that the Court in its 2012 judgment in this connection did not refer to non-encroachment as a fundamental principle as the Tribunal does, but as one of the relevant circumstances it had to take into account in order to achieve an equitable solution (ibid.).
As regards the second fundamental principle that is invoked by the Tribunal – the need to avoid an unjustified impact of an incidental special feature on the outcome of the delimitation – it may equally be noted that this has not been recognized as a fundamental principle applicable to the delimitation of maritime boundaries. This is readily apparent from the judgment in North Sea Continental Shelf, on which the Tribunal itself relies in this connection (see Award, para. 1009). The Court discussed this matter in the context of the role equity had to play in the delimitation of the continental shelf, observing that equity does not necessarily require equal treatment, but that inequity should be avoided between states in a situation of equality of the same order (North Sea Continental Shelf, judgment of 20 February 1969, para. 91). In its judgment on the merits in Cameroon v. Nigeria, the Court explicitly confirmed that in referring to an incidental special feature in North Sea Continental Shelf it was not formulating a fundamental principle of delimitation law, but describing a specific relevant circumstance that had to be taken into account to meet the principle of equity as defined in that paragraph (Cameroon v. Nigeria, judgment of 10 October 2002, para. 295).
The Tribunal’s assessment of special circumstances
In assessing whether there are any special circumstances calling for the adjustment of the equidistance line, the Tribunal holds that:
certain features of the coastal configuration in the present case produce an exaggeratedly adverse effect if the strict equidistance line is used, and do constitute a special circumstance. That special circumstance is the fact that very close to Point A the coastline of Croatia turns sharply southwards around Cape Savudrija, so that the Croatian basepoints that control the equidistance line are located on a very small stretch of coast whose general (north-facing) direction is markedly different from the general (southwest-facing) direction of much the greater part of the Croatian coastline […], and deflect the equidistance line very significantly towards the north, greatly exaggerating the “boxed-in” nature of Slovenia’s maritime zone (Award, para. 1011).
The reasoning of the Tribunal warrants a couple of comments. First, the fact that the Croatian basepoints are located on a small stretch of coast is not caused by the fact that the Croatian coast turns sharply southwards to the west of Cape Savudrija, as the Tribunal submits. As a matter of fact, if the entire coast of Croatia would have been aligned with the north-facing stretch of coast of Croatia as defined by the Tribunal (ibid., para. 1011 and Map V; Map V is reproduced at the end of this post), the equidistance line would have been no different.
Second, by taking into account the southwest-facing coast of Croatia in assessing the territorial sea delimitation, the Tribunal departs from the settled case law that only the relevant coasts of the Parties have to be taken into consideration in this connection. As the Court observed in Black Sea
The Court […] would recall two principles underpinning its jurisprudence on this issue: first, that the “land dominates the sea” in such a way that coastal projections in the to be taken into consideration are the coasts that project seaward direction generate maritime claims (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96); second, that the coast, in order to be considered as relevant for the purpose of the delimitation, must generate projections which overlap with projections from the coast of the other Party. Consequently “the submarine extension of any part of the coast of one Party which, because of its geographic situation, cannot overlap with the extension of the coast of the other, is to be excluded from further consideration by the Court” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 75) (Black Sea, judgment of 3 February 2009, para. 99).
Applying the Court’s principles to the territorial sea delimitation between Croatia and Slovenia, it may be noted that the southwest-facing coast of Croatia does not project seaward in such a way as to generate projections that overlap with the seaward projection of Slovenia’s north-facing coast.
A third point concerning the Tribunal’s finding on special circumstances is that it concludes that the coastal configuration deflects the equidistance line north “greatly exaggerating the “boxed-in” nature of Slovenia’s maritime zone”. It is difficult to understand how the equidistance line is deflected. As a matter of fact, the equidistance line is an almost straight line running from Point A to its endpoint on the boundary of the Parties with Italy.
Fourthly, the Tribunal introduces the notion of “boxing-in” of maritime zones. To the knowledge of this author this is a new term in the delimitation case law. However, as the Tribunal subsequently clarifies it considers that the term “boxing-in” is to be equaled with the commonly used term “cut-off” (Award, para. 1012). However, if the latter term is used as the standard for assessing whether the provisional equidistance line needs to be adjusted due to the presence of special circumstances, the Tribunal’s analysis reveals itself as problematic. As Map V included in the Award and para. 1011 of the Award indicate, the Tribunal considers that the general direction of Slovenia’s coast that is taken into account in the delimitation is facing north. The equidistance line is almost perpendicular to that general direction, implying that there is no or little cut-off of the seaward projection of the coast of Slovenia.
