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Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

AGENTS, COUNSEL AND OTHER REPRESENTATIVES OF THE PARTIES

Republic of Croatia1Republic of Slovenia
Professor Maja Seršic Head of the Chair of International Law, Faculty of Law, University of Zagreb as Agent; H.E. Ms. Andreja Metelko-Zgombic Ambassador, Director General for EU Law, International Law and Consular Affairs, Ministry of Foreign and European Affairs of the Republic of Croatia as Co-Agent; H.E. Ms. Vesna Pusic First Deputy Prime Minister and Minister of Foreign and European Affairs of the Republic of Croatia H.E. Ms. Vesela Mrden Korac Ambassador of the Republic of Croatia to the Kingdom of the Netherlands, The Hague Professor Vladimir Ibler Professor, Fellow of the Croatian Academy of Sciences and Arts Mr. Krešo Glavač Chief of Cabinet, Ministry of Foreign and European Affairs of the Republic of Croatia Ms. Danijela Barišic Spokesperson, Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Davor Ljubanovic Counsellor, Embassy of the Republic of Croatia to the Kingdom of the Netherlands Ms. Nelija Vržina, Third Secretary, Embassy of the Republic of Croatia to the Kingdom of the Netherlands as Members of the Delegation; Professor Mirjam Škrk Head of the Chair of International Law, Faculty of Law, University of Ljubljana, former Judge and Vice-President of the Constitutional Court of the Republic of Slovenia H.E. Ms. Simona Drenik, LL.M. Minister Plenipotentiary, Legal Advisor, Cabinet of the Minister, Ministry of Foreign Affairs of the Republic of Slovenia (until 23 July 2015) as Agents; H.E. Ms. Nataša Šebenik Minister Plenipotentiary, Ministry of Foreign Affairs (as of 7 March 2016) as Co-Agent; H.E. Mr. Karl Erjavec Deputy Prime Minister and Minister of Foreign Affairs of the Republic of Slovenia H.E. Mr. Roman Kirn Ambassador of the Republic of Slovenia to the Kingdom of the Netherlands and Permanent Representative to the OPCW H.E. Ms. Vlasta Vivod Head of Minister's Office, Ministry of Foreign Affairs of the Republic of Slovenia as Special Advisors; Mr. Rodman R. Bundy Member of the New York Bar, Eversheds LLP, Singapore

Professor James Crawford, A.C., S.C., F.B.A. Whewell Professor of International Law, University of Cambridge, Member of the Institut de Droit international, Barrister, Matrix Chambers, London (until 5 February 2015) Professor Philippe Sands, Q.C. Professor of International Law, University College London, Barrister, Matrix Chambers, London Mr. Paul S. Reichler Partner, Foley Hoag, Co-Chair of the International Litigation and Arbitration Department, Washington, D.C. Mr. Andrew B. Loewenstein Partner, Foley Hoag, Boston Professor Zachary Douglas Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Matrix Chambers, London Professor Davor Vidas Research Professor, Director of the Law of the Sea and Marine Affairs Programme, FNI, Oslo as Counsel and Advocates; Ms. Anjolie Singh Member of the Indian Bar, Delhi Mr. Trpimir Mihael Šošic Senior Assistant Lecturer, Faculty of Law, University of Zagreb Mr. Yuri Parkhomenko Foley Hoag, Washington, D.C. Mr. Zoran Bradic Head of the Department for Borders, Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Sebastian Rogač Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Goran Jutriša Legal Expert Ms. Alina Miron Researcher, Centre de droit international de Nanterre (CEDIN), Université de Paris Ouest, Nanterre-La Défense Dr. Daniel Muller Consultant in International Law, Researcher, Centre de droit international de Nanterre (CEDIN), Université de Paris Ouest, Nanterre-La Défense Professor Alain Pellet Université de Paris Ouest, Nanterre-La Défense, Former Chairman of the United Nations International Law Commission, Member of the Institut de Droit International Mr. Eran Sthoeger, LL.M. New York University School of Law Sir Michael Wood, K.C.M.G. Member of the International Law Commission, Member of the English Bar as Counsel and Advocates; Ms. Natasha Harrington Member of the English Bar, Eversheds LLP, Paris as Assistant to Counsel; Ms. Héloíse Bajer-Pellet Avocat, Member of the Paris Bar Ms. Tessa Barsac, LL.M. Consultant in International Law Dr. Robin Cleverly, C.Geol, F.G.S. Head, Law of the Sea Group, UK Hydrographic Office Mr. Branko Dekleva, M.A. First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Mr. Vlado Ekmečič First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia

as Counsel; Mr. Ilija Grgic Head of the Department for State Border, State Geodetic Administration of the Republic of Croatia Mr. Davor Kršulovic State Geodetic Administration of the Republic of Croatia Ms. Davorka Saric Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Marjan Čuljak Ministry of Foreign and European Affairs of the Republic of Croatia Ms. Nancy Lopez Foley Hoag, Washington, D.C. Ms. Tracy Roosevelt Foley Hoag, Boston Mr. Pedro Ramirez Foley Hoag, Washington, D.C. as Assistants; Ms. Victoria Taylor International Mapping, Maryland Mr. Alex Tait International Mapping, Maryland as Technical Assistants. Ms. Barbara Granda, LL.M. First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Mr. Igor Karničnik, M.Sc. Head of Hydrography Department, Geodetic Institute of Slovenia Mr. Primož Kete Head of field for Cartography and Topography, Geodetic Institute of Slovenia Ms. Špela Košir First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Mr. Primož Koštrica Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Professor Martin Pratt International Boundaries Research Unit, Department of Geography, Durham University Mr. Samo Rus Adviser, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Sonja Slovša Končan Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Mateja Štrumelj Piškur, LL.M. Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Vesna Žveglič Senior Adviser, Ministry of Foreign Affairs of the Republic of Slovenia as Experts and Advisors; Ms. Diana Podgornik Administrative Assistant, Ministry of Foreign Affairs of the Republic of Slovenia as Support Staff.

I. INTRODUCTION

1.
The present arbitration concerns a territorial and maritime dispute between the Republic of Croatia and the Republic of Slovenia. Both Croatia and Slovenia are successor States to the Socialist Federal Republic of Yugoslavia ("SFRY"). The dispute was submitted to arbitration in accordance with an arbitration agreement signed on 4 November 2009 in Stockholm ("Arbitration Agreement").2 Pursuant to the Arbitration Agreement, the course of the maritime and land boundary between the two States, "Slovenia's junction to the High Sea", and the regime for the use of the relevant maritime areas are to be determined by the Tribunal.

A. GENERAL GEOGRAPHY

2.
Croatia shares land borders with Slovenia to the north, Hungary to the north-east, Serbia to the east, Bosnia and Herzegovina to the south-east and Montenegro to the south. It shares maritime boundaries in the Adriatic Sea with Slovenia, Italy, Bosnia and Herzegovina, and Montenegro.
3.
The largest part of Croatia's territory consists of lowlands, with hilly areas in central Croatia. Moreover, the Pannonian Basin, the Dinaric Alps, and the Adriatic Basin constitute major geomorphological features. The Danube, the Sava, the Drava, the Mura, and the Kupa (Kolpa) Rivers are amongst Croatia's main watercourses, forming in some cases part of the boundaries with neighbouring States. Furthermore, Croatia comprises over a thousand islands and islets.
4.
Slovenia shares land borders with Italy to the west, Austria to the north, Hungary to the northeast, and Croatia to the south-east. It shares maritime boundaries in the Adriatic Sea with Croatia and Italy.
5.
Most of Slovenia's territory is mountainous, two fifths of it being part of the Alps. In areas bordering Croatia and Hungary, Slovenia's territory also includes parts of the Pannonian plain. The Soča, the Sava, the Drava, the Mura, and the Kolpa (Kupa) Rivers are among Slovenia's main watercourses, forming in some cases part of the boundaries with neighbouring States.
6.
The land border between Croatia and Slovenia starts east from the tripoint with Hungary ("Land Boundary Tripoint"), and reaches its terminal point on the coast of the Bay called by Slovenia the Bay of Piran and by Croatia the Bay of Savudrija/Piran ("the Bay").
7.
The disputed maritime area is located in the northernmost part of the Adriatic Sea, which includes the Gulf of Trieste. The Gulf of Trieste is enclosed by the coasts of Italy, Slovenia, and Croatia.
8.
The Bay is an "indentation in the Gulf of Trieste," representing approximately 3.3 % of the total area of the Gulf of Trieste.3 The mouth of the Bay is approximately 5 km wide and runs between Cape Savudrija in Croatia and Cape Madona in Slovenia. While the location of the land boundary endpoint (and thus the starting point of the maritime boundary) is in dispute between the Parties, they agree that it is located on the coast of the Bay.
9.
Two treaties delimiting the northern part of the Adriatic Sea were concluded by the SFRY and Italy. The Treaty concluded on 10 November 1975 at Osimo ("Treaty of Osimo") delimited the territorial sea between the SFRY and Italy, by an equidistance line that extends for a distance of 25.7 nautical miles ("NM") and connects five points.4 Furthermore, an agreement on the delimitation of the continental shelf between Italy and the SFRY was concluded on 8 January 1968 at Rome (the "1968 Treaty") defining a line of delimitation with 43 points connected by 40 straight segments and 2 curved segments.5 In accordance with established principles of customary law reflected in Article 11 of the Vienna Convention on the Succession of States in respect of Treaties,6 a succession of States does not as such affect a boundary established by treaty. Accordingly, and as the Parties have accepted,7 the delimitation lines established pursuant to the 1968 Treaty and the Treaty of Osimo are applicable to Croatia and Slovenia as successor States to the SFRY. Points on these lines may therefore be utilized by the Tribunal to the extent necessary.

B. HISTORICAL BACKGROUND

1. Historical Developments up to the 18th Century

10.
The Marches, or Margraviates, of Carniola ("March of Carniola") and Styria ("March of Styria") were established in the 10th and 12th centuries respectively. Their territories formed part of the eastern border region of the Holy Roman Empire of the German Nation. They are today part of Slovenia. The Principality of Croatia had been established in the early 9th century, beyond the the frontier of what was to become the Holy Roman Empire, south and east of the areas to be covered by the Marches of Carniola and Styria. The Principality became the Kingdom of Croatia in 925, which entered into a union with the Kingdom of Hungary in 1102. In 1526-1527, the Croatian and Hungarian Parliaments elected Ferdinand I of Austria to the throne, uniting both lands under the House of Habsburg.
11.
From the second half of the 18th century, under Maria Theresa and Joseph II, Habsburg Austria undertook reforms to modernise and unify the State administration. This included the development of a centralised system of administrative boundaries between kingdoms, duchies, and provinces.
12.
The first detailed land surveys were carried out in the second half of the 18th century. They resulted in the creation of the first cadastres. Such a comprehensive survey was carried out between 1763 and 1787 by Habsburg Austria, resulting in the so-called Josephinische Landesaufnahme ("Josephine Survey").

