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Authors

Damir Arnaut

Document Type

Article

Abstract

Territorial sea delimitation, while one of the most intensely debated issues prior to World War I, has largely been delegated to the sidelines of ocean and coastal law. Modem students of maritime delimitation mostly concern themselves with the delimitation of the exclusive economic zone (EEZ) and the continental shelf, and few, if any, significant diplomatic problems associated with territorial sea boundaries have been recorded in the last several decades. Indeed, while the literature on the delimitation of the EEZ and the continental shelf is abundant and readily available, questions concerning the territorial sea delimitation are seldom raised. The reasons for these phenomena are not overly surprising. Primarily, in the last twenty-five years there have been few important judicial or arbitration case on the territorial sea delimitation. Instead, the period has been dominated by instances of negotiated territorial sea delimitation between the concerned parties. Also, delimitation of the territorial sea is a relatively simple affair, at least when compared to the EEZ or continental shelf delimitation. The modest twelve mile width of the territorial sea, and the fact that the distorting effects of equidistance lines are "comparatively small within the limits of territorial waters," both allow for a relatively smooth process. Finally, the EEZ and the continental shelf delimitation is largely governed by the customary law that, as courts have defined it, is based on the rule of equitable principles and equitable solution. The territorial sea delimitation, on the other hand, is governed by the equidistance and the special circumstances rule which is embodied in the United Nations Convention on the Law of the Sea (LOSC), and has been accepted without much controversy since the first territorial sea convention. Since the break up of the Soviet Union and the former Yugoslavia, however, there has been a dramatic rise of instances involving the need for the delimitation of territorial seas. The questions regarding such delimitation have emerged largely due to the fact that although land boundaries between the republics of these federal states were firmly established in most cases, delimitation was never carried out at sea. Problems regarding the delimitation of the territorial seas within the former Soviet Union have arisen in the Baltic, the Black Sea, as well as the Caspian Sea. Nonethe less, despite of its relatively small size, the former Yugoslavia has produced some of the most contested territorial sea delimitation problems in recent history. Croatia, in particular, having the longest coastline of all the former Yugoslav republics, has contested its territorial seas with all of its former republican neighbors-Bosnia, Slovenia, and Serbia-Montenegro. While the Croatian dispute with Bosnia was largely solved in 1999, and the boundary negotiations with Serbia-Montenegro have been restarted in recent months, Croatia's maritime dispute with Slovenia in the Bay of Piran and further in the Bay of Trieste has been the most controversial bilateral issue between the two countries ever since their independence in 1991. Despite the increased activity aimed at resolving this problem in the past three years, which included an agreement between the two countries' prime ministers, a solution is not in sight. Unless a negotiated solution satisfactory to both countries is reached soon, the issue will probably have to be submitted to an international judicial or arbitration body. This article makes a contribution by offering a detailed study of this unusual case of the territorial sea delimitation, and by proposing several solutions for solving this problem through friendly, bilateral negotiations in order to avoid a costly and protracted dispute before an independent third body, an option that, as will be shown, would not benefit the interests of either country.

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