Compulsory inter-state arbitration of territorial disputes.

• Author: Vidmar, Srecko
• Position: Slovenia-Croatia

Just or unjust, the decision of the arbiters will save the credit, the honour, of the contending party.--Jeremy Bentham (1)

1. INTRODUCTION

   On June 25, 1991, Slovenia and Croatia declared their independence from Yugoslavia. The two former republics were welcomed as independent states by the international community on January 15, 1992, when the European Community (EC) extended its official recognition. (2) The two richest and most developed former republics followed markedly different paths during the decade following their independence. Slovenia's steady investment in transportation and information infrastructure, modernization of its economy, and rebuilding of its civil society earned it praise as "poster child" (3) of post-Communist development. On the other hand, Croatia, led by President Franjo Tudjman, was economically stagnant and diplomatically isolated following a bloody civil war and its involvement in the Bosnian conflict.

   The two neighboring states professed their friendship and closeness during the 1990s, but the regional war and the international ostracism resulting from Croatian government policies had the effect of freezing all negotiations between the two states regarding the final demarcation of their boundary. This diplomatic stalemate resulted in frequent, and sometimes violent, skirmishes between Slovenian fishing boats and the Croatian Navy in the Bay of Piran.

   President Tudjman's death in December 1999, (4) was followed by a resounding defeat of his party in the subsequent parliamentary elections. The new coalition government was welcomed with renewed enthusiasm both by the people of Croatia and by the international community. (5) In addition to dealing with a depressed economy and a corrupt civil service, the new government led by President Mesic and Prime Minister Racan immediately sought to re-establish Croatia's ties to Western Europe, (6) and, closer to home, to resolve the outstanding boundary questions with Slovenia, most notably the maritime delimitation of the Bay of Piran (the Bay). (7)

   The Bay is located on the extreme northern end of the Adriatic Sea. As the map in the Appendix indicates, the adjacent coasts of the Bay belong to Croatia on the south, and Slovenia on the north. The Bay's small size (it is less than 10 km wide at its mouth) does not reflect its importance in maritime delimitation of the wider geographical area known as the Gulf of Trieste. The peculiar geographic features of the Gulf of Trieste, bounded by Italy, Slovenia, and Croatia, create an unusual triangular problem of maritime delimitation. A straightforward application of the equidistance principle (8) results in enclavement of the Slovenian territorial sea between the territorial waters of Italy and Croatia, leaving Slovenia with no extended economic zone and, more importantly, no direct access to the high seas.

   While international law provides for freedom of peaceful navigation and access to the high seas, (9) the government of Slovenia has insisted on a delimitation that would result in its territorial waters directly opening to the high seas. As a small, but commercially active, state, (10) Slovenia views sovereign control over the access to the high seas as both an economic and military necessity. Given the geography of the Gulf of Trieste, the only way to achieve the result desired by Slovenia without disturbing the "external" frontiers of the former Yugoslavia and Italy, is to delimit the Bay so that about twenty percent of its area remains Croatian territorial sea, and the rest of it falls under Slovenian territorial sovereignty. This delimitation would give Slovenia an aperture to the high seas about five kilometers wide.

   Recently, the two governments were involved in close consultations on various levels, political and legal, trying to resolve the problem of maritime delimitation. Finally, on July 20, 2001, the prime ministers of the two countries initialed a draft agreement that satisfied Slovenian desires, as described above. (11) While the Parliament of Slovenia immediately ratified the agreement, the Croatian Parliament refused to give its approval, citing abuse of power by the Prime Minister in ceding territory without the constitutionally required procedures. The Croatian government, frustrated with the process, called on the two states to submit to binding third-party arbitration to finally settle the dispute.