2. The Austrian Empire and the Austro-Hungarian Empire (1804-1918)

13.
The Napoleonic Wars brought major changes in the region, including the dissolution of the Holy Roman Empire in 1806. In 1804, King Francis II of Austria had already established the Austrian Empire and declared himself Emperor of Austria under the name Francis I. The Austrian Empire lasted in that form up to 1866.
14.
A further, detailed land survey was carried out under the Austrian Empire. Commenced under Francis I and conducted from 1817 to 1861, it resulted in the so-called Franziszeische Kataster ("Franciscan cadastre"). It served as a basis for taxation, as opposed to military mapping carried out in a separate Franziszeische Landesaufnahme. This Franciscan cadastre contains detailed cadastral maps prepared for each cadastral municipality.
15.
In 1867, the Austro-Hungarian Compromise transformed the Austrian Empire into the Austro-Hungarian Empire, which lasted until 1918. Its eastern part, known as "the territories of the holy Hungarian Crown of Stephan," or Transleithania, was constituted by the Kingdom of Hungary and the Kingdom of Croatia-Slavonia. The remaining provinces were included in the western part of the Empire, officially named "the Kingdoms and Lands represented in the Imperial Council," also known as Cisleithania.
16.
According to Croatia, the constitutional and political status of the Kingdom of Croatia within Austria-Hungary was governed by the Croatian-Hungarian Compromise of 1868, which created a union between the "Kingdom of Croatia, Slavonia and Dalmatia" and the Kingdom of Hungary.8 The territories that now constitute Slovenia were then mainly part of the Austrian Crown Lands of Styria and Carniola, and of the Austrian Littoral.9
17.
Within the Austro-Hungarian Empire, a large part of the territories which later became Slovenia and those which became part of Croatia were essentially divided by the boundary between Cisleithania and Transleithania.10

3. The Kingdom of Serbs, Croats and Slovenes (1918-1929)

18.
Following the breakup of the Austro-Hungarian Empire in the aftermath of World War I, the Kingdom of Serbs, Croats and Slovenes was established on 1 December 1918. Its boundary with Austria was defined by the Treaty of Peace between the Allied and Associated Powers and Austria, done in Saint-Germain-en-Laye on 10 September 1919 ("Treaty of Saint-Germain").11 Its boundary with Hungary was defined by the Treaty of Peace between the Allied and Associated Powers and Hungary, done in Trianon, on 4 June 1920 ("Treaty of Trianon").12 The new kingdom relinquished its rights over the Venezia Giulia area ("Julian March") to Italy under the Treaty between the Kingdom of Italy and the Kingdom of Serbs, Croats and Slovenes, done in Rapallo, on 12 November 1920 ("Treaty of Rapallo").13
19.
The Kingdom of Serbs, Croats and Slovenes was divided into provinces (oblasti).14 In 1922, a Decree on the Division of the State into Provinces established 33 such oblasti.15 The current territory of Slovenia includes areas that at the time were part of Ljubljana oblast and Maribor oblast, with the addition under the Treaty of Trianon of the areas of Prekmurje and Medmurje/Medjimurje, which became part of Maribor oblast.16 According to Slovenia, the administrative division within the Kingdom of Serbs, Croats and Slovenes into oblasti largely corresponded to the division into districts used in the Austro-Hungarian Empire.17

4. The Kingdom of Yugoslavia (1929-1941)

20.
King Alexander instituted the Kingdom of Yugoslavia in 1929, after a major political crisis. An Act of 1929 on the Name and Division of the Kingdom into Administrative Territories (the "1929 Act") replaced the 33 oblasti by nine new provinces called banovine. These were later described in the 1931 Constitution of the Kingdom of Yugoslavia ("1931 Constitution").18 The banovine boundaries largely replicated the boundaries of the Kingdom of Serbs, Croats and Slovenes, and thus also those within the former Austro-Hungarian Empire.19
21.
The Ljubljana and the Maribor oblasti were then merged into a single Dravska banovina, albeit with some exceptions, including Medmurje/Medjimurje. The relevant parts of the territory of Croatia were divided into the Savska banovina and the Primorska banovina. In 1939, these merged, with some other counties, to form the Banovina Hrvatska.20

5. The Yugoslav Territory During World War II

22.
World War II spilled over to the territory of the Kingdom of Yugoslavia in April 1941, leading to occupation by the forces of the Axis and the creation of the "Independent State of Croatia." The latter had to yield a part of its territory along the coast to Italy, and the Dravska banovina was divided between the German Reich, Italy and Hungary.
23.
Anti-fascist liberation and resistance movements emerged. On Croatia's account:

5.12 During World War II in Yugoslavia, partisan resistance to the German and Italian occupation forces, and to the governments that the occupying powers installed, was led by the Anti-fascist Council of People's Liberation of Yugoslavia (AVNOJ). AVNOJ was the supreme authority of the Yugoslav resistance movement and exercised legislative and executive functions in liberated areas falling under its control. Partisan organizations in the various regions of Yugoslavia operated under its general command.

5.13 In Croatia, the highest governing organ of the partisan resistance was the National Antifascist Council of the People's Liberation of Croatia (ZAVNOH), which served as the governing authority in liberated parts of Croatia. In Slovenia, the resistance was led by the Liberation Front of the Slovenian People, which functioned as the responsible governing authority in liberated Slovene areas.21

24.
On Slovenia's account:

In September 1941, the Slovenian People's Liberation Committee (Slovenski narodnoosvobodilni odbor, SNOO) - which later became the Slovenian People's Liberation Council (Slovenski narodnoosvobodilni svet, SNOS) - was created by the Executive Committee of the Liberation Front (Izvršni odbor Osvobodilne fronte, IOOF). In the occupied territory of the later Croatia, the National Anti-Fascist Council of the People's Liberation of Croatia (Zemaljsko antifašističko vijece narodnog oslobodenja Hrvatske, ZAVNOH) was created in 1942; it was renamed in 1945 the People's Parliament of Croatia (Hrvatski narodni sabor). At the federal level, the Anti-Fascist Council of People's Liberation of Yugoslavia (Antifašističko Vijece Narodnog Oslobodenja Jugoslavije, AVNOJ) established in 1942, assumed civil authority as the political umbrella organ of the liberation movements. It proclaimed, in November 1943, the Democratic Federation of Yugoslavia (DFY) and assumed itself the functions of the interim legislative body of the Federation. In addition, it appointed the National Committee for the Liberation of Yugoslavia (Nacionalni komite osvoboditve Jugoslavije, NKOJ) to act as the interim executive authority.22

6. The Yugoslav Federation (1945-1991)

25.
Yugoslavia emerged from World War II as a member of the victorious coalition. Already during the War, in November 1943, the Anti-Fascist Council of People's Liberation of Yugoslavia ("AVNOJ") had decided that the future State would be a federal entity composed of six units, namely (in alphabetical order) Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia.23 On 29 November 1945, the Constituent Assembly proclaimed the Federal People's Republic of Yugoslavia ("FPRY").24 The FPRY and its constituent republics were formally established with the adoption of the Constitution of the Federal People's Republic of Yugoslavia on 31 January 1946.25 Croatia and Slovenia were part of the FPRY as two out of six constituent republics.26
26.
The Yugoslav armed forces under the command of Marshal Tito had occupied the Julian March and the city of Trieste in the last days of World War II.27
27.
In the Belgrade Agreement of 9 June 1945 between Yugoslavia, the United Kingdom and the United States, the provisional partition and administration of the Julian March were agreed upon. The area west of the so-called Morgan Line, including the northwestern part of the Julian March, the city of Trieste as well as Pula and anchorages on the Western coast of Istria, became Zone A. The Yugoslav armed forces left this zone and handed it over to the command and control of the Supreme Allied Commander. The remaining part of the Julian March became Zone B and subject to military administration by Yugoslavia.
28.
The 1947 Peace Treaty with Italy28 substantially modified the division and administration of the former Julian March. Article 21 established the Free Territory of Trieste ("FTT"). The FTT was placed in part under Anglo-American administration and in part under Yugoslav military administration. The corresponding areas continued to be referred to as Zone A and Zone B and continued to be divided along the Morgan Line. Zone B of the FTT was composed of the districts of Koper and Buje.
29.
Under Article 3 of the 1947 Peace Treaty, the remaining parts of former Zone A were transferred to Italian civil administration, and the remaining parts of former Zone B were placed under the administration of the FPRY. The latter territory was formally integrated into the FPRY's territory by an order of the People's Assembly of the FPRY of 15 September 1947.29
30.
In 1954, the FTT was dissolved, pursuant to a Memorandum of Understanding between the Governments of Italy, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Yugoslavia regarding the Free Territory of Trieste ("London Memorandum").30 Most of Zone A of the FTT was thereby transferred to Italy, while the remainder of the FTT was integrated into the FPRY.31 The district of Koper was attributed to Slovenia and the district of Buje to Croatia. This was done in conformity with the FPRY's "Act of 25 October 1954 on the Applicability of the Constitution, Laws and other Federal Legal Regulations on the Territory, onto which the Civil Administration of the FPRY was extended by Means of an International Agreement".32 After these major modifications, the territories of Slovenia and Croatia essentially remained unchanged until independence.
31.
The Federal People's Republic of Yugoslavia (FPRY) changed its name to the Socialist Federal Republic of Yugoslavia (SFRY) in 1963.
32.
The three federal constitutions of 1946,33 196334 and 1974,35 as well as Yugoslavia's Constitutional Law on the Social and Political Organization of the Federal People's Republic of Yugoslavia,36 contained provisions as to the boundaries between the republics, but did not describe or delimit them.37 As detailed further in Section IV below, the Parties disagree regarding the competence of the republics to determine their own boundaries under the various constitutional and legislative regimes. Moreover, they disagree as to how these boundaries were determined.38
33.
A border commission was established in 1955 in respect of the parts of the FTT that were integrated into Slovenia and Croatia in 1954, i.e. the Koper and Buje Districts respectively ("1955 Border Commission"). The Parties disagree as to the legal effect of the 1955 Border Commission's proposals.39

7. Independence

34.
Both Croatia and Slovenia declared independence on 25 June 1991. On that day, the Parliament of the Republic of Croatia, the Sabor, adopted the Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia and the Declaration on the Establishment of the Sovereign and Independent Republic of Croatia.40 On that same day, the Assembly of the Republic of Slovenia adopted the Declaration of Independence and the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia.41
35.
On 27 August 1991, the Member States of the then European Community ("EC") assembled in Brussels in an extraordinary ministerial meeting to establish the Peace Conference on Yugoslavia and an arbitration commission. The Commission became known as the "Badinter Commission" after the name of its chair, the President of the French Constitutional Council, Robert Badinter. Between late 1991 and the middle of 1993, the Badinter Commission handed down fifteen opinions pertaining to legal issues arising from the fragmentation of Yugoslavia.42
36.
By 15 January 1992, the EC and all EC Member States had recognized Slovenia and Croatia.43 Croatia and Slovenia became Members of the United Nations ("UN") on 22 May 1992.44

C. EVENTS AFTER 1991

37.
The Parties emphasise that at the time of independence they both accepted that the legal principle of uti possidetis applied to the determination of the border.45 Thus they agree that "the border between them therefore remains the border that existed at the moment of independence between the two constituent republics of the SFRY."46 However, they disagree as to the source of the title of the land boundary (i.e. how the border at that time was defined).
38.
Croatia also emphasises that in connection with Slovenia's request for recognition, the Badinter Commission took note of the fact that "[t]he Republic of Slovenia also stresses that it has no territorial disputes with neighbouring States or the neighbouring Republic of Croatia."47 Croatia therefore maintains that Slovenia's position has subsequently changed.48
39.
With regard to the maritime boundary, Croatia asserts that "both States adopted the position that the maritime border between the former republics had not been formally determined."49 However, according to Croatia, "there was an understanding... that the delimitation of the territorial seas of Croatia and Slovenia would follow the equidistance method set out in Article 15 of UNCLOS," which Croatia finds confirmed in a map published in Slovenia in 1991,50 as well as in minutes of initial negotiations.51
40.
Following Croatia's review of the legislation adopted by Slovenia since 2001 regarding maritime areas, Croatia concludes as follows:

Slovenia's constant changes of position were accompanied by increasingly exorbitant claims. Its initial position reflected the Parties' common acceptance of equidistance. Slovenia then claimed that it was a "geographically disadvantaged state" that was not entitled to proclaim an EEZ, but nevertheless claimed the entire Bay of Savudrija/Piran and the right of a "territorial" exit to the high seas in the Adriatic (1993). Next it claimed to have a continental shelf and then purported to declare an ecological zone in front of the Croatian coast (in 2003 and 2005). These acts made a negotiated settlement impossible. Recognizing this, Croatia sought international judicial settlement in accordance with international law.52

41.
Slovenia, for its part, draws the following conclusion from the overview of the negotiations between the Parties:53

- Regarding the land boundary, the initial proposals of Slovenia and Croatia from 1992 reflected the understanding of the boundary as of 25 June 1991. Because of disagreement, compromise proposals were put forward in different forums.

