Abstract
This Chapter outlines the legal foundations related to marine spaces and the identification of maritime borders. The toolbox of maritime law and the legal–political developments in the Adriatic with regard to Slovenia and Croatia prior to 2008 are salient issues. The outline will familiarise the reader with various maritime zones and the main provisions of the United Nations Convention on the Law of the Sea (UNCLOS), the quasi-constitution for the oceans entailing the principles of freedom of navigation, territorial sovereignty, and common heritage of mankind. There is a special focus on the Mediterranean in general and the Adriatic in particular. The “lawfare” between Croatia and Slovenia (and the EU level) over maritime zones ahead of the 2008/2009 deadlock during the EU accession negotiations phase is a prerequisite for the subsequent stages of the border dispute. This chapter also sheds light on the methodologies used in maritime delimitation and rounds off with a brief survey of maritime case law developed by international courts and tribunals.
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Notes
- 1.
The Philippines initiated proceedings against China in January 2013. China, however, refused to take part in the arbitration and to accept the award holding that the Tribunal lacked jurisdiction and that the request for proceedings was inadmissible (PCA Final Award 2016: 3–5). It must be noted, however, that non-appearance of one of the parties cannot stall the proceedings and that the judgement is binding also on the non-appearing party (see e.g. Tanaka 2018b: 115).
- 2.
- 3.
- 4.
- 5.
International straits and archipelagic waters are neglected here.
- 6.
“Recognising the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”
- 7.
Reference is to be made here to the works of the Dutch scholar Hugo Grotius. His Mare Liberum from 1608 may be considered the nucleus of the freedom-of-the-seas movement and momentum. For an English translation of the Latin original and an introduction to the background of the Dutch East India Company, see Feenstra (2009).
- 8.
Emmerich de Vattel, in his 1758 book Le droits des gens, outlines the concept that in coastal waters, the same jurisdiction may apply as on land. For an English translation, see De Vattel (2003).
- 9.
Croatia took over the system of straight baselines from the SFRY. The baseline section between the islands of Korčula and Hvar, however, appears to cut off Bosnia-Herzegovina, a successor State to the SFRY like Croatia, from its access to the high seas; see also Sect. 3.1.2. The matter is discussed in more detail in Sect. 6.3.5.
- 10.
- 11.
Tanzania and Mozambique concluded a bilateral agreement in 1988 drawing a closing line over Ruvuma Bay and apportioning the internal waters following the median or equidistance line (Mlimuka 1994: 399–402). Iran and Pakistan have, in several steps, identified and closed certain sections of Gwatar Bay subsequently agreeing on a delimitation of the internal waters (Insolia 2019: 229).
- 12.
See also the dissenting opinion of judge Oda in the 1992 Land, Island and Maritime Frontier Dispute (Gulf of Fonseca) ICJ judgement stipulating that the Gulf was a historic bay with El Salvador, Honduras, and Nicaragua continuing condominium sovereignty (co-ownership) over the Bay safe for a three nautical mile belt of national sovereignty internal waters along the respective coasts. Judge Oda argued that there was no such thing in international law as joint internal waters, as internal waters exclusively belonged to one State, and that a pluri-State bay did not exist either in international law (Dissenting Opinion Judge Oda, Gulf of Fonseca judgement 1992: 745–7, paras 23–26).
- 13.
The delicate question is, to what extent. Historically, there is a group of island States (such as Fiji, Western Samoa, or Greece) in favour of maximum claims for island-related marine zones. Conversely, other States (such as African States or Turkey) seek to limit the maritime claims related to islands (Van Overbeek 1989: 258–61).
- 14.
Croatia and Montenegro submitted a declaration to that end at the time of ratification, see Declarations and Statements regarding the application of UNCLOS at https://www.un.org/depts/los/convention_agreements/convention_declarations.htm; Albania has not submitted a declaration, but is operating the notification requirement (see US Department of Defence Freedom of Navigation Report 2018). Other States requiring prior notification for warships include Bangladesh, Denmark, Egypt, Estonia, India, Malta, and South Korea. Prior authorisation is required by States such as Brazil, China, Iran, Pakistan, the Philippines, Poland, the United Arab Emirates, and Vietnam (see Declarations UN website above).
- 15.
Albania, Croatia, Italy, Slovenia, and Serbia and Montenegro concluded an agreement under the International Maritime Organisation (IMO) on designated sea lanes in the Adriatic on 23 March 2003. The IMO’s Maritime Safety Committee has subsequently adopted a traffic separation scheme for, inter alia, the Gulf of Trieste and the Channel of Otranto (IMO, COLREG.2/Circ.54, Annex III, 28 May 2004).
- 16.
See UN, Table of Claims to Maritime Jurisdiction, https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf.
