What Role for Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas?

By: Mana Tugend

PDF version: Mana Tugend_260421_NCLOS Blog

Matter commented on: the Role of Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas


1 Introduction

The rapidly evolving ocean technologies and environmental changes induced by anthropogenic climate change have led to unprecedented pressures on the ocean, leading inter alia to ocean acidification, loss of biodiversity and pollution of air, water and soil. The need for better governance of human activities in the ocean space has been widely recognized for years as the world drastically evolved since the establishment of the current international legal framework for ocean governance, the 1982 United Nations Convention on Law of the Sea (UNCLOS). A process towards the establishment of an international legally binding instrument (ILBI) under UNCLOS on the conservation and sustainable use of marine biodiversity located in areas beyond national jurisdiction (BBNJ) is currently ongoing. At the moment and until the BBNJ agreement is finalized, more than 40% of the Earth’s surface receives limited effective legal protection for its natural environment and functional ecosystems (Brodie Rudolph et al. 2020). The BBNJ negotiations represent a historical opportunity to build a just and sustainable legal framework for ocean commons relying on an ecosystem-based approach for the benefit of both ecosystems and the people depending on these for survival. Indigenous peoples especially rely on a rich biodiversity and a healthy environment to maintain their traditional lifestyles. They developed and hold a vast amount of knowledge called traditional knowledge (TK), an integrated part of an Indigenous people’s identity that is transmitted across generations. This blog post wishes to address the question of the use of TK for the conservation of marine biodiversity in areas beyond national jurisdiction (ABNJ), a question currently addressed at the negotiations for the establishment of a BBNJ instrument. The scope of the discussion especially focuses on the incorporation of Indigenous peoples and TK holders with respect to conservation mechanisms in Arctic ABNJ – the high seas and the deep seabed located beyond the limits of coastal states’ jurisdiction (Ardron et al. 2013). This blog post primarily focuses on the relevance of TK with respect to the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs), in Arctic ABNJ.

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Posted in Arctic, Areas beyond national jurisdiction (ABNJ), Biodiversity beyond national jurisdiction (BBNJ), Environment | Leave a comment

Convenient shipbreaking: shortcomings of environmental obligations for EU ship owners and possible solutions

By: Eva Sinemus

PDF version: Eva Sinemus, Final_120321,NCLOS Blog

Matter commented on: Shipbreaking and shortcomings of environmental obligations for EU Ship Owners


1 Introduction

Global maritime trade reached 11.08 billion tons in 2019 (UNCTAD, Review of Maritime Transport 2020, 2). At the end of their life, vessels are scrapped, mostly in environmentally highly questionable conditions. Unfortunately, 90% of scrapping continues to take place in developing States using the beaching method (Barua et al 2018, 30881), allowing pollutants to seep into the coastal and marine environment. Workers take vessels apart with gas torches while liquids are discharged on the beaches and in the sea, and wastes are burned on the beach (Galley 2014, 11). The harmful beaching practice is especially widespread among vessels owned by EU nationals (EU owners) (European Commission, Ship recycling: reducing human and environmental impacts 2016, 3). EU owners scrap their end-of-life vessels in the developing States at substandard shipbreaking yards, with substantial impacts on the environment. An uncomfortable truth comes to show: With EU lawmakers watching, EU owners operate vessels for decades, profiting greatly. As soon as the profit margins decrease, there are no qualms to sail those vessels full of asbestos and oil onto a developing State’s beach, destroying the environment in the process.

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Posted in Environment, European Union, Shipbreaking | Leave a comment

Virtual progress towards a new global treaty on marine biodiversity in areas beyond national jurisdiction

By: Christian Prip

Pdf:NCLOS Blog Prip New Treaty

Matter commented on: Virtual inter-sessional work of the Intergovernmental Conference on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).

I. Introduction

Like many other international processes involving travelling and meeting activity, the COVID-19 pandemic has also affected the process to elaborate an implementing Agreement under the Law of the Sea Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).  The process has been the subject of a number of previous blog posts (including here and  here). A fourth and last scheduled substantive session of the intergovernmental conference (IGC) aimed at negotiating the Agreement was supposed to have taken place in March 2020 in the UN Headquarters but has been postponed to a date yet to be defined by the UN General Assembly.