- During the negotiations, Slovenia made clear on several occasions (e.g., in the Memorandum on the Bay of Piran, during negotiations in the framework of the Mixed Diplomatic Commission, in documentation for the Perry mediation, and during the 2001 Drnovšek-Račan Treaty negotiations) that its vital interest is to maintain the territorial contact/access of Slovenia to the high seas54

- Although 2001 Drnovšek-Račan Treaty was not signed by Croatia it was a culmination of nine years of negotiations, aiming to reaching [sic] a fair and just result and to strengthening the good neighbourly relations between the two States.

42.
Slovenia further emphasises that "Slovenia's position has never been that the median line principle [or equidistance method] would apply to the Bay [of Piran]" and points out that "Croatia itself notes [this] in the paragraph of its Memorial discussing the 1993 Memorandum on the Bay of Piran."55
43.
The negotiations between the Parties concerning the land and maritime boundary in the period between 1992 and 2001 proceeded in several stages, which will be summarized below.

1. The Draft Border Agreement Allegedly Proposed by Slovenia in 1991

44.
According to Croatia, Slovenia presented Croatia with a draft border agreement during an initial meeting in Ljubljana after the Parties had gained independence. Croatia states that, in the proposed draft, the border was to be "determined by the present border between the municipalities," and lists respective Croatian and Slovenian municipalities in the border region.56 Croatia refers to Article 1 of this draft agreement, which provides:

Along the Dragonja River the border runs about 1 km westwards, where it turns southwestwards and 2 km north of the settlement of Momjan again reaches the Dragonja River. From there the border runs along the Dragonja River up to its mouth into the sea in the Bay of Piran.57

45.
Croatia claims that the wording of this provision "is unambiguous" as regards both the land boundary and Slovenia's proposal that "the Bay of Savudrija/Piran was to be divided between Croatia and Slovenia at the 1975 Osimo Treaty line."58 Croatia therefore concludes that "on the critical date, there was no material dispute over the boundary along the lower Dragonja River or on the sea," and that "Slovenia did not then consider the Bay as having the status of internal waters or the status of a historic bay."59
46.
Slovenia maintains that it has "no record or recollection of any draft agreement being handed over at or in connection with the 29 October 1991 meeting" and submits that "[i]f a draft were passed by anyone to the Croatians, it could not have been any kind of official proposal."60 In support of this statement, Slovenia notes that its own contemporaneous record of the meeting "makes no mention of any draft agreement" and stated instead, inter alia, that "Slovenia and Croatia will prepare a draft agreement."61 Slovenia also points out that the text that Croatia contends Slovenia presented in 1991 is in Croatian, rather than in Slovenian, and that no map indicating the maritime boundary is attached to it.62
47.
Slovenia therefore disputes Croatia's conclusion that any draft agreement that was allegedly presented by Slovenia in 1991 could show that there "was no material dispute over the boundary along the lower Dragonja River or on the sea." Slovenia notes that it was only after the October 1991 meeting that Slovenia's preparations of a draft border agreement commenced.63 Slovenia recalls that its first proposal for a border agreement was submitted to Croatia on 26 March 1992; that proposal "reflected the initial view of Slovenia on the land boundary and showed that the maritime boundary was still to be determined."64 Furthermore, Slovenia emphasises that the alleged draft agreement of 1991 does not make any reference to "equidistance" in relation to the delimitation of the maritime boundary. Hence, the alleged proposal does "not provide evidence of a 'common understanding' between the Parties that their maritime boundary would be delimited by an equidistance line."65

2. Negotiations in 1992-1993

48.
The Parties both acknowledge that bilateral negotiations in respect of the land and maritime border took place from 1992 onward.
49.
On 26 March 1992, Slovenia had proposed to the Ministry of Foreign Affairs of Croatia a draft agreement (which Croatia refers to in the present dispute as a "somewhat revised" version of the draft agreement allegedly presented in October 1991).66 This draft was, later the same year, referred to by Slovenia's Foreign Minister as "a distinct political document that does not prejudge concrete solutions regarding the demarcation" and that "will enable the beginning of expert work."67 This draft agreement provided that the border follow the existing boundary, which ran along the border Rivers Mura, Drava, Sotla, Sava, Bregana and Kolpa, the dry channel of the Dragonja River, and boundaries between the border municipalities.68
50.
In Article 2 of the draft agreement, Slovenia proposed that "[t]he Parties... study the issue of lateral delimitation at sea in accordance with the principles and rules of international law."69
51.
On 26 May 1992, at the first meeting of surveying and mapping experts, the attendees agreed that "the definition of cadastral boundaries" would be "the point of departure for the final decision" on the land boundary.70
52.
On 9 August 1992, Croatia responded with a draft agreement proposing boundaries defined by the cadastral municipalities according to an initial land survey.71 Croatia stated in its proposed Article 2 that "[t]he maritime boundary between the Republic of Croatia and the Republic of Slovenia [run] from the Dragonja's outfall to the tripoint with Italy in the Gulf of Trieste, which will be established according to international criteria."
53.
On 30 September 1992, a new draft was submitted by Slovenia. It proposed following the border defined by the cadastral municipalities "according to original survey," thus including within Slovenia territories on the left bank of the Dragonja River.72 Croatia responded with a new draft Convention, whereby the "[t]he boundary between the Republic of Croatia and the Republic of Slovenia shall be the boundary that was considered State boundary between the two republics of the former Socialist Federal Republic of Yugoslavia, notably the boundary between the municipalities."73 On 10 November 1992, at a meeting of the two delegations, a provision in Croatia's draft Convention to the effect that "the boundary of cadastral municipalities of the original survey is considered as the initial situation" was held by Slovenia to be unclear.74
54.
At this second exchange of drafts, Slovenia's proposal did not contain a provision on the maritime boundary.75 Croatia proposed for its part, in Article 1, that "the boundary on rivers and at sea... be delineated and demarcated on the basis of international rules and criteria."76 At a meeting following this exchange, Slovenia proposed omitting such a provision.77
55.
Contrary to Slovenia's position, Croatia asserts that "[u]ntil 1993 Slovenia expressed no disagreement with Croatia that the maritime delimitation should follow an equidistance line from the land boundary terminus through the Bay seawards to the maritime boundary with Italy," referring to the minutes of early negotiations between the Parties, which "contain no Slovene proposal which differed from this approach."78

3. The Parties' Expert Groups

56.
Expert groups were established jointly by the Parties ("Parties' Expert Groups").79 They held meetings between December 1992 and June 1993. A meeting of surveying and mapping experts took place on 15 March 1993 in order to "determine, in broad terms," discrepancies in the Parties' "interpretations of the course of the cadastral border" and "merely set up a basis for future work."80 The surveying and mapping experts adopted a common report on 2 June 1994 ("1994 Report"81). When comparing the Parties' data, the experts noted the following:

2.1 Basic facts

- The comparison of the data on the course of the border was carried out on 244 sheets of topographic maps at a scale of 1:5000 containing each side's interpretation of the course of the border as depicted by their respective surveying and mapping expert groups;

- There are 166 cadastral communities on the Slovenian side of the border and 161 on the Croatian side;

- The length of the land border between the Republic of Slovenia and the Republic of Croatia, calculated on the basis of digital data, is 670 km.

2.2 The following was established on the basis of the adopted criteria (Item 1.2 of this Joint Report):

- 77%, i.e. approximately 510 km, of the joint border is "in line with the set criteria";

- 10%, i.e. approximately 70 km, of the joint border has not yet been agreed upon (a discrepancy of up to 2 cm on maps);

- With regard to 13%, i.e. approximately 80 km, of the joint border, significant discrepancies (discrepancies exceeding 2 cm on maps) have been established, namely in the areas along the rivers Mura and Drava, and at the confluence of the rivers Sotla, Sava and Bregana, in the Sekuliči cadastral municipality, along the Čabranka, at Snežnik, in the Topolovec cadastral municipality and along the Dragonja river (between the cadastral municipalities of Raven and Sečovlje on the Slovenian side and the Kaštel cadastral municipality on the Croatian side). The surveying and mapping experts were not able to compare the data regarding the border from Čabar to the sea. Detailed information is contained in the minutes of the meetings of surveying and mapping experts.82

4. Slovenia's 1993 Memorandum on the Bay of Piran and Croatia's Reaction

57.
In April 1993, Slovenia issued a Memorandum on the Bay of Piran,83 which stated:

The Republic of Slovenia advocated the maintenance of the integrity of the Bay of Piran under its sovereignty and jurisdiction and the exit to the high seas on the basis of admissible criteria of international law and taking into consideration the specific situation of the Republic of Slovenia.

The Republic of Slovenia holds a view that the Bay of Piran is a case sui generis which dictates exclusive regard of the historic title and other special circumstances. Slovenia, therefore, resolutely rejects the application of the criterion of the median line, which would - in the case of the Bay of Piran - represent an unjust and impractical solution for the Republic of Slovenia, entirely contrary to the historical and actual state in the Bay of Piran.84

58.
As regards "the maritime boundary with the Republic of Croatia outside [the Bay]," the Slovenian Memorandum took the following position:

[C]onsidering the specific situation, the principle of equity - implying also the so-called special circumstances deriving from Article 12 of the 1958 Convention on Territorial Waters and Contiguous Zone - also has to be taken into consideration. The Republic of Slovenia undoubtedly meets the requirements for the application of this institute, since it belongs to the group of the so-called geographically disadvantaged States which, due to their geographic position, cannot declare their exclusive economic zone. The vital question of acquisition of sufficient quantities of national resources for the survival of the Slovene nation is also raised here. Therefore, the Republic of Slovenia is of the opinion that it is necessary, in accordance with the principle of equity and considering the institute of special circumstances, to draw the maritime boundary with the Republic of Croatia in such a way as to ensure that the territorial waters of the Republic of Slovenia would, at least at a narrow section, join the high seas of the Adriatic.85

59.
Slovenia argues that in this Memorandum it had made its position clear to Croatia in May 1993, as regards the Bay of Piran being integrally under Slovenia's sovereignty and jurisdiction, and concerning Slovenia's vital interest in a territorial junction to the high seas of the Adriatic. Slovenia maintains that its position was made clear on many occasions thereafter.86
60.
Croatia alleges that the 1993 Memorandum marks "the first time Slovenia claimed sovereignty over the entire Bay" and the first time Slovenia "rejected the use of the equidistance method."87 It notes that this change in Slovenia's position came "a full two years after independence."88 Slovenia answers that it "seems rather natural" for it to have "formulated its claim when it realised that it was challenged by its new neighbour" (Croatia). It notes that a passage of time of two years from independence until the 1993 Memorandum "is not that long a lapse of time."89 Slovenia notes that this also explains why the Slovenian Government had initially indicated to the Badinter Commission that it had no territorial disputes with its neighbours.90
61.
On 26 May 1993, the Committee on International Relations of the National Assembly of the Republic of Slovenia adopted certain "Standpoints and Conclusions." As highlighted by Slovenia, its points VI and VII read as follows:

VI.

The most important criterion for the determination of the land frontier is municipality boundaries and/or boundaries of cadastral municipalities...

