Naslov
Razgraničenje teritorijalnog mora između Hrvatske i Slovenije u sjevernom Jadranu (Piranski zaljev)
(Delimitation of territorial sea between Croatia and Slovenia in North Adriatic (Piran Bay))

Autori
Turkalj, Kristian

Izvornik
Zbornik Pravnog fakulteta u Zagrebu (0350-2058) 51 (2001), 5; 939-979

Vrsta, podvrsta i kategorija rada
Radovi u časopisima, članak, znanstveni

Ključne riječi
pravo mora; međunarodno pravo; razgraničenje teritorijalnog mora
(law of the sea; international law; delimitation of territorial sea)

Sažetak
The interest in the legal issue of how to delimit the territorial sea in the North Adriatic between Croatia and Slovenia was initiated by proclamation of in- dependence of the Republic of Croatia and the Republic of Slovenia and conse- quently by the necessity to determine boundaries of the newly formed States. Two neighbouring States (Croatia and Slovenia) have, on many occasions, expressed their willingness to solve the outstanding delimitation question by rules of inter-national law. However, both States have interpreted applicable rules of interna-tional law rather differently, and expressed opposite views regarding the manner in which maritime boundaries should be defmed in accordance with international law. Therefore, this article hopes to give some answers regarding the interpreta-tion and application of relevant rules to the particular situation of the North Adriatic and by doing that it will try to give contribution to crystallization of relevant legal institutes. While delimitation of maritime boundaries is politically a highly sensitive process, its legal dimension requires the application of principles and rules of international law to the particular čaše. In applying these rules and principles, as well as interpreting them, it is necessary to analyze the historical background of relevant rules, examine States' practice in their application and analyze judgements of international judicial authorities. Also, one must be thor-oughly familiar with the doctrine of international law relevant for maritime delimitation. In case when two States want to regulate their mutual relations by applying the rules of international law, one of the first issues that arises is indeed the issue of applicable law. Taking into account the sources of international law, the ansvver should be sought in those rules that are binding for both coastal States. Delimitation of the territorial sea, today, is regulated by conventional rules as well as by customary law. Conventional rules are included in the 1982 Convention on the Law of the Sea (LOSC). Customary rules are not in written form, but they are not different from conventional rules regarding the delimitation of the territorial sea. Therefore, the application of customary rules produces the same result as the application of conventional rules. There are three fundamental provisions which are, directly or indirectly, relevant for the delimitation of territorial sea. These provisions are Articles 2, 3 and 15 of the LOS Convention of 1982. Art. 2 of the LOSC gives every State the right to the belt of the sea adjacent to its coast, that is its territorial sea. Art. 3 of the LOSC sets the limit of States' right to establish the breadth of its territorial sea. Through these two provisions, international law sets the framework and limits for the establishment of sovereignty over the ocean space, relating the right over territorial sea to sovereignty over land areas. That is to say, for a State to have sovereignty over part of the sea, that part of the sea has to be adjacent to its land, i.e., it has to be its pertinence. While Articles 2 and 3 set out the general international legal framework for the establishment of the territo-rial sea, Art. 15 of the LOSC regulates the way in which delimitation should be carried out, i.e., the method of delimitation itself. The rule embodied in Art. 15 specifically mentions "agreement" by which States are in a position to reach a compromise solution. Negotiation possibilities of the States are wide and they do not have to be exhausted only by delimitation. The necessity of respecting the rules that constitute jus cogens is the only restriction of the negotiation freedom for conclusion of an agreement. Through an agreement it is possible to create such a kind of regime on the sea that would contribute to legal safety and to reali-zation of interests of citizens of both States regardless of where the maritime boundary lies. For example, it is possible to form a joint fishing area, so that a possible controversy over delimitation of maritime boundaries would not have a negative effect on fishing activities. Also, it is possible to agree on even more liberal regime of transit than innocent passage through the territorial sea, as pro-vided under the LOSC. The States' practice shows that the method of equidistance is the most suitable method for delimitation of the territorial sea. The practical value of this method is that it can be used in almost 42 every situation. Regarding the special cir- cumstances it should be mentioned that, so far, they referred to particular physi-cal forms, like islands on the wrong side of the delimitation line, complex geographical configurations, navigation lanes, while economic interests and the po-pulation siže were not accepted by the judicial authorities as the circumstances relevant for delimitation. The International Court of Justice in the Jan Mayen Čaše observed that "the attribution of maritime areas to the territory of a State, which, by its nature, is destined to be permanent, is a legal process based solely on the possession by the territory concerned of a coastline". Finally, regarding the settlement of this outstanding delimitation question one could say that if States concerned present their respective legal arguments and if both claim that their arguments are justifiable by international law, there is nothing more natural than to the forward such legal question to the relevant judicial authority. It is most logical and practical to solve legal problems by legal me-ans. But if one of the States is not willing to follow that path, it may indicate its lack of confidence in its own legal argumentation. Generally speaking, judicial settlement of disputes has not, so far, and probably will not in the future, harmed the reputation of any State involved. Moreover, using means of peaceful settlement (one of which is judicial settlement) is according to the UN Charter, obliga-tory for ali UN members and it is the most important role (purpose) of modern international law.

Izvorni jezik
Hrvatski

Znanstvena područja
Pravo, Politologija, Povijest

POVEZANOST RADA