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Posted in Areas beyond national jurisdiction (ABNJ), Biodiversity beyond national jurisdiction (BBNJ), Environmental Impact Assessment (EIA), Marine biodiversity, Marine genetic resources, Strategic environmental assessment (SEA) | Leave a comment

EEZs in the Adriatic: challenges and opportunities in a semi-enclosed sea

By: Thomas Bickl

PDF VersionNCLOS Blog Bickl III_EEZs Adriatic

Matter commented on: EEZ declarations of Croatia and Italy

I. Introduction

This blogpost is going to discuss the implications of the EEZs of Croatia and Italy in the Adriatic with regard to the interests of and open issues with third States, hydrocarbon exploration and exploitation, maritime transport, fishing, and opportunities for offshore renewable energies.

The Adriatic Sea, a sub-sea of the Mediterranean, as a semi-enclosed sea previously accounted for three riparian States: Albania, Italy, and Yugoslavia. The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s has led to the establishment of four new littoral States: Croatia, Bosnia-Herzegovina, Montenegro, and Slovenia. Generally, the Adriatic’s eco-system is particularly vulnerable as its waters are shallow and the exchange or renewal of waters with the Ionian Sea through the relatively narrow Strait of Otranto is limited (Vidas 2013: 353; Blake and Topalović 1996: 4; see also Gačić et al 2001).

Fig. 1     Riparian States and main ports in the Adriatic (source: author; base map: d-maps.com)

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Lessons to be learned from OSPAR’s network of marine protected areas in areas beyond national jurisdiction, in light of the BBNJ negotiations

By: Bas Klerk

PDF versionNCLOS Blog_Bas Klerk

Matter commented on: BBNJ negotiations; lessons to be learned from OSPAR’s MPA regime in ABNJ.

I          Introduction

The first steps toward the adoption of an international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) were taken over fifteen years ago, with the establishment of the BBNJ Working Group by the UNGA. Today, the process is in its final phase as three out of four scheduled intergovernmental conferences (IGCs) have been completed, and the contours of the ILBI are becoming increasingly visible. However, the wait for ‘the once and future treaty’ (Tiller and others, 2019) will inevitably be a bit longer due to the ongoing pandemic, as IGC-4 has been postponed and not yet rescheduled. To keep the momentum going, President Lee decided to hold intersessional work. On area-based management tools (ABMTs) including MPAs, this will be done, rather innovatively, through the use of an online forum. This new form of negotiation will hopefully allow the delegations to cover enough ground so that the process can be concluded at IGC4 as planned.

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EU v. Turkey in the Eastern Mediterranean: a good moment to sponsor dispute settlement

By: Thomas Bickl

PDF version:NCLOS T Bickl Blog no fts EU-Turkey

Matter commented on: Maritime claims in the Aegean and Eastern Mediterranean; upcoming European Council 1/2 October 2020

I. Introduction

The situation in the Eastern Mediterranean is on the agenda of the meeting of the EU Heads of State and Government (European Council) on 1 and 2 October 2020. This paper looks into the international law issues surrounding the maritime disputes in the Eastern Mediterranean and the Aegean Sea and draws on the way forward for the resolution of the disputes involving Greece, Turkey and Cyprus.

Greece and Turkey do not have any agreement on a maritime boundary. Historically, the territorial status of the Dodecanese Islands in the south-eastern Aegean is governed by the 1923 Lausanne Peace Treaty (where Turkey ceded the Dodecanese Islands to Italy) and the Paris Peace Treaty between Italy and the Allied Powers from 1947 (Italy had to hand over the Dodecanese Islands to Greece) fixing the modern boundaries of Greece, which had become independent from the Ottoman Empire in 1832 (see e.g. Vassalotti 2011: 387-390, Van Dyke 2005: 64-67). Cyprus, which Great Britain had acquired from the Ottoman Empire in 1878, became independent in 1960. In 1974, Turkey invaded the north of the island following a coup d’état aiming at linking the island to Greece (Kalkan 2020: 169) leading to the establishment of the northern entity on the island only recognized by Turkey.