Should the Republic of Croatia insist on the current territorial claims both at land and at sea, the National Assembly hereby instructs the Government of the Republic of Slovenia to raise claims - based on historic facts - which would ensure respect for the inviolability of our territory and the realisation of Slovenia's interests.

VII.

As regards the Bay of Piran, the National Assembly of the Republic of Slovenia reiterates the fact that in recent history, the Republic of Slovenia has had indisputable jurisdiction over the Bay of Piran. It has managed it accordingly and provided for its protection and preservation. The Bay of Piran belongs to the Republic of Slovenia also in accordance with the principle of international law of uti possidetis.

As regards exit to the high seas, the National Assembly underlines that the Republic of Slovenia, throughout recent history, has indisputably had unhindered exit to the high seas. This is the reason why the National Assembly points out that exit to international waters is an inherent right of the Republic of Slovenia.91

62.
On 18 November 1993, the Assembly of Croatia adopted "Standpoints" concerning the frontier in the Bay and the area of the Dragonja River, which provided, inter alia :

1. Equidistance method to be applied in the Piran Bay, i.e., each point of the borderline should be equally distant from Croatian and Slovenian coasts (centre-line);

2. in the Dragonja river area the borderline runs along the St. Odorik channel by which Dragonja flows into the sea as of 25 June 1991....92

5. Joint/Mixed Diplomatic Commission and Expert Group

63.
On 30 July 1993, the Parties signed an Agreement on the Establishment and the Mandate of Joint Bodies for the Identification and Demarcation of the State Border.93 A Diplomatic Commission for the Identification and Demarcation of the State Border between the Republic of Croatia and the Republic of Slovenia ("Joint/Mixed Diplomatic Commission")94 was established pursuant to this Agreement in order to conduct the negotiations on the boundaries.
64.
The Joint/Mixed95 Diplomatic Commission established a subsidiary Joint/Mixed Croatian-Slovenian Commission for Border Demarcation, Maintenance and Renewal of the State Border ("Joint/Mixed Border Demarcation Commission"). At its meeting on 13-14 September 1995, this subsidiary commission set up an expert group (the "Joint/Mixed Expert Group" or "Expert Group") made up of geodetic and technical experts with the task to identify the contested parts of the land boundary.
65.
Within the Joint/Mixed Diplomatic Commission, Slovenia claims that it took the following initial positions:

- balanced alignment of the land boundary

- the integrity of the Bay of Piran, and

- territorial access to the high seas....96

66.
Slovenia claims that Croatia took the following initial positions:

- to keep all parts it possesses at the land part,

- the strict equidistance line in the Bay of Piran and its continuation until the Osimo boundary in the direction to Gradež,

- a territorial contact with Italy that is as long as possible, and,

- enabling innocent passage for Slovenia through Croatia's territorial sea.97

67.
Croatia disputes this view of its initial position. While Croatia acknowledges that it sought "to keep all parts it possess[ed] at the land part," there was "no particular need for Croatia to insist on territorial contact with Italy."98 Croatia believes Slovenia has introduced this position in order to equate it with Slovenia's desire for "territorial access to the high seas."99 Croatia also disputes Slovenia's characterization that Croatia was "willing to make big concessions on the Bay during the negotiations."100
68.
On 15 February 1994, at the first meeting of the Joint/Mixed Diplomatic Commission, Slovenia proposed the following with respect to the border in the Dragonja River area and the maritime areas, which was not accepted by Croatia:

Considering the proposal of the Republic of Croatia that after the delimitation a part of the territory and rights of the Republic of Slovenia as at 25 June 1991 (the territory south of the Dragonja River, a half of the Bay of Piran and control over the access to the high seas) belongs to Croatia and considering that the dissolution of the former SFRY has brought about, in certain aspects, a special delimitation case, the Republic of Slovenia suggests that the two states peacefully define in a treaty that the state border runs in Istria from the Sečovlje III cadastral municipality and along the northern coastal part of the Savudrija Promontory; from there on the maritime boundary will be defined in such a way as to enable the Republic of Slovenia to have free exit to the high seas.101

69.
In 1994, Slovenia adopted a law which declared the settlements Škudelin, Bužin and Škrile on the south bank of the Dragonja River to be part of the Slovenian Municipality of Piran.102 According to Croatia, this was intended to establish a more favourable position for Slovenia in relation to a future maritime delimitation.103 In response, the Croatian Parliament adopted a special Declaration condemning the Slovenian law.104 Slovenia subsequently amended the legislation, suspending its application to the above settlements pending the definition of the border between the Republic of Slovenia and the Republic of Croatia.105
70.
On 23 February 1995, at the third meeting of the Joint/Mixed Diplomatic Commission, the Joint Minutes adopted the following conclusions emphasised by Slovenia:

a) The Mixed Diplomatic Commission expressed optimism regarding further definition of the border line on land. The Slovenian side is of the opinion that the boundaries of cadastral municipalities on the day of the declaration of independence of both countries, 25 June 1991, constitute the basic criterion for the definition of the state border along the entire border between the two countries. By contrast, Croatia is of the opinion that boundaries of cadastral municipalities are only one among the essential criteria in the definition of the border line; however, the factual situation as at 25 June 1991, i.e. on the day of the declaration of independence of both countries, is the prevailing factor in defining the state border. The Croatian side again pointed to the issue of the Trdinov vrh or Sveta Gera.

b) As regards the maritime boundary, both delegations agreed that none of the sides may withdraw from the official positions of the Republic of Slovenia and the Republic of Croatia represented so far and contained in the Memorandum on the Bay of Piran of 7 April 1993 and the positions of the Republic of Croatia on the definition of the state border in the Bay of Piran and in this regard in the basin of the Dragonja River of 18 November 1993. The Diplomatic Commission decided that negotiations on the future course of the border need to be continued.106

71.
Both Parties note that on 20 September 1995, at a meeting of the two Prime Ministers, Slovenia proposed that "a small part of the Bay of Piran" be allotted to Croatia, a proposal which in Croatia's view required that "nearly the entire Bay of Piran be accorded to Slovenia, as well as a territorial corridor through the territorial sea of Croatia, thus providing Slovenia with territorial contact with the high seas."107 The Slovenian proposal was rejected by Croatia.108 According to Slovenia, Croatia proposed that Slovenia have two-thirds of the Bay.109
72.
In the course of bilateral negotiations between 1993 and 1995, including at Prime Minister level, the Parties concluded two treaties on Marine Fisheries, in 1994 and 1995, allowing Slovenian fishermen to fish in Croatian territorial waters under certain conditions.110
73.
On 20 December 1996, the Expert Group issued an official report signed by both Parties ("1996 Report")111 and approved by the Joint/Mixed Border Demarcation Commission.112 This report concluded that 9% (or 60 km) of the Parties' common land boundary was "unaligned", meaning that "cadastral district boundaries were separated by more than 50 m."113 The Border Demarcation Commission also prepared cartographic material which in its view was "sufficient for the preparation of the agreement on common State boundary."114
74.
In respect of the 1996 Report, Croatia submits that only "[a]long the approximately 60 km where the Parties' cadastral district boundaries were found not to be aligned, the international boundary was disputed."115 Slovenia objects to Croatia's reliance upon the 1996 Report. In its view, "this report, of a technical nature, was merely one step in the efforts to reach political agreement on the course of the land boundary."116 According to Slovenia, the Expert Group did not compare the cadastral records of the entire land boundary.117 Slovenia asserts that the Expert Group's task was instead "to identify (only) the cadastral boundary discrepancies," as the body "had no mandate or power to identify 'those parts of the border that, on the date of independence, were agreed, and those parts that were in dispute', as Croatia states."118 Slovenia argues in this regard that "under the 1993 Agreement the power to determine the boundary remained with the two governments."119 Croatia, however, maintains that the 1996 Report resulted from a process in which "the Parties themselves, following independence, jointly compared their cadastral boundaries precisely in order to determine the disputed and agreed parts of the boundary."120
75.
At a meeting in March 1997, the Joint/Mixed Diplomatic Commission noted that the remaining discrepancies "could not be settled solely by the principles of geodetic alignment."121 Following an unsuccessful attempt to reach agreement at the Foreign Ministers' level in October 1997, the Joint/Mixed Diplomatic Commission met one last time in July 1998.122
76.
During this final meeting, the Joint/Mixed Diplomatic Commission adopted minutes with "Agreed Conclusions". Slovenia cites those Conclusions as evidence that no agreement on the boundary resulted from the process.123 According to Slovenia, "[i]t was envisaged that the following meeting of the Mixed Diplomatic Commission would be devoted to the maritime issues," but "it was not possible even to agree on the agenda of the next meeting of the Mixed Diplomatic Commission - Croatia cancelled the meeting called by Slovenia just a few hours before the meeting was due to take place."124

6. The 1997 Agreement on Local Border Traffic and Cooperation

77.
On 28 April 1997, the Parties concluded an Agreement on Local Border Traffic and Cooperation ("SOPS/LBTA"),125 for a period of three years, to be extended tacitly for each subsequent year.126 The Agreement concerned both the land border and the maritime areas.
78.
With respect to those areas, Article 47(1) of the SOPS/LBTA provides as follows:

Each Contracting Party shall, with a view to ensuring unhindered continued cooperation and development in border sea fishing, reciprocally facilitate fishing in its border area in the sea, as provided for in Article 1, Paragraph 4, for fishers having permanent residence or the seat of a company in the border area of the other Contracting Party.127

79.
Pursuant to Articles 1(3) and 1(4) of SOPS/LBTA, the SOPS/LBTA applies to the following area:

3. The border area at sea under this Agreement shall be the sea area under sovereignty of each of the Contracting Parties, situated to the north of the 45 degrees and 10 minutes parallel north latitude along the west Istrian coast, from the outer limit of the territorial sea of the Republic of Croatia, where this parallel touches the land of the west Istrian coast (the cape Grgatov rt Funtana).

4. The border area at sea for sea fishing in the border area shall be limited to the respective territorial seas of the Contracting Parties within the border area at sea under Paragraph 3 hereof. The sea fishing area provided for under the SOPS, of approximately 1,200 sq km.128

80.
Article 59 of the SOPS/LBTA provides:

The provisions of this Agreement do not in any way prejudice the determination and demarcation of the state border between the Contracting Parties.129

81.
Slovenia argues that the SOPS/LBTA nevertheless remains relevant in the present dispute on the basis of its recognition of a Croatian-Slovenian "border area at sea."130 Slovenia asserts that it "sheds light on what the parties considered to be the relevant coasts for their maritime activities."131 Croatia objects to Slovenia's reliance on the SOPS/LBTA to establish the area relevant to delimitation. This objection is based on the fact that Article 59 of the SOPS/LBTA provides that the agreement "is expressly without prejudice to delimitation."132
82.
The SOPS/LBTA provisions on land were swiftly implemented.133 However, the Parties faced difficulties in implementing the fisheries provisions.134 As a result of those difficulties, incidents occurred in July, August and September 2002.135 In an effort to remedy the situation, the Parties managed to agree on a provisional implementation of the SOPS/LBTA (Arrangement on the Temporary Implementation of Articles 47 and 52 of SOPS/LBTA).136 This arrangement applied until 30 April 2004.137
83.
In 2004, following Slovenia's accession to the European Union ("EU"), the EU informed Slovenia that the EU had competence over the fishing provisions of SOPS/LBTA.138 The Parties' discussions over implementation of the SOPS/LBTA thereafter continued with the European Commission. In 2005-2006, the European Commission proposed draft implementing rules.139 In 2007, it appointed two fisheries experts to present recommendations on the implementation.140
84.
Finally, according to Croatia, it was agreed during its EU accession negotiations that the fishing rights of the Parties under the SOPS/LBTA, would be included in the relevant EU fisheries regulations and that they would be implemented as of the date the Award delivered by this Tribunal enters into force.141 Slovenia, however, "does not agree that the SOPS fisheries provisions have been subsumed in Croatia's EU Accession Treaty," and asserts that "they are separate legal instruments which provide separate legal bases for the protection of the parties' mutual fishing rights."142
85.
As to the further relevance of the SOPS/LBTA to the present dispute, Slovenia disputes Croatia's characterization of the SOPS/LBTA as an agreement dividing fishing areas using a median line.143 Slovenia instead argues that it "never agreed to the application of equidistance, whether in the context of the SOPS Agreement or otherwise."144

