Izvorni znanstveni članak
Consolidation of legal principles on maritime delimitations and Slovenian ''White Paper'' of 2006
Vladimir-Đuro Degan
orcid.org/0000-0001-6884-1189
; Jadranski zavod HAZU, Zagreb, Hrvatska
Sažetak
In this article is first discussed the case of maritime delimitations between Barbados and Trinidad and Tobago, decided in 2006 within the Permanent Court of Arbitration. That was the first case unilaterally initiated by Barbados in pursuance of Part XV of the 1982 Convention concerning settle ment of disputes. The parties constituted an arbitral tribunal in accordance with Annex VII of the Convention.
In the western part of the delimitation area, the matter was of continental shelf and EEZ between opposite coasts of the parties. The Tribunal dismissed the claim for shifting from median line in that part, in order to recognize the traditional fishing of ''flyingfish'' by Barbadian fisherfolk, allegedly dating since the 17th century. That allegation proved to be false. So the Tribunal traced a simple equidistance line in
that area.
In the Atlantic part, the matter was of delimitation of the EEZ up to 200 miles, and of the continental shelf even beyond that distance. The Tribunal finally established the border of the parties as an equidistance line through out, except for a modest adjustment at its eastern end in favour of Trinidad and Tobago, because of its significantly longer relevant coast. That line, as traced by the Tribunal, intersected the maritime boundary established by the 1990 Treaty between Trinidad and Tobago and Venezuela. On that way it did not go longer than 200 miles distance.
What is of far-reaching importance, the Tribunal has in this Award accomplished a synthesis of principles, rules, criteria, factors and practical methods from earlier jurisprudence, articulating them in the context of a consistent process of maritime delimitations to be followed in practice. This synthesis will be of practical use to States in seeking their agreement in good faith, without referring to impartial
bodies.
The second part of this paper is dedicated to the still unsettled dispute in maritime areas in the northern Adriatic, issued from the brake-up of the Yugoslav Federation. In 2006 the Slovenian Ministry of Foreign Affairs published as its official document ''White Paper on the Border between the Republic of Slovenia and the Republic of Croatia''.
This author finds that Slovenia's claims in respect to Croatia are inconsistent with not only the customary law of the sea, but also with its commitments from the 1982 UN Law of the Sea Convention, as its treaty obligations. The respective rules which will be quoted here codify customary law, and all of them reflect the basic rule on entitlement of maritime areas that the land dominates the sea:
(i) Slovenia's claim for its exit to the high seas in the physical sense, as allegedly existing on 25 June 1991, is inconsistent with its obligation from Article 2(1) of the 1982 Convention. That provision, which confirms an old customary legal rule, provides that: ''The sovereignty of a coastal State extends, beyond its land territory and internal waters... to an adjacent belt of the sea, described as the territorial sea''. On the critical date of proclamation of independence both by Slovenia and Croatia, it was Croatia which ''succeeded'' from the former SFRY its territorial sea in frontal projection from its coastal facade in western Istria.
(ii) Slovenia's claim to its own continental shelf is inconsistent with its obligation from Article 76(1) of the 1982 Convention, which provides that: ''The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout natural prolongation of its land territory...''. Hence, on 25 June 1991 it was Croatia which acquired ipso facto the rights over the continental shelf in the Adriatic Sea. At the natural prolongation of its land territory, no third State can claim its own shelf. Due to its unfavourable geographical position Slovenia is not entitled to the continental shelf on its own.
(iii) Equally, the assertion that all waters in the Bay of Piran consist of internal waters of Slovenia alone, is in violation of Article 10 of the 1982 Convention. The matter is here of a pluristatal bay in which Croatia is too entitled to the territorial sea off its coast in it.
By these obstinate and protracted claims, devoid of a valid legal basis, Slovenia is also in disrespect of its obligation as laid down in Article 300 of the 1982 Convention, according to which ''States Parties shall fulfill in good faith the obligations assumed under this Convention...''.
In addition, its claims which it bases on ''historic rights'' deviate from this concept in general international law. Historic rights can appear only after many years of peaceful exercising of exclusive jurisdiction by the respective State, without protests from other States. In the areas which Slovenia claims on this ground it has never exercised its exclusive jurisdiction. Up to the median line, the jurisdiction is still performed by Croatian State organs. Finally, Croatia has never stopped protesting against Slovenia's unlawful claims.
Ključne riječi
maritime delimitations; boundaries at sea; territorial sea; continental shelf; exclusive economic zone; fishing rights; historic title; Slovenia; Croatia;
Hrčak ID:
16594
URI
Datum izdavanja:
1.8.2007.
Posjeta: 1.479 *