Fig. 1 Overlap of EEZ agreements and claims in the Eastern Mediterranean. Source: Yiallourides 2020

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The Sea Dominates the Law: Rise in Sea Level as a Grotian Moment

By: Bharatt Goel

Pdf version: Bharatt Goel_Blog post

Matter commented on: Sea level rise and law of the sea

The global rise in sea level has manifested a challenge to international law and opened a Pandora box of legal questions prompting the International Law Commission to include it in its long-term program of work. One such question pertains to the change in maritime jurisdiction and sovereignty of States, especially the low lying coastal and island States. Article 5 of the UN Convention on the Law of the Sea, 1982 [hereinafter, alternatively the Convention or UNCLOS] stipulates that a State’s maritime zones are determined by the normal low water-line along its coast i.e. baseline. Further, pursuant to article 47(1) of the Convention, the outermost geographical features are used as coordinates or basepoints to draw baselines of archipelagic States. With the help of these baselines and basepoints, all other maritime entitlements of a State are demarcated on the sketch board of maritime delimitation.  Continue reading

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Squaring the Oceanic Circle? On Regional Approaches to the Conservation of Marine Biodiversity in Areas beyond National Jurisdiction

By Vito De Lucia

Pdf version:Vito De Lucia Regional Governance BBNJ

Matter commented on: regional approaches to marine biodiversity conservation in ABNJ


The ongoing COVID-19 pandemic has determined the cancellation or postponement of a great many international meetings, including the suspension of all physical activities at the UN Headquarters in New York City. On 23 March, the UN building should have hosted the fourth – and last scheduled – substantive session of the intergovernmental conference (IGC) aimed at adopting a new treaty on marine biodiversity in areas beyond national jurisdiction (BBNJ). This session was formally postponed to a date yet to be defined by UN General Assembly Resolution 74/543 on 9 March 2020 (provisionally available as A/74/L.41). DOALOS however has kept busy behind the scenes and has recently released a very useful document (the Compilation) where it has compiled all the textual proposals countries (and observers) have been submitted following the invitation from the President of the IGC amb. Rena Lee that accompanied the release of the revised draft text in November 2019. A country-by-country compilation already existed, but the added value of this new document prepared by DOALOS is that it compiles all textual submissions on an article-by-article basis, greatly facilitating review and analysis. This pause in the negotiations, while it risks reducing the momentum of the negotiations, creates also a particularly propitious opportunity for reflections and commentaries on some of the central questions at stake. This post wishes to address the question of “international cooperation”, a question currently addressed by draft article 6 of the revised draft text. The key point of this discussion is the distribution of roles and competences to adopt conservation measures between the future BBNJ treaty and relevant global, sectoral and regional instruments, frameworks and bodies.

Global v. Regional Approach to the BBNJ Treaty

Throughout the negotiations, there have been two main ways to think about this question. There is a global approach, which considers as the natural outcome of the BBNJ process a global framework and the creation of a global BBNJ body with a strong mandate and with direct competence to adopt conservation measures, especially with respect to one of the four topics under negotiations,  area-based management tools (ABMTs), including importantly marine protected areas (MPAs). The groups of G77/China, of the Pacific Small Island Developing States (PSIDS), of the Alliance of Small Island States (AOSIS) and of the Core Latin American Group (CLAM), as well as most of the NGO participating as observers to the BBNJ negotiations have usually supported this global approach, in full or in part. By contrast, another group of countries such as Norway, Iceland, Russia, the Republic of Korea, Japan, China, the United States (countries with strong fisheries interests, strong institutions in their region, and an active Arctic interest) have historically favored a regional approach. The regional approach wants to avoid that the BBNJ treaty undermines regional and sectoral instruments and bodies that already operate and are competent to adopt measures within their respective mandates. During the PREPCOM phase, a third, middle-of-the-road approach was proposed by New Zealand, known as the hybrid approach. This approach gained immediately traction and still gathers much support, as there is certainly a need to approach the question of the distribution of competence in a diversified manner according to the topic of the Treaty, and even within the same topic. At the same time it is also evident to many delegations, as well as observers, that the effective governance of marine areas beyond national jurisdiction requires a strong participation of regional instruments and bodies, albeit within an overarching framework that should provide a “common goal or purpose”, as well as common principles that can be shared between the relevant bodies that will have direct competence to adopt conservation measures.