7. Negotiations in 1998-1999

86.
Between 1998 and 1999, the Parties resumed bilateral negotiations at the Foreign Ministers' level. According to Slovenia, the Ministers had by November 1998 "agreed that 91.1% of the land boundary was coordinated."145 At the meetings, the Parties maintained their diverging views as regards the Dragonja River area and the maritime issues.146 Moreover, Slovenia asserts that it "clearly expressed" that its territorial access to the high seas was "of utmost importance to Slovenia."147 According to Slovenia, the outcome of these negotiations was "inconclusive."148
87.
Croatia asserts that during the 1998-1999 negotiation period, "Slovenia staged various political events in the vicinity of the common border with Croatia along the Dragonja River."149 Croatia characterizes this as an attempt to "promote a 'historical' justification for the novel expansion of its territorial claims."150
88.
On 26 March 1999, the Croatian Parliament adopted a Declaration on the Inter-State Relations between Croatia and Slovenia.151 This set out possible solutions for the Dragonja River area and the delimitation of the Bay and required the Croatian Government to submit to parliamentary approval, prior to signature, any final draft border agreement with Slovenia.152
89.
These negotiations produced no agreement on the land boundary. According to Croatia, "the territorial disputes identified by the Joint Expert Report remain unsettled."153
90.
Nor was agreement achieved on the maritime issues. The Croatian side successively proposed to divide the Bay in a ratio 1/3:2/3, and then 1/4:3/4, in favour of Slovenia. Both proposals were rejected by the Slovenian side.154 Similarly, no agreement was reached on Slovenia's territorial access to high seas. In the course of these meetings, the Croatian Foreign Minister took the view that the dispute should be submitted to third-party dispute settlement.
91.
In 1999, the Parties agreed to mediation of the disagreement over the delimitation of the territorial sea by Dr. William Perry, former U.S. Secretary of Defence.155 The Parties did not reach agreement and no further meetings were held in this format after exchanges in July and November 1999.156 Slovenia notes that on 7 June 1999, in the context of the mediation, Croatia had submitted a document pursuant to which it was prepared to adjust its claim as regards an equidistance line in the Bay. According to Slovenia, Croatia had recognized special circumstances within the meaning of Article 15 of the UN Convention on the Law of the Sea ("UNCLOS"157),158 and proposed as an alternative to delimitation the joint use and management of the Bay. In this document, according to Slovenia, Croatia also argued that a corridor to the high seas was not founded in international law.159 Slovenia further notes that Croatia had offered a regime substantially closer to that of the high seas.160 Slovenia considered that the Bay retained the status of internal waters and, because the previously federal territorial sea had not been divided between the republics, remained a maritime area held in common by the two newly independent States until they agreed on its division.161

8. The 2001 Drnovšek-Račan Agreement

92.
Negotiations at Prime Ministers' level intensified in 2001. On 20 July 2001, the Parties initialled the Draft Drnovšek-Račan Agreement on the Common State Border (2001) ("Drnovšek-Račan Agreement").162 The Committee on International Relations of the National Assembly of the Slovenia approved the Drnovšek-Račan Agreement on 19 July 2001.163 However, Croatia emphasises that the draft text was rejected by the Foreign Affairs Committee of the Parliament of Croatia164 even before it had been submitted to the Croatian Parliament for approval.165
93.
According to Slovenia, the Drnovšek-Račan Agreement "has considerable importance" as "the most highly developed effort of the Parties to achieve a 'comprehensive' solution."166 Slovenia emphasises that the Drnovšek-Račan Agreement "did not reflect the status quo (uti possidetis) as of 25 June 1991; instead, it represented a negotiated compromise, which took into account and balanced the interests of both States on land as well as at sea."167 According to Slovenia, the Drnovšek-Račan Agreement "reflected a global negotiated compromise on land and on sea and was the definitive treaty text that resulted from nine years of intensive negotiations and that both States considered as equitable at the time."168 Slovenia argues that "[w]ith the initialling of the 2001 Treaty, the negotiations were regarded as concluded."169
94.
The Slovenian version of the text of the Drnovšek-Račan Agreement provided, inter alia :

Article 4

Junction of the Territorial Sea of the Republic of Slovenia with the High Seas

[...]

(2) The width of the junction of the territorial sea of the Republic of Slovenia with the high seas shall equal the distance from point B referred to in Article 3, paragraph 1, of this Treaty,170 to the Madona promontory.171

95.
The Croatian version of the text of the Drnovšek-Račan Agreement provided, inter alia :

Article 4

Link of the Republic of Slovenia's Territorial Sea with the High Seas

[...]

(2) The link of the Republic of Slovenia's territorial sea with the high seas has a width which equals the distance between point B, as defined in Article 3, paragraph 1 of the present Treaty, and Cape Madona.172

96.
Croatia disputes several characterizations made by Slovenia of the Drnovšek-Račan Agreement. It notes that the Ministerial discussion's goal was to reach a "package" solution on "bilateral issues that went beyond just the issue of maritime and land delimitation."173 It also notes that the ratification of the SOPS/LBTA was not part of the deal, but rather "a unilateral act of Slovenia whereby it simply confirmed its readiness to be bound by a treaty from which it benefited."174 Furthermore, Croatia maintains that the Agreement itself, in addition to not having been approved by the Croatian Parliament, was merely a draft text that had not been signed by Croatia, and had merely been initialled by the head of the Slovenian delegation as a "final working adjustment" ("končna delovna uskladitev" in Slovenian).175
97.
Croatia asserts that "in face of Slovenia's increasingly extreme positions with regard to the land and maritime boundary... it was not possible to reach agreement,"176 while Slovenia contends that several incidents took place at sea as a result of Croatia's efforts "to enforce its own view of the maritime boundary (an equidistance line)."177 Slovenia asserts that "after 2001, Croatia's position was that the dispute should be referred to international adjudication."178 Croatia asserts that "for several years [after 1999], bilateral efforts to resolve the dispute over the boundary continued," ultimately failing because of the irreconcilable negotiating positions of the Parties.179 According to Slovenia, bilateral discussions after 2001 were devoted to "the possible submission of the dispute to third party settlement," and did not constitute substantive negotiations.180 On this basis, Slovenia asserts that the legislation adopted by the respective Parties after 2001 was irrelevant to the boundary negotiating process.181

9. Negotiation of the Arbitration Agreement

98.
Following negotiations facilitated by the European Commission, Croatia and Slovenia reached a compromise to submit the dispute to arbitration by concluding the Arbitration Agreement on 4 November 2009.
99.
The Parties hold different views on the circumstances of the negotiation of the Arbitration Agreement. Thus, Croatia takes the following position in its conclusions:

e. Croatia has consistently called for the dispute to be settled by an international judicial body applying international law. Slovenia was reluctant to follow this course, and in 2008 initiated an open blockade of Croatia's EU accession negotiations, notwithstanding the fact that the bilateral boundary issue had no place in the accession process.

f. The EU supported initiatives to end the Slovenian blockade, to enable the continuation of the Croatian accession process in early 2009.

g. In September 2009 Slovenia agreed to lift its objection to the accession process and negotiations on the settlement of the border dispute by arbitration continued. The Parties agreed that Croatia would be allowed to make an interpretative declaration to the effect that nothing in the Agreement should be understood by the Tribunal as expressing or implying any consent to Slovenia's claim to "territorial contact" with the high seas.182

100.
Further, in Croatia's view, the Arbitration Agreement "provides for the removal of Slovenia's blockade of Croatia's EU accession negotiations."183 It considered that "it has been important for Croatia to ensure that the conduct of these proceedings, as well as the outcome, should be delinked from the accession process."184
101.
For its part, Slovenia describes the negotiations of the Arbitration Agreement as follows:

- Both States showed a certain flexibility regarding the form of third party settlement: while Slovenia preferred mediation or conciliation, Croatia preferred to settle the dispute before the International Court of Justice in accordance with Article 38(1) of the ICJ Statute. The compromise was to agree on arbitration but taking into consideration also equity and other grounds, not only international law, to achieve a fair and just result.

- The conclusion of the Arbitration Agreement was the result of a strong commitment of the Slovenian and Croatian Prime Ministers to securing their countries' vital interests. For Slovenia the vital interest is reflected in Articles 3 and 4 of the Arbitration Agreement as they were proposed by Rehn in June, including Slovenia's junction to the High Sea. For Croatia the vital interest was that Slovenia consents to the continuation of Croatian EU accession negotiations and that the arbitral award not be delivered before Croatia became a Member of the European Union.185

102.
In 2002, Croatian Prime Minister Ivica Račan proposed to Slovenian Prime Minister Janez Drnovšek binding arbitration as a solution to the border dispute.186 Between 2003 and 2005, Croatia proposed several times that the dispute be resolved by international adjudication at the International Court of Justice ("ICJ"),187 whereas Slovenia "referred to Article 33 of the Charter of the United Nations, and its preference to settle the dispute through diplomatic means, as the dispute involved Slovenia's vital interests."188 In 2006, Croatia repeated its invitation to refer "the dispute over the state border delimitation at sea to an international judicial body."189
103.
In 2007, the Parties reached agreement in principle that the territorial and maritime disputes should be referred to the ICJ.190 According to Slovenia, a Mixed Group of Legal Experts was established in order to conclude a special agreement to that effect, but the three ensuing meetings between 2008 and 2009 did not result in such an agreement.191 At the first meeting in June 2008, the Parties exchanged separate drafts of a Special Agreement on the submission of the border dispute to the ICJ.192 At the two last meetings, Slovenia proposed that because the "applicable principles [are] broader than the pure application of international law" (invoking Article 38(2) of the Statute of the International Court of Justice), the dispute should be referred to ad hoc arbitration; this proposal was rejected by Croatia.193 In March 2009, Slovenia's new Prime Minister, Borut Pahor, "terminated the functions" of the Slovenian members of the Mixed Group of Legal Experts, because, Slovenia explains, "the report [of the latter group] assessed that under the given mandate no progress could be achieved."194
104.
In December 2008, Slovenia (a member of the EU since May 2004)195 raised reservations to seven of the negotiating chapters at the Intergovernmental Accession Conference of the EU with Croatia, on the basis that "in its negotiating positions the Croatian government has been referring to legal acts which - directly or through implementing regulations - prejudice the definition of the border between Slovenia and Croatia."196
105.
Croatia expressed readiness to provide "a guarantee that nothing submitted by Croatia to the EU during the accession process would be used to prejudice the final delimitation between the two States,"197 and in November-December 2008 responded to the proposal of the French Presidency of the EU Council that the Parties exchange letters to a similar effect.198 The proposed assurances were rejected by Slovenia, which considers that the "proposed texts did not meet Slovenian concerns."199
106.
In January 2009, the European Commissioner for Enlargement, Mr. Olli Rehn ("Commissioner Rehn"), launched an initiative to facilitate the resolution of the border dispute,200 proposing that a Senior Experts Group ("SEG") set up by the Parties resolve the border dispute and make recommendations that the Parties would be "committed to respect."201 The proposal was rejected by Croatia which maintained its position that the dispute be resolved at the ICJ in accordance with international law and considered that "the task of the SEG should be limited to mediating the negotiations on a Special Agreement to submit the dispute to the [ICJ]."202
107.
In February 2009, Commissioner Rehn proposed that the SEG resolve the border issue "based upon principles of international law."203 At the second trilateral meeting on 10 March 2009, Croatia insisted that the SEG have only a procedural role in assisting the Parties to conclude an agreement to submit the dispute to the ICJ, while Slovenia maintained its view that the role of the SEG should be to resolve the dispute.204 According to Slovenia, as the dispute had become "highly politicized," the SEG's final solution must be fair and should take into account "(1) the territorial status quo as of 25 June 1991; (2) special - including historic - circumstances; (3) vital interests of the countries concerned; and (4) any significant substantial common achievements made so far."205
108.
At the third trilateral meeting on 17 March 2009, the Parties agreed in principle to European facilitation, to be provided by a senior experts' group, in order to solve the border issue.206 According to Slovenia, the Parties also agreed at the meeting that Article 33 of the Charter of the United Nations was the basis of the further trilateral discussions, that "unblocking" of Croatia's accession negotiations would be a key element in the final agreement, and that the Parties would sign a joint declaration to the effect that the situation on 25 June 1991 would not be prejudiced.207 In the resulting Draft Agreement on Arbitration ("Third Proposal of Commissioner Rehn"), the SEG was to arbitrate the dispute.208 At the fourth trilateral meeting, Slovenia stated that it was open to considering a resolution of the dispute through legal rather than diplomatic means. However, its main reservation concerned the provision on Applicable Law, taking the position that the dispute should take into account the Parties' "vital interests" and "all relevant circumstances" and that the SEG should decide ex aequo et bono.209 Croatia maintained its position that the dispute should be submitted to the ICJ.210
109.
On 22 April 2009, Commissioner Rehn provided the Parties with a Draft Agreement on Dispute Settlement, whose final draft ("Rehn Draft I") was submitted to them on 23 April 2009.211 Its Articles 3 and 4 read:

Article 3: Task of the Arbitral Tribunal

(1) The Arbitral Tribunal shall determine

(a) the course of the maritime and land boundary between the Republic of Croatia and the Republic of Slovenia; and

(b) the regime for the use of the relevant maritime areas and Slovenia's contact to the High Sea.

(2) The Parties shall specify the details of the subject-matter of the dispute within one month after entry into force of this Agreement. If they fail to do so, the Arbitral Tribunal shall use the submissions of the parties for the determination of the exact scope of the maritime and territorial disputes and claims between the Parties.

(3) The Arbitral Tribunal shall render an award on the dispute.

(4) The Arbitral Tribunal has the power to interpret the present Agreement.

Article 4: Applicable Law

The Arbitral Tribunal shall apply

(a) the rules and principles of international law for the determinations referred to in Article 3(1)(a);

(b) international law, equity and the principle of good neighbourly relations in order to achieve a fair and just result for the determination referred to in Article 3(1)(b).212

110.
Rehn Draft I proposed a Joint Declaration to replace Article 11(4) of the initial version made on 22 April 2009:

Today, we, the Prime Ministers of Slovenia and Croatia, have signed a bilateral agreement on arbitration, witnessed by the European Commission, France, the Czech Republic and Sweden.

According to Article 11 (1) of the Agreement on Dispute Settlement, it shall be ratified expeditiously by both sides in accordance with their respective constitutional requirements. We will therefore submit the signed agreement to our respective Parliaments within one week. We are confident that each parliament will, according to its own constitutional rules, give its consent for ratification by the end of June 2009.

In view of this way ahead, reservations as regards opening and closing of negotiation chapters where the obstacle is related to the dispute are lifted so as to resume immediately the accession negotiations within the Intergovernmental Conference.213

111.
Croatia accepted Rehn Draft I214 as "it separated the issue of delimitation of the territorial sea, which would be determined in accordance with international law, from aspects of its use, which would be determined based on international law,... equity and the principle of good neighbourly relations."215 Slovenia proposed amendments, notably that the determination in Article 3(1)(a) include the words "including territorial contact with the High Seas" after the words "the course of the maritime and land boundary between the Republic of Croatia and the Republic of Slovenia,"216 and that Article 4 read:

Article 4: Applicable Law

The Arbitral Tribunal shall apply

(a) the rules and principles of international law;

(b) Equity and the principle of good neighbourly relations, taking into account also vital interests of both Parties and all relevant circumstances, in order to achieve a fair and just result; And should therefore decide ex aequo et bono.217

112.
Croatia highlights that Slovenia also "proposed that the blockade on Croatia's EU accession only be lifted after the Arbitration Agreement was ratified by both Parliaments, instead of an immediate lifting of the blockade, as had been proposed by Commissioner Rehn."218
113.
In June 2009, Commissioner Rehn presented a revised Draft Agreement on Dispute Settlement ("Rehn Draft II"), Articles 3 and 4 of which read:

Article 3: Task of the Arbitral Tribunal

(1) The Arbitral Tribunal shall determine

(a) the course of the maritime and land boundary between the Republic of Croatia and the Republic of Slovenia;

(b) Slovenia's junction to the High Sea;

(c) the regime for the use of the relevant maritime areas.

(2) The Parties shall specify the details of the subject-matter of the dispute within one month after entry into force of this Agreement. If they fail to do so, the Arbitral Tribunal shall use the submissions of the parties for the determination of the exact scope of the maritime and territorial disputes and claims between the Parties.

(3) The Arbitral Tribunal shall render an award on the dispute.

(4) The Arbitral Tribunal has the power to interpret the present Agreement.

Article 4: Applicable Law

The Arbitral Tribunal shall apply

(a) the rules and principles of international law for the determinations referred to in Article 3(1)(a);

(b) international law, equity and the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances for the determinations referred to in Article 3(1)(b) and (c).219

114.
With respect to the language of Article 3(1)(b), Croatia submits that it "was not in line with Slovenia's proposal, and apparently was added by the European Commission." Moreover, it holds that the "exclusion of the notion of 'territorial contact' and the separation of the notion of 'junction' from the determination of the territorial (land and maritime boundary) issues... clarified that there was no presumption that Slovenia should be granted any such contact."220 Croatia notes as well that the term "junction" in Rehn Draft II was new, as Rehn Draft I had instead used the term "contact",221 and Slovenia's proposal on 15 May 2009 used the words "territorial contact".222
115.
Slovenia disputes Croatia's assertion that its proposed amendments were not accepted and that Slovenia "did not obtain its red line."223 Slovenia highlights that a reference to the "vital interests" of the Parties was added in the Preamble of Rehn Draft II. It adds that "[d]uring the negotiations, Croatia was fully aware that Slovenia considered its territorial contact with the high seas as its vital interest,"224 whereas "Croatia's vital interest was the continuation of the [EU] accession process with the aim of concluding the accession negotiations as soon as possible."225 Slovenia also notes that "the determination of Slovenia's junction to the high sea was separated into a distinct element of the tribunal's task under Article 3(1)(b), and was thus differentiated from the question of the regime for use of the relevant maritime areas," noting that "[i]n Rehn I they had been together."226 Slovenia notes further that the phrase "Slovenia's contact to the High Sea" that had been used in Rehn Draft I was changed to "Slovenia's junction to the High Sea" in Rehn Draft II," and that the "applicable law provision was further expanded with respect to the determination of... Slovenia's junction to the high sea and the regime for use."227 As such, Slovenia argues, "Croatia's understanding of 'junction' was clear" and "the 'vital interests' quid pro quo was well understood."228
116.
In particular, Slovenia asserts that its vital interest was "clearly stated several times,"229 including during the negotiations between 1992 and 2001, during the 2001 Draft Agreement negotiations, and during the 2009 negotiations of the Arbitration Agreement. It considers that accommodation of its vital interests was the "the sine qua non condition for any settlement of the maritime boundary dispute throughout the negotiations, including for the conclusion of the Arbitration Agreement."230 Slovenia also highlights that its vital interest is referred to in documents adopted by its Government and Parliament, such as the Memorandum on the Bay of Piran,231 the Standpoints and Conclusions of the National Assembly,232 positions submitted in the context of the mediation with Dr. William Perry in 1999,233 the Decision on the Protection of the Interest of the Republic of Slovenia in the Process of Accession of the Republic of Croatia to the North Atlantic Treaty of 18 February 2009,234 and the Resolution on National Strategy adopted on 26 March 2010.235 Slovenia alleges that "Croatia never protested or objected to such an understanding of Slovenia's vital strategic interest."236
117.
For its part, Croatia notes that Slovenia's proposals that the "vital interests of the parties" be introduced "as a criterion for the Tribunal's determinations and to permit the Tribunal to decide the matter "ex aequo et bono" had been rejected.237
118.
Rehn Draft II was rejected by Croatia "a few hours before the meeting"238 for its finalization. Croatia explains that "as a matter of principle it was unacceptable for Croatia to consider any further amendments or modifications," given that it had accepted Rehn Draft I without making any comments or amendments on the understanding that it had been presented to the Parties on a "take-it-or-leave-it" basis.239 The trilateral negotiations with the European Commission were thereafter suspended.240
119.
Croatia characterizes the respective stances of the Parties as equally "unhappy with the Rehn II proposal": Slovenia "because none of its substantial amendments were incorporated into it," and Croatia "because it had accepted the Rehn I text on a 'take it or leave it basis' without proposing any amendments to that Draft."241 As such, Croatia argues that "Slovenia declined to accept the Rehn II proposal."242
120.
Slovenia denies that Croatia's evidence supports the inference that Slovenia was dissatisfied with Rehn Draft II, submitting that Slovenia's own evidence "shows that Slovenia was willing to accept Rehn's June 2009 proposal [Rehn Draft II] as it was, and that it was Croatia that had difficulties to accept it."243 Slovenia further disputes Croatia's suggestion that Slovenia's proposals were not incorporated into Rehn Draft II, highlighting Rehn Draft II's reference to "vital interests" in its Preamble and changes to Articles 3 and 4 of the draft which reflected Slovenia's amendments.244
121.
On 31 July 2009, the new Croatian Prime Minister, Jadranka Kosor, and her Slovenian counterpart, Borut Pahor, resumed bilateral negotiations. An "oral arrangement"245 was reached on the continuation of Croatia's accession negotiations and the resolution of the border dispute, relating, according to Slovenia, to the following three points:

- appropriate elimination of Croatian prejudicial references in the EU accession process,

- Slovenian consent to the continuation of Croatian EU accession process, and

- Agreement on the resolution of border dispute based on [Rehn Draft II]246

122.
With respect to the third aspect, Croatia asserts that the Parties agreed "that nothing in the Arbitration Agreement would prejudge any specific outcome of the arbitration, but would simply direct the Tribunal to apply the applicable law to the tasks assigned to it."247
123.
On 11 September 2009, the Croatian Prime Minister informed the Swedish Presidency of the Council of the European Union of the agreement reached between the Parties, stating, inter alia, that:

In this context, with the aim of addressing Slovenia's reservations on several negotiations chapters, on behalf of the Croatian Government, I would like to declare that no document in our accession negotiations with the European Union can prejudge the final resolution of the border dispute between Croatia and Slovenia.

