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Vladimir-Đuro Degan orcid id ; Jadranski zavod HAZU, Zagreb, Hrvatska

Puni tekst: hrvatski pdf 374 Kb

str. 139-157

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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
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
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
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.

Ključne riječi

justice, equity, law, equitable principles, equity infra legem, praeter legem, contra legem, proceedings ex aequo et bono, judge in the role of legislator

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