The New Proposal from Iceland

In this context, one particular textual proposal, submitted by Iceland as a comment on article 6 of the revised draft text, which addresses “international cooperation” (Compilation, p. 52), stands out. The proposal articulates in detail an interesting and constructive vision of regional implementation, by bringing significantly further, in the view of the present writer, existing “regional” submissions (such as Norway’s, whose earlier proposal Iceland explicitly builds upon), and builds an important bridge towards a framework of conservation that would integrate global common rules and principles and regional implementation. Iceland has consistently preferred a regional approach, whereby the BBNJ global framework would only put in place the necessary rules to facilitate coordination and cooperation among sectoral and regional instruments and bodies, but with decision-making remaining with the latter. This proposal reiterates Iceland’s strong preference for a regional approach (a preference underpinned by an equally strong reluctance towards the BBNJ negotiations, the need for a new agreement and the vision of a global management of marine biodiversity). However, this proposal takes a significant leap forward. The core of the proposal hinges on the idea of a “consultation process” that “should include all relevant bodies and international organizations that have a mandate to adopt conservation and management areas in the relevant region”, including relevant intergovernmental organizations such as the International Maritime Organization and the International Seabed Authority. (Compilation, p. 53, letter b). It also, interestingly, indicates that the consultation process shall be “formalized” in one of two ways: through the constitution of a formal international body, or more loosely through one of the participating bodies taking up the role of administrative coordinator (Compilation, p. 53, letter c).

The proposal also refers to cases where “no regional body with a mandate to establish conservation and management measures to protect biodiversity” exists, and suggests, reproducing the earlier Norwegian proposal, that in such situations relevant States “shall cooperate to establish such a body” (Compilation, p. 53, letter e). Here the expression “relevant States” includes both coastal States and States otherwise operating in the region. The central point, clearly, is to ensure a regional framework for implementation, whether regional bodies already exist or not in the particular region.

A Multiplication of Collective Arrangements?

The proposal by Iceland has arguably many merits. It appears to balance the need for an overall set of common rules and principles with the realities of regional and sectoral fragmentation. It also takes a pragmatic approach with respect to how to solve the question of the interaction (rectius: coordination and cooperation) between the BBNJ treaty and other relevant sectoral and regional instruments and bodies, a question so far mostly discussed in terms of ensuring that the BBNJ treaty will not undermine relevant instruments and bodies, in ways however yet to be firmly agreed upon. The key leap, however, is the proposal that such consultation processes “shall be formalized”, in one of the two ways illustrated. It is important that not all relevant details are addressed explicitly in the proposal (for example the issue of recognition), and the devils is, as always, in the details (for example of the formalization process; of tis institutional and normative outcome; of the relation between the BBNJ treaty and these new international organizations etc.). Nevertheless, the proposal deserves careful consideration.

Reading the proposal, however, it is difficult not to think immediately of the Collective Arrangement (CA) adopted in 2014 by the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) and the North-East Atlantic Fisheries Commission (NEAFC) for the governance of the North East Atlantic. I have discussed the potential role of the CA as a suitable model for the overall architecture of the future BBNJ treaty elsewhere (for example here and here), and the question before us now is whether Iceland envisions a multiplication of CAs to serve as a regionalized institutional framework that shall see to the implementation of the global rules and principles adopted under the BBNJ treaty, and perhaps also why it has not utilized the same language. Iceland is in fact a member of both OSPAR and NEAFC, so it will have had the CA in mind when considering a model suitable to articulate a regional approach to BBNJ governance that might function and that, importantly, might elicit broader consensus, in light of the obligation to formalize the process set out in the proposal. However, it must be noted that for the time being, the CA has failed to become fully operational as no organization other than NEAFC and OSPAR, which already cooperate through a Memorandum of Understanding, has entered into the CA, reducing its practical relevance.