The resolution or the way of resolution of the border dispute will be pursued through the continuation of the talks between Croatia and Slovenia facilitated by the European Union. It was also agreed that both sides will continue negotiations on border dispute settlement with the understanding either to submit the border dispute to the Arbitral Tribunal or to conclude the bilateral agreement on common state border in accordance with the key priorities expressed in the Accession Partnership with Croatia (Council Decision 2008/119/EC) and with the aim to fulfill them. Both sides also agreed that the 25 June 1991 [sic] presents the basis for the resolution of the border dispute and that no document or action undertaken unilaterally by either side after that date shall be accorded legal significance for the task of any arbitral tribunal, or any other procedure relating to the settlement of the border dispute between Croatia and Slovenia and cannot in any way prejudge the outcome of the process.248

124.
At a trilateral meeting on 2 October 2009, the Parties discussed the procedural aspects of the Arbitration Agreement. In particular, it was agreed that Article 7(1) of Rehn Draft II (which read "[t]he Arbitral Tribunal shall strive to issue its award within one year after its establishment") would be eliminated and that a new text was to be negotiated.249
125.
On the other hand, Slovenia and Commissioner Rehn opposed the renegotiation of the provisions in Article 3(1)(b) and Article 4(b), which had been challenged by Croatia on the basis that they "prejudiced the final resolution of the dispute and were very close to Slovenian positions."250
126.
At meetings between 20 and 26 October 2009, the Parties agreed to the new language of Article 7(1): "the Arbitral Tribunal shall issue its award expeditiously"251 and of Article 11(3): "All procedural timelines expressed in this Agreement shall start to apply from the date of the signature of Croatia's EU Accession Treaty." Slovenia summarizes this negotiation as follows: "For Croatia, it was extremely important that the award of the Tribunal would not be delivered before Croatian accession to the European Union, while for Slovenia it was of utmost importance that the language of the two substantive articles (i.e., Articles 3 and 4) would not be changed."252
127.
At a meeting of the two Prime Ministers' foreign relations advisers on 26 October 2009, the Parties agreed on the final text of the Arbitration Agreement, which was subsequently communicated by telefax to the EU Presidency.253
128.
According to Croatia, at a meeting in Zagreb on 26 October 2009, Slovenia's Prime Minister agreed that "Croatia could issue a statement to the effect that nothing in the Arbitration Agreement should be understood by the Tribunal as manifesting Croatia's agreement that Slovenia possesses (or should be granted) territorial contact with the high seas" and that Croatia "would issue the Statement after the signature of the Arbitration Agreement, but before ratification by the Croatian Parliament."254
129.
With respect to such a statement, Slovenia states that it "did not agree to the issue of such unilateral statement, either at the time of the signature of the Agreement or at any later time."255 Moreover, it disputes Croatia's assertion that the Parties "jointly informed the Presidency" that they had agreed that Croatia could issue a declarative statement.256 Slovenia specifically denies that the evidence put forth by Croatia "show[s] that Slovenia agreed to the withdrawal of the clarification of the word 'junction' from the text of the Arbitration Agreement in exchange for a unilateral 'clarification' by Croatia."257 Slovenia asserts that Croatia "reopened the issue of the joint statement" after agreement on the final text of the Arbitration Agreement. Slovenia disagreed with the substance of the proposed statement, which, in its view "was in contradiction of all the drafting history of the Agreement."258 According to Slovenia, on the day of the signing ceremony "it was still uncertain what Croatia's intentions were and whether Croatia would make a unilateral declaration at the signing ceremony."259
130.
On 2 November 2009, the Croatian Parliament adopted a "Decision on Giving Consent to the Government of the Republic of Croatia to sign the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia and on giving consent to issuing the Statement on non-prejudice."260 In its Article 2 it authorized the Croatian Government to sign "a Statement of non-prejudice... as formulated in the text presented by document of the Government of the Republic of Croatia from 30 October 2009."

10. Conclusion and Ratification of the Arbitration Agreement

131.
On 4 November 2009, the Prime Ministers of the Parties signed the Arbitration Agreement as well as a Joint Declaration.261 The signature took place at Prime Ministers' level and in the presence of the EU presidency, which at the time was held by the Prime Minister of Sweden, Mr. Fredrik Reinfeldt.262
132.
On 9 November 2009, Croatia made the following statement ("Croatia's Declaration"):

With regard to the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed in Stockholm on 4 November 2009,

The Republic of Croatia is issuing the following statement, on the content of which the Croatian and Slovenian side jointly informed the Presidency of the Council of the European Union and the United States of America on 27 October 2009:

Nothing in the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia shall be understood as Croatia's consent to Slovenia's claim to its territorial contact with the high seas.263

133.
Croatia reiterates that the issuance of its Declaration had been "previously agreed" and that its content had been previously shared with Slovenia, the Presidency of the Council of the EU (Sweden) and the United States of America.264 Slovenia, on the other hand, repeats that it "did not agree" to the issuance of the Declaration "either at the time of signature of the [Arbitration] Agreement or at any later time."265 Slovenia emphasises that in interviews during the referendum campaign, representatives in Ljubljana of the Presidency of the Council of the EU and of the United States denied that Croatia and Slovenia had jointly informed them of the Croatian statement and the Croatian statement was therefore unilateral.266 According to Croatia, both Sweden and the United States had been made aware of the content of its Statement before the signing of the Arbitration Agreement.267
134.
Slovenia asserts that it was informed of Croatia's Declaration on 9 November 2009 through diplomatic channels.268 Croatia's diplomatic note in this regard reads as follows:

The Republic of Croatia is issuing the following statement, on the content of which the Croatian and Slovenian sides jointly informed the Presidency of the Council of the European Union and the United States of America on 27 October 2009;

Nothing in the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia shall be understood as Croatia's consent to Slovenia's claim to its territorial contact with the high seas.

As agreed with the Slovenian side, the Republic of Croatia is issuing this Statement after the signature of the Arbitration Agreement and before the ratification of the Arbitration Agreement in the Republic of Croatia and the Republic of Slovenia, in accordance with Article 11, paragraph 1 of the Arbitration Agreement.269

135.
On 19 November 2009, Slovenia responded to Croatia through diplomatic channels. Its note enclosed a Declaration issued in response to Croatia's Declaration, which reads, in part:

With regard to the sovereign right of any State to issue unilateral declarations and while the Republic of Slovenia took note of the intent of the Republic of Croatia to issue a unilateral declaration to the said Arbitration Agreement, the Republic of Slovenia declares that it has not agreed with the Statement of the Republic of Croatia from 9 November 2009 nor with its content;

the Republic of Slovenia declares that in accordance with international law the unilateral statement given with respect to the said Arbitration Agreement cannot affect its substance and considers the Statement of the Republic of Croatia from 9 November 2009 as unacceptable and without any effect for the arbitral proceedings;

the Republic of Slovenia declares that the task of the Arbitral Tribunal shall be to determine the territorial contact of the Republic of Slovenia's territorial sea with the High Seas (Slovenia's junction to the High Sea), thus the preservation of the right of Slovenia to the junction to the High Sea as of the day of its independence, 25 June 1991;

the Republic of Slovenia also states that the said Arbitration Agreement shall be interpreted by the Arbitral Tribunal in accordance with the ordinary meaning to be given to the terms of the provisions of the Arbitration Agreement alone.270

136.
On 20 November 2009, the Croatian Parliament adopted the Law on the Ratification of the Arbitration Agreement together with Croatia's Declaration.271
137.
In a diplomatic note of 6 December 2010, Slovenia recalled that "the content of the Croatian Statement of 9 November 2009 was also rejected by the representatives of the United States of America and of the Kingdom of Sweden in their public statement in May 2010."272
138.
According to Slovenia, the Arbitration Agreement provoked considerable political interest in its public opinion, "not least because of the confusion caused by Croatia's unilateral statement."273 This made the Slovenian Government request a review by the Constitutional Court of the constitutionality of the Arbitration Agreement. In an Opinion of 18 March 2010, the Constitutional Court ruled that the Arbitration Agreement "was not inconsistent with Slovenian constitutional order."274
139.
On 19 April 2010, the Slovenian Parliament adopted the Act Ratifying the Arbitration Agreement together with its Declaration disagreeing with Croatia's Declaration.275 The Arbitration Agreement was narrowly approved in a subsequent "legislative referendum."276
140.
In addition, on 7 October 2010, following a further request for constitutional review, this time in respect of the Act Ratifying the Arbitration Agreement, the Constitutional Court of Slovenia ruled that the latter was not inconsistent with the Constitution of Slovenia.277
141.
On 25 November 2010, the Parties exchanged diplomatic notes by which they expressed consent to be bound by the Arbitration Agreement.278 According to Slovenia, this "exchange of instruments of ratification... did not include any statement, nor was any statement attached to the Arbitration Agreement upon its joint registration with the United Nations."279
142.
On 29 November 2010, the Arbitration Agreement entered into force.280
143.
On 25 May 2011, the Arbitration Agreement was jointly submitted by the Parties for registration in accordance with Article 102 of the Charter of the United Nations.281 The Joint Submission of the Parties to the Secretary-General of the United Nations read in part as follows:

We would like to inform that the joint submission for registration of the Arbitration Agreement, without submission of the respective unilateral interpretative statements done by Croatia and Slovenia, which form an integral part of the acts of ratification approved by the Parliaments in each state and are without attempt to amend the Arbitration Agreement, does not in any way affect their legal status with regard to the Arbitration Agreement.

In addition, we would further like to inform that the Arbitration Agreement is not accompanied by any jointly agreed statement.282

144.
A copy of the Arbitration Agreement is annexed to the present Award.

II. HISTORY OF THE PROCEEDINGS

145.
Article 2 of the Arbitration Agreement provides:

Article 2. Composition of the Arbitral Tribunal

(1) Both Parties shall appoint by common agreement the President of the Arbitral Tribunal and two members recognized for their competence in international law within fifteen days drawn from a list of candidates established by the President of the European Commission and the Member responsible for the enlargement of the European Commission. In case that they cannot agree within this delay, the President and the two members of the Arbitral Tribunal shall be appointed by the President of the International Court of Justice from the list.

(2) Each Party shall appoint a further member of the Arbitral Tribunal within fifteen days after the appointments referred to in paragraph 1 have been finalised. In case that no appointment has been made within this delay, the respective member shall be appointed by the President of the Arbitral Tribunal.

(3) If, whether before or after the proceedings have begun, a vacancy should occur on account of death, incapacity or resignation of a member, it shall be filled in accordance with the procedure prescribed for the original appointment.