The Tribunal’s position that there is a cut off of the maritime zones of Slovenia is further contradicted by an assessment of the overall geographical context in which the delimitation between the Parties takes place (see also Territorial and Maritime Dispute (Nicaragua v. Colombia, judgment of 19 November 2012, para. 229). Slovenia is situated on the southeastern coast of the Gulf of Trieste, which is body of water that is clearly distinguishable from the Adriatic Sea proper to the west of the entrance of the Gulf. The northeastern and northern coast of the Gulf are occupied by Italy. The maritime boundary between Slovenia and Italy starts from their common land boundary and runs in an approximately northwestern direction to the middle of the Gulf and at point T3 turns approximately west-southwest. The provisional equidistance line between Slovenia and Croatia determined by the Tribunal meets this boundary at a point identified as Point O (see Award, Map V). The maritime zones of Slovenia as a consequence extend to the middle of the Gulf of Trieste along a broad corridor. While the northern coast of Slovenia facing the middle of the Gulf along a straight line that measures some 20 kilometers, the part of Slovenia’s boundary with Italy between Point T3 and Point O measures slightly less than 15 kilometers (see Award, Map IV; Map IV is reproduced at the end of this post). This situation may be compared to that of Germany in the North Sea Continental Shelf Cases, where the Court held that equidistance resulted in a cut-off. The equidistance lines between Germany and Denmark and Germany and the Netherlands converged and the equidistant tripoint is some 170 kilometers distant from the median line between the United Kingdom and the European continent. If Germany would have received a similar treatment to Slovenia in applying equidistance to delimit its boundary with Croatia, Germany would have had a 135 kilometers long equidistance boundary with the United Kingdom. The agreements Germany negotiated with Denmark and the Netherlands on the basis of the Court’s judgment in North Sea Continental Shelf actually gave it a boundary of less than 20 kilometers on that median line boundary. North Sea Continental Shelf removes any doubt that there is no cut-off of Slovenia’s seaward projection by an equidistance line with Croatia.
It is submitted that the limited maritime zone of Slovenia is not due to a notional cut-off effect resulting from the equidistance line between Slovenia and Croatia, but the result of the limited dimensions of the Gulf of Trieste. In that sense, Slovenia is in a different geographical situation than Croatia, which faces the Adriatic proper beyond the Gulf of Trieste. The consequences of that difference have been aptly explained by the Court in North Sea Continental Shelf:
Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But in the present case there are three States whose North Sea coastlines are in fact comparable in length and which, therefore, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two (North Sea Continental Shelf, judgment of 20 February 1969, para. 91).
As a final step in the delimitation of the territorial sea, the Tribunal adjusts the provisional equidistance line to account for the special circumstance it has found to exist (Award, para. 1014). To avoid exacerbating Slovenia’s boxed in condition, the territorial sea boundary is a line that runs approximately parallel to the part of the boundary between Italy and Slovenia between points T2 and T3 (ibid.).
The Tribunal’s handling of the delimitation of the territorial sea between Croatia and Slovenia is problematic on a number of counts. In interpreting article 15 of the Convention, the Tribunal ignores the case law on that point and instead argues that there is congruity between the law applicable to the delimitation of the territorial sea and the functional zones beyond. As the present analysis points out, the Tribunal in this connection refers to case law that on closer scrutiny provides no support for this position.
The Tribunal submits that there are two fundamental principles applicable to the delimitation of the territorial sea. However, questions exist as regards the formulation of one of those principles and as regards whether the other ‘principle’ actually is one of the fundamental principles applicable in this context.
The Tribunal considers that the equidistance line between Croatia and Slovenia greatly exaggerates the cut-off of Slovenia’s maritime zones. The Tribunal’s analysis is questionable for number of reasons. To reach its conclusion the Tribunal takes into account a part of the coast of Croatia that is not part of the relevant coast for the territorial sea delimitation. Furthermore, it is submitted that there actually is no cut-off of the maritime zone of Slovenia if the territorial sea delimitation between Croatia and Slovenia is assessed in its proper geographical context, i.e. the confined maritime area of the Gulf of Trieste.
Thanks to Nigel Bankes for his careful review of a draft of this post.