The goal of the CA is very similar to the aim of the proposed consultation process, as the CA aims to become a collective and multilateral forum composed of all competent instruments, frameworks and bodies addressing the management of human activities in the marine areas beyond national jurisdiction of the North-East Atlantic (CA Agreement, Annex II). In other words, it is a framework aimed at integrating the regional, sectoral and global dimensions in a coherent arrangement for decision-making with the view to “help deliver” an ecosystem-based governance of the oceans, as OSPAR underlines in relation to the CA. The relevant normative framework that the CA internalizes as the basis of the cooperation, importantly, already open for the operationalization of a future BBNJ treaty, through the non-exhaustive list of “relevant binding and non-binding international instruments” contained in article 4(d) of the CA.

This envisioned structure and the vision of the CA is thus clearly similar to the consultation process proposed by Iceland. There are, however, also some difference. First, Iceland does not envision the consultation process to encompass fisheries bodies, as evident by the suggested article 6 bis, which would state, in the form suggested by Iceland, that the BBNJ treaty “does not apply to conservation and management of fish stocks” (Compilation, p. 57). Secondly, the CA operates as a forum for cooperation and coordination. Within a BBNJ context however, there would be specific common goals and principles that such CAs would need to relate to in some manner. Additionally, there would be a multiplication of CAs (or consultation processes) resulting from a specific set of rules and obligations – those proposed by Iceland for example – which are addressed at State parties to the BBNJ treaty, but that articulate a global vision that would be the common foundation for all regional arrangements to implement.

One question that can be asked is whether a global BBNJ body should be participating to these regional consultation processes, perhaps not as a decision-maker, but with an oversight or safeguard function. This might be a functional benefit at least in relation to one of the problems that any regional approach raises. Not all regions have in fact sufficient institutional capacity or the resources to structure it, and that may impair significantly their ability to carry out effective regional cooperation and their ability to implement the BBNJ treaty – hybridity, and a diversity of approaches for different regions may thus be necessary, and envisioning a role for a BBNJ body as participating institution in regional arrangements, or as the operating body there where none exist, might offer a suitable, adaptive workaround.

Another question is how to ensure that all the relevant instruments and bodies participate to the regional arrangements, a relevant issue especially for the global bodies such as the IMO and the ISA, which, besides their general resistance against the potential encroachment of the BBNJ treaty in their areas of competence, have also shown little interest, so far at least, with respect to the North East Atlantic CA.

A further point  to raise is arguably that any regional implementation cannot be thought without thinking about an ecosystem-based model of ocean governance – and indeed this is the purpose of the CA. If one thinks in terms of ecosystems, or ecoregions, however, not only the inclusion of fisheries management becomes paramount, but the inclusion of coastal States in one such consultation process or arrangement becomes potentially central. It would be a missed opportunity in fact if coastal States are not included as potentially relevant actors in a decision-making framework that, if seriously aiming at ecosystem-based governance, will have to inevitably encompass both areas beyond and within national jurisdiction. This interconnection, and the corresponding need for an active participation of coastal States in decision-making, has been already singled out under the rubric of adjacency during the BBNJ negotiations. In the context of a regional, ecosystem-based governance model, it would be simply a question of taking the next logical step, in order to adopt the perspective of ecosystems and ocean connectivity, and move past the ill-suited jurisdictional zoning enshrined in UNCLOS. One possible way to articulate this expanded governance arrangement, is through what I have called elsewhere Regional Ecosystem Organizations (REOs). The idea is only been expressed in preliminary terms, but an REO should have a “full mandate to implement an ecosystem-based conservation framework across all relevant jurisdictional zones” (p. 9). Importantly, an REO, while formalized in terms of its legal basis, would need to “be conceived as a fluid governance arrangement […] able to adapt its participatory base and its decision-making geometry to relevant oceanic and ecosystem circumstances,” (ibid.), which would mean also being able to accommodate the participation of coastal States as and when relevant for achieving effective ecosystem-based conservation. Further details would need to be considered and carefully articulated, including some “(con)federalist” aspects that will ensure willingness to participate by protecting minority views and localized implementation through mechanisms such as concurrent majority.