- 17.
Spain and France only proclaimed an EEZ along their non-Mediterranean, i.e. North Sea or Atlantic coasts, in 1976 and 1977, respectively, whilst a few Northern African States have claimed modest EEZs, albeit without implementing legislation and without affecting the interests of neighbouring States (see Grbec 2015: 74–5).
- 18.
It is useful to note that the following fishing rights apply within the framework of the EU Fisheries Policy (CFP): In waters under territorial sovereignty or jurisdiction of the Member States, in principle any fishing vessel from any Member State is allowed to fish within 200 nm (EEZ), except in coastal waters (12 nm) where Member States may decide to restrict the access to other fishing vessels who traditionally fish in those waters. Such restrictions are without prejudice to the existing arrangements as laid down in Annex I of EU Regulation 1380/2013 (information obtained from the legal unit of European Commission DG MARE, 18 July 2018; see also Schatz 2019).
- 19.
However, Italy and Greece are reported to have signed an agreement on 9 June 2020 on a respective EEZ in the Southern Adriatic/Ionian Sea in fact extending the bilateral 1977 continental shelf delimitation to the water column. A further agreement apparently seeks to provide Italian fishing vessels access to Greek territorial waters (IBNA News, 09-06-2020). The two parties have notified the European Commission to that end with a view to the EU Fisheries Regulation 2013/1380 (information obtained by the European Commission Directorate General MARE, 16-06-2020) regulating mutual access to the territorial waters. Nevertheless, amendments to this regulation are subject to agreement by the co-legislators EU Member States and European Parliament.
- 20.
Yugoslavia played a solid role during UNCLOS III. When the site for the proposed Tribunal of the Law of the Sea (ITLOS) was voted in 1981, no candidate received an absolute majority in the first ballot. The result in the second ballot was Federal Republic of Germany 78, Yugoslavia 61. The Seabed Authority went to Jamaica (76 votes) ahead of Malta with 66 votes (Oxman 1982: 14).
- 21.
Slovenia has outlined its continental shelf claim in detail only during the arbitral proceedings in 2013/2014. The Tribunal, however, found that Slovenia is not entitled to a CS (see PCA Final Award 2017: 348–354, paras 1085–1103).
- 22.
- 23.
For an illustrated discussion of the criteria, see Tanaka (2015: 139–42).
- 24.
For the submissions to the CLCS, see https://www.un.org/depts/los/clcs_new/commission_submissions.htm.
- 25.
The actual compromise proposal had been secretly worked out by Ireland and Spain representing the two adversarial schools of thought (Oxman 1982: 14–5).
- 26.
ITLOS was newly created by UNCLOS and became operational in 1996. It took some time to establish itself as an alternative to the ICJ or arbitration. As the first ITLOS President would jokingly tell to visitor groups: “The judges would meet once a week for breakfast then going to the letter box together to see whether a case has arrived”.
- 27.
Prof. Budislav Vukas, a Croatian national, was an ITLOS founding-member judge 1996–2005, https://www.itlos.org/the-tribunal/members-of-the-tribunal-since-1996/. In the Croatia–Slovenia arbitration, Vukas served as arbitrator appointed by Croatia until July 2015 (see also PCA Final Award 2017: 47, para 147).
- 28.
United Nations, Division for Ocean Affairs and the Law of the Sea, Declarations and statements, https://www.un.org/depts/los/convention_agreements/convention_declarations.htm.
- 29.
The parties asked the Court to decide on the delimitation of the continental shelf. The Court did not produce a ruling as such as the FRG had not yet ratified the Geneva Convention (a predecessor to UNCLOS), but indicated certain factors for consideration when deciding on the natural prolongation of the land territory under the sea (ICJ, North Sea Continental Shelf, Overview of the Case, https://www.icj-cij.org/en/case/52).
- 30.
The Tribunal was asked by the parties to delimit the continental shelf boundary in the English Channel/La Manche west of the Greenwich Meridian Line. The main issues were the effect of the Channel Islands and of the Scilly Isles for the Atlantic region (see Arts. 1 and 2 of the Arbitration Agreement, Reports of International Arbitral Awards, vol. XVIII: 5).
- 31.
Canada and the USA tasked the Court with the delimitation of the continental shelf and fisheries zone in the Gulf with adjacent and opposite coasts. The Court produced a line referring to geographical factors (ICJ, Gulf of Maine, Overview of the Case, https://www.icj-cij.org/en/case/67).
- 32.
Malta and Libya asked the Court to determine the continental shelf boundary. The opposite coasts of both States are less than 400 nm apart. Although Libya was not party to the Geneva Convention on the Continental Shelf, both parties indicated to the Court that they would respect its provisions and also those of the UNCLOS which had not entered into force yet (ICJ, Continental Shelf, Overview of the Case, https://www.icj-cij.org/en/case/68).