   Slovenia has, so far, refused the offer to arbitrate, hoping that international pressure on Croatia will lead to its ratification of the agreement. In this paper, the author argues that Slovenia and Croatia, and indeed all states, should accept international arbitration as an effective method for resolving boundary delimitation disputes. The Charter of the United Nations requires that states settle their disputes by peaceful means. (12) The Charter, however, does not place an affirmative duty on states to actually settle their disputes. Keeping in mind the stated goal of the United Nations (UN) to "save succeeding generations from the scourge of war," (13) and realizing that unresolved territorial disputes tend to lead to armed conflicts, the UN should take affirmative steps to craft an international dispute resolution infrastructure for settling territorial disputes before they threaten international peace and security.

   International arbitration has been a successful method for solving territorial disputes for centuries. In Part II of this paper, the author gives an historical overview of arbitral practice, especially as it relates to boundary disputes. In Part III, following a survey of territorial disputes since the Second World War, the author analyzes the aspects of international arbitration that continue to make it a preferred method of territorial dispute resolution, and proposes a multilateral agreement under the auspices of the UN, under which states-parties would agree to compulsory arbitration of their territorial disputes. Finally, the proposed dispute resolution mechanism is put to the test in Part IV where the author applies it to the problem of the delimitation of the Bay.

2. ARBITRATING TERRITORIAL DISPUTES--A HISTORICAL NOTE

   The practice of arbitration significantly predates judicial settlement in international relations, as opposed to municipal law. According to Greek mythology, the dispute over possession of the Corinthian territory between Poseidon, god of the sea, and Helios, the sun-god, was settled by Briareus, the hundred-handed giant acting as an impartial arbitrator. (14) With such a distinguished pedigree, international arbitration was relied upon by states for settling their territorial disputes for centuries. Third-party settlement through arbitration is particularly well suited to territorial disputes because the disputants usually have a high incentive to achieve a timely settlement. Certainty and stability of international frontiers is essential for economic development and exploitation of natural resources, and an authoritative decision-making arbitral panel tends to imprint legitimacy on a solution that might otherwise be difficult to achieve in light of domestic political pressures. (15)

   While territorial disputes tend to be framed in highly emotional terms, the disputants typically agree on the applicable law, e.g., the colonial principle of uti possidetis (16) or the application of the equidistance principle (17) to maritime delimitation. An arbitral tribunal is an excellent medium for taking into account extensive factual evidence, which usually spans centuries, such as maps, treaties, and other ancient documents. Where the states have a different view of the applicable law, as in the dispute between Senegal and Guinea-Bissau, the arbitral tribunal can play only a limited role. (18) On the other hand, several cases involving territorial delimitation in similar circumstances were successfully resolved by arbitration because the disputants were in agreement on the applicability of the uti possidetis principle, leaving to the arbitral tribunal the technical task of applying that legal principle to the particular factual context of each dispute. (19) Finally, arbitration by its very nature tends to produce delimitation solutions whereby both sides can feel that they achieved at least some of what they desired, making arbitral solutions an effective way of dealing with domestic political opinion. (20)

   1. Early Origins of Inter State Arbitration

      Inter-state arbitration was used as a tool for settling territorial disputes since the earliest manifestations of statehood and inter-state relations. The treaty between Sparta and Argos, dating to the fifth century B.C., provided:

      If there should arise a difference between any of the towns of the Peloponesus or beyond, either as to frontiers or any other object, there shall be an arbitration. If among the allied towns they are not able to come to an agreement, the dispute will be brought before a neutral town chosen by common agreement. (21) The Middle Ages saw the organization of units of governance and territory that may be recognizable as modern states. The disputes that inevitably arose among them were most often settled by way of Papal arbitration. (22) This arbitral method was heavily influenced by the historical context of the Papacy, which, invested with both divine and sovereign power, often acted without regard for law or justice, having its own interests foremost in mind. Perhaps it is precisely because the Papal arbitration was more likely to be concerned with attaining and maintaining order that the earthly princes of Mediaeval Europe often availed themselves of the dispute resolution mechanism run by the Papacy. (23) One of the more telling illustrations of the power and flexibility of Papal arbitrations is the award by Pope Alexander VI (24) who settled disputed claims in the New World between Spain and Portugal by drawing an imaginary line from one pole to the other, dividing...