The pause in the BBNJ negotiations imposed by the ongoing COVID-19 pandemics, creates a propitious opportunity for reflections and commentaries on some of the central questions at stake. This post addressed the question of “international cooperation”, and of the distribution of roles and competences to adopt conservation measures between the future BBNJ treaty and relevant global, sectoral and regional instruments, frameworks and bodies. Iceland has in this respect submitted a very interesting proposal for a balanced framework for the governance of marine biodiversity in areas beyond national jurisdiction that shall ensure that a) the new BBNJ treaty sets global standards, rules and principles; b) the BBNJ agreement will find effective implementation at a regional level, through a consultation process; c) the focus of the negotiators shift from the question of not undermining to mechanisms for coordination and cooperation. It seems evident that Iceland had in mind the Collective Arrangement that is already in place in the North East Atlantic as a legal mechanism to foster cooperation among all relevant sectoral and regional instruments and bodies for the implementation of an ecosystem-based conservation. In that respect the Icelandic proposal seem to suggest a multiplication of Collective Arrangements, an idea that has been discussed in some recent publications by the present writer both as a general model for the institutional architecture of the BBNJ treaty, and for the Arctic region more specifically.

The Icelandic proposal has many merits, though it is unclear whether it will gather significant support on the part of all those delegations that have consistently supported a strong role for regional instruments and bodies, such as Norway, the Russian Federation, the United States, Japan, the Republic of Korea, in light of the suggested obligation to formalize the envisioned consultation process. By contrast, this same obligation is likely to elicit the support of those observer NGOs, such as WWF, that have long stressed the importance of an enhanced regional cooperation regime for the implementation of the BBNJ global standards, although with a strong oversight role for global BBNJ institutions. The next step perhaps would be to imagine Regional Ecosystem Organizations that, while formalized in terms of their legal basis, would be able to be adaptive in terms of governance geometry and participation to decision-making. This would be one way to re-imagine international law in the Anthropocene as a law that “becomes-with” the radically complex ecological circumstances within which it operates. The Icelandic proposal offers an excellent opportunity in this respect, in this pause of the negotiations, to shift significantly perspective and raise the bar of what can be accomplished.


This post may be cited as: Vito De Lucia, “Squaring the Oceanic Circle? On Regional Approaches to the Conservation of Marine Biodiversity in Areas beyond National Jurisdiction” (May 9, 2020), on-line:Vito De Lucia Regional Governance BBNJ

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The Application of Teachings by the International Tribunal for the Law of the Sea

By: Sondre Torp Helmersen

PDF Version: S T Helmersen Blog post

Matter commented on: teachings by the ITLOS

This blog post is based on an article in (2020) 11 Journal of International Dispute Settlement p. 20-46, which can be accessed through the following link: https://academic.oup.com/jids/article-abstract/11/1/20/5715401

I. Introduction and methodology

How international judges use academic texts is a topic that attracts a small but steady degree of attention from the international legal academy. This blog post and the related article look at the International Tribunal for the Law of the Sea (ITLOS), an institution that has not yet been the subject of such analysis.

This blog post and the related article focus on the role of teachings in answering specific legal questions that come before an international tribunal. Teachings also have other functions in international law. They help systematise the law and can present broader criticisms and reflections on the law’s history and future development. Examining these functions of teachings would require a methodology different from the one used here.

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CJEU judgement on Slovenia v Croatia: What role for international law in EU-accession dispute settlement?

By: Thomas Bickl


Matter commented on: CJEU judgement on jurisdiction Case Art. 259 TFEU Republic of Slovenia v Republic of Croatia (C-457/18), 31 January 2020

I. Introduction

With regard to the Case under examination here, the Republic of Slovenia brought infringement proceedings against the Republic of Croatia under Article 259 TFEU before the Court of Justice of the European Union (CJEU) on 13 July 2018 (C-457/18). In short, Slovenia claimed that Croatia violates its obligations to respect EU law by refusing to implement the arbitration award on the maritime and land border between Croatia and Slovenia issued on 29 June 2017. To that end, an Arbitration Agreement between the Republic of Croatia and the Republic of Slovenia had been concluded on 04 November 2009 in the course of Croatia’s EU accession negotiations following a blockade of the Republic of Slovenia on the grounds that documents submitted by the Republic of Croatia during the negotiations prejudiced the definition of the disputed common State border.

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Posted in CJEU, Law of the Sea Convention | 1 Comment