- 33.
Canada and France tasked the Tribunal with delimiting the sea border between Canada and St. Pierre and Miquelon, a French overseas collectivity some 16 nm off the Canadian coast of south-eastern Newfoundland (Reports of International Arbitral Awards, vol. XXI, 1992: 271–4).
- 34.
Denmark had instituted proceedings against Norway for the Court to delimit both countries’ fishing zones and continental shelf between the east coast of Greenland and the Norwegian island of Jan Mayen. Both parties had overlapping 200 nm claims for an area comprising some 72.000 km2 (ICJ, Maritime Delimitation between Greenland and Jan Mayen, Overview of the Case, https://www.icj-cij.org/en/case/78).
- 35.
Eritrea and Yemen asked the Tribunal to determine the maritime boundaries between the two States. The identification of the respective territorial sovereignty over the islands had constituted the First Phase (Reports of International Arbitral Awards, vol. XXII, 1999: 336–7).
- 36.
Qatar initiated proceedings against Bahrein for the Court to determine territorial sovereignty over an island, sovereign rights over two shoals, and the maritime boundary between the two States (ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrein, Overview of the Case, https://www.icj-cij.org/en/case/87).
- 37.
Cameroon instituted proceedings against Nigeria with regard to sovereignty over the Bakassi Peninsula (a part of which was occupied by Nigeria), the delimitation of the joint maritime border, and the terrestrial border at Lake Tschad (ICJ, Land and Maritime Boundary between Cameroon and Nigeria, Overview of the Case, https://www.icj-cij.org/en/case/94).
- 38.
Guyana initiated arbitral proceedings against Suriname concerning the maritime boundary and the alleged disrespect of the maritime territorial sovereignty of Guyana on the part of Suriname (Reports of International Arbitral Awards, vol. XXX, 2007: 12).
- 39.
Romania instituted proceedings against the Ukraine with regard to the delimitation of a single maritime boundary in the Black Sea including the continental shelf and the EEZ (ICJ, Maritime Delimitation in the Black Sea, Overview of the Case, https://www.icj-cij.org/en/case/132).
- 40.
The third stage of the delimitation process, however, appears to have become operational as early as in the Gulf of Maine case in 1984 (see Sect. 3.2.2.1) when the Court also “checked for the equitableness of the designated boundary” in terms of avoiding any negative environmental or economic repercussions for the population of the two countries (Ioannides 2020: footnote 8).
- 41.
Lathrop (2018: 221) posits that the construction of the provisional equidistance line as the starting point of the three-stage approach merits particular attention. He observes that the provisional equidistance line must be “a solid foundation from which to consider […] the effect of coastal irregularities and other features”.
- 42.
Evans (2018: 233) talks of “the formalism of the three-stage approach” with regard to the role of relevant circumstances at stages two and three of that approach.
- 43.
Bangladesh instituted proceedings against Myanmar for the Tribunal to delimit the maritime boundary with regard to the territorial sea, the EEZ, and the continental shelf (ITLOS 2012: 9–10, paras 1–4).
- 44.
Nicaragua filed proceedings against Colombia concerning territorial sovereignty and maritime delimitation mainly around the San Andrés Archipelago (ICJ, Territorial and Maritime Dispute, Overview of the Case, https://www.icj-cij.org/en/case/124).
- 45.
Peru initiated proceedings against Chile seeking the delimitation of the territorial sea and the EEZ (ICJ, Maritime Dispute, Overview of the Case, https://www.icj-cij.org/en/case/137).
- 46.
Ghana and Côte d’Ivoire, at the initiative of Ghana, submitted a joint request to ITLOS to determine their single maritime boundary (territorial sea, EEZ and continental shelf) in the Atlantic (Special Agreement, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/X001_special_agreement.pdf).
- 47.
Costa Rica instituted proceedings against Nicaragua asking for the delimitation of the single maritime boundary (territorial sea, EEZ, continental shelf) in the Caribbean, Maritime, and Land Boundary delimitation, Overview of the Case, https://www.icj-cij.org/en/case/157).
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Cataldi, Dr. Giuseppe. Professor for International Law, Naples University. President of the International Association of the Law of the Sea. Phone interview, 18 July 2018.
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Senior Croatian civil servant. Zagreb, 25 January 2017.
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Senior Slovenian civil servant. E-mail interview, 13 June 2017.
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Bickl, T. (2021). Marine Spaces and Maritime Delimitation. In: The Border Dispute Between Croatia and Slovenia. Contributions to Political Science. Springer, Cham. https://doi.org/10.1007/978-3-030-53333-5_3
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