146.
Pursuant to Article 2(1) of the Arbitration Agreement, on 17 January 2012, the Parties agreed to appoint Judge Gilbert Guillaume as the presiding arbitrator and to appoint Professor Vaughan Lowe and Judge Bruno Simma as arbitrators. As provided for in the Arbitration Agreement, the European Commission assisted the Parties in the appointment process.
147.
Pursuant to Article 2(2) of the Arbitration Agreement, on 26 January 2012, Slovenia appointed Dr. Jernej Sekolec as arbitrator, and, on 31 January 2012, Croatia appointed Professor Budislav Vukas as arbitrator.
148.
Following consultation with the Parties, Terms of Appointment were signed on 4 April 2012 by Croatia and on 12 April 2012 by Slovenia and the President of the Tribunal. By agreement of the Parties, the Permanent Court of Arbitration ("PCA") acts as Registry in this arbitration pursuant to Section 7 of the Terms of Appointment.
149.
Pursuant to Section 8 of the Terms of Appointment, a contact point was established with the European Commission for any matter that the Tribunal would like to bring to the Commission's attention. Mr. Joost Korte, Deputy Director-General for Enlargement was appointed for this purpose by the European Commission on 7 February 2012. On 30 October 2013, the European Commission notified the Registry that the role of the contact point was taken over by Mr. Lucio Gussetti, Principal Adviser at the Legal Service of the European Commission.
150.
On 13 April 2012, the Tribunal held a First Procedural Meeting with the Parties at the Peace Palace, in The Hague.
151.
On 1 May 2012, the Tribunal, having considered the discussion at the First Procedural Meeting, issued Procedural Order No. 1, which addressed, among other items, the timetable for the Parties' written pleadings, the form of written submissions and communications, and the submission of documentary, witness and expert evidence. The Order also recorded the Parties' agreement that the Award of the Tribunal be made public.
152.
Pursuant to paragraph 2.1.3 of Procedural Order No. 1, in the event that a Party wished to submit a Reply in response to the Counter-Memorial of the other Party, it should file a request to that effect by 30 November 2013. In the event that the Tribunal, having heard the views of the other Party, granted a further round of written submissions, each Party should have the opportunity to submit a Reply by 26 March 2014.
153.
Under paragraph 2.2 of Procedural Order No. 1, the Tribunal reserved the period from 26 May 2014 to 13 June 2014 for a hearing not exceeding two weeks.
154.
In paragraph 8 of Procedural Order No. 1, the Tribunal also reserved any decision on the desirability of a site visit until after receipt of the Parties' Memorials and requested the Parties to reserve the period from 6 May to 12 May 2013.
155.
On 7 February 2013, following the Parties' joint proposal for amendment to Procedural Order No. 1, the Tribunal issued Procedural Order No. 2, amending certain provisions concerning the modalities of filing of the Parties' written submissions.
156.
On 11 February 2013, the Parties submitted their Memorials and accompanying documents, in both electronic and hard copy format ("Croatia's Memorial" and "Slovenia's Memorial").
157.
By letter dated 15 April 2013, the Tribunal notified the Parties of its decision not to conduct a site visit in May 2013. In the same letter, the Tribunal informed the Parties that, given that consultations of the Registry with the Parties did not result in identifying convenient dates for a site visit in 2014, the Tribunal had decided to defer any decision on the desirability of a site visit until its review of the Parties' Counter-Memorials.
158.
On 11 November 2013, the Parties filed their Counter-Memorials and accompanying documents, in both electronic and hard copy format ("Croatia's Counter-Memorial" and "Slovenia's CounterMemorial").
159.
On 26 November 2013, Croatia submitted a list correcting certain errata in its Counter-Memorial, and offered to provide a corrected version of its Counter-Memorial.
160.
By letter dated 29 November 2013, Slovenia requested that the Parties be allowed to submit a Reply to the Counter-Memorials. By letter dated 3 December 2013, Croatia opposed this request.
161.
On 2 December 2013, the President of the Tribunal held a telephone conference with the Parties regarding the organization of the hearing. Among other agenda items, each Party introduced its proposed schedule of the hearing and presented its view on the desirability of a Reply round of written submissions.
162.
On 23 December 2013, the Tribunal, having considered the Parties' views expressed during the 2 December 2013 telephone conference, issued Procedural Order No. 3. Paragraph 1 of Procedural Order No. 3 granted Slovenia's request of 29 November 2013 that the Parties be allowed to submit a Reply to the Counter-Memorials.
163.
In paragraph 2 of Procedural Order No. 3, the Tribunal set out the hearing schedule for the hearing to be conducted from Monday, 2 June 2014 to Friday, 13 June 2014. Pursuant to paragraph 3 of Procedural Order No. 3, no submission of witness evidence or expert opinions would be allowed on the occasion of the Reply or the hearing. Paragraph 4 of Procedural Order No. 3 related to the admissibility of new documents after the closure of the written proceedings.
164.
On 21 January 2014, following a request from Slovenia, the Tribunal issued Procedural Order No. 4, which modified the hearing schedule that had been set out in Procedural Order No. 3.
165.
On 26 March 2014, the Parties submitted their Replies and accompanying documents in hard copy ("Croatia's Reply" and "Slovenia's Reply"). The Parties also submitted copies in electronic format on 26 March 2014 (Slovenia) and 27 March 2014 (Croatia) respectively.
166.
On 24 April 2014, the Republic of Croatia submitted corrected transparency sheets pertaining to the maps contained in Volumes III/4 and III/5 of its Reply.
167.
On 28 April 2014, the PCA informed the Parties that the Tribunal was considering the appointment of Mr. Gérard Cosquer as its cartographic expert and Mr. David H. Gray as its hydrographic expert pursuant to paragraph 7.1 of Procedural Order No. 1, and communicated their respective curricula vitae and Draft Terms of Reference to the Parties.
168.
By letter dated 1 May 2014, the PCA informed the Parties of Mr. Cosquer's and Mr. Gray's responses to the PCA's request to "disclose any circumstances that the Parties or the Tribunal should be aware of, although they may not rise to the level of conflict of interest." Following indications from the Agents of both Parties to the Registrar that neither Party had any objection to the appointment of the proposed experts, on 15 May 2014, the Tribunal appointed Mr. Gérard Cosquer as an independent cartographic expert, and Mr. David Gray as an independent hydrographic expert.
169.
On 26 May 2014, Croatia submitted corrected transparency sheets pertaining to the maps contained in Volumes III/1 and III/6 of its Reply.
170.
On 29 May 2014, the PCA issued a Press Release communicating the hearing schedule to the public.
171.
The hearing took place from 2 to 13 June 2014 in the Peace Palace, The Hague, the Netherlands. The following individuals participated on behalf of the Parties:

Republic of CroatiaRepublic of Slovenia
Professor Maja Seršic Head of the Chair of International Law, Faculty of Law, University of Zagreb as Agent; H.E. Ms. Andreja Metelko-Zgombic Ambassador, Director General for EU Law, International Law and Consular Affairs, Ministry of Foreign and European Affairs of the Republic of Croatia as Co-Agent; H.E. Ms. Vesna Pusic First Deputy Prime Minister and Minister of Foreign and European Affairs of the Republic of Croatia H.E. Ms. Vesela Mrden Korac Ambassador of the Republic of Croatia to the Kingdom of the Netherlands, The Hague Professor Vladimir Ibler Professor, Fellow of the Croatian Academy of Sciences and Arts Mr. Krešo Glavač Chief of Cabinet, Ministry of Foreign and European Affairs of the Republic of Croatia Ms. Danijela Barišic Spokesperson, Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Davor Ljubanovic Counsellor, Embassy of the Republic of Croatia to the Kingdom of the Netherlands Professor Mirjam Škrk Head of the Chair of International Law, Faculty of Law, University of Ljubljana, former Judge and Vice-President of the Constitutional Court of the Republic of Slovenia H.E. Ms. Simona Drenik, LL.M. Minister Plenipotentiary, Legal Advisor, Cabinet of the Minister, Ministry of Foreign Affairs of the Republic of Slovenia as Agents; H.E. Mr. Karl Erjavec Deputy Prime Minister and Minister of Foreign Affairs of the Republic of Slovenia H.E. Mr. Roman Kirn Ambassador of the Republic of Slovenia to the Kingdom of the Netherlands and Permanent Representative to the OPCW H.E. Ms. Vlasta Vivod Head of Minister's Office, Ministry of Foreign Affairs of the Republic of Slovenia as Special Advisors; Mr. Rodman R. Bundy Member of the New York Bar, Eversheds LLP, Singapore Ms. Alina Miron Researcher, Centre de droit international de Nanterre (CEDIN), Université de Paris Ouest, Nanterre-La Défense Dr. Daniel Muller

Ms. Nelija Vržina, Third Secretary, Embassy of the Republic of Croatia to the Kingdom of the Netherlands as Members of the Delegation; Professor James Crawford, A.C., S.C., F.B.A. Whewell Professor of International Law, University of Cambridge, Member of the Institut de Droit international, Barrister, Matrix Chambers, London Professor Philippe Sands, Q.C. Professor of International Law, University College London, Barrister, Matrix Chambers, London Mr. Paul S. Reichler Partner, Foley Hoag, Co-Chair of the International Litigation and Arbitration Department, Washington, D.C. Mr. Andrew B. Loewenstein Partner, Foley Hoag, Boston Professor Zachary Douglas Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Matrix Chambers, London Professor Davor Vidas Research Professor, Director of the Law of the Sea and Marine Affairs Programme, FNI, Oslo as Counsel and Advocates; Ms. Anjolie Singh Member of the Indian Bar, Delhi Mr. Trpimir Mihael Šošic Senior Assistant Lecturer, Faculty of Law, University of Zagreb Mr. Yuri Parkhomenko Foley Hoag, Washington, D.C. Mr. Zoran Bradic Head of the Department for Borders, Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Sebastian Rogač Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Goran Jutriša Legal Expert Consultant in International Law, Researcher, Centre de droit international de Nanterre (CEDIN), Université de Paris Ouest, Nanterre-La Défense Professor Alain Pellet Université de Paris Ouest, Nanterre-La Défense, Former Chairman of the United Nations International Law Commission, Member of the Institut de Droit International Mr. Eran Sthoeger, LL.M. New York University School of Law Sir Michael Wood, K.C.M.G. Member of the International Law Commission, Member of the English Bar as Counsel and Advocates; Ms. Natasha Harrington Member of the English Bar, Eversheds LLP, Paris as Assistant to Counsel; Ms. Héloíse Bajer-Pellet Avocat, Member of the Paris Bar Ms. Tessa Barsac, LL.M. Consultant in International Law Dr. Robin Cleverly, C.Geol, F.G.S. Head, Law of the Sea Group, UK Hydrographic Office Mr. Branko Dekleva, M.A. First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Mr. Vlado Ekmečič First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Barbara Granda, LL.M. First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia Mr. Igor Karničnik, M.Sc. Head of Hydrography Department, Geodetic Institute of Slovenia Mr. Primož Kete Head of Field for Cartography and Topography, Geodetic Institute of Slovenia

as Counsel; Mr. Ilija Grgic Head of the Department for State Border, State Geodetic Administration of the Republic of Croati Mr. Davor Kršulovic State Geodetic Administration of the Republic of Croatia Ms. Davorka Saric Ministry of Foreign and European Affairs of the Republic of Croatia Mr. Marjan Čuljak Ministry of Foreign and European Affairs of the Republic of Croatia Ms. Nancy Lopez Foley Hoag, Washington, D.C. Ms. Tracy Roosevelt Foley Hoag, Boston Mr. Pedro Ramirez Foley Hoag, Washington, D.C. as Assistants; Ms. Victoria Taylor International Mapping, Maryland Mr. Alex Tait International Mapping, Maryland as Technical Assistants. Ms. Špela Košir First Secretary, Ministry of Foreign Affairs of the Republic of Slovenia a Mr. Primož Koštrica Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Professor Martin Pratt International Boundaries Research Unit, Department of Geography, Durham University Mr. Samo Rus Adviser, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Sonja Slovša Končan Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Mateja Štrumelj Piškur, LL.M. Minister Counsellor, Ministry of Foreign Affairs of the Republic of Slovenia Ms. Vesna Žveglič Senior Adviser, Ministry of Foreign Affairs of the Republic of Slovenia as Experts and Advisors; Ms. Diana Podgornik Administrative Assistant, Ministry of Foreign Affairs of the Republic of Slovenia as Support Staff.

172.
At the hearing, Members of the Tribunal put questions to the Parties, to which replies were given orally in the second round of pleadings and, in respect of certain technical questions, in writing.
173.
On 17 June 2014, the PCA issued a press release on conclusion of the hearing, including a summary of both Parties' positions, the content of which was agreed between the Parties.
174.
On 30 April 2015, Croatia forwarded to the Tribunal a letter addressed to Slovenia, in which Croatia asked Slovenia to explain two statements made by the Slovenian Minister of Foreign Affairs on Slovenian television on 7 January 2015 and 22 April 2015 concerning the possible outcome of the arbitration.
175.
Slovenia answered on 1 May 2015, submitting "that Slovenia has no information whatsoever concerning the outcome of the arbitration, nor any 'informal channel of communication with the Tribunal'." It added that Slovenia had not in any way sought to "bring pressure on the Tribunal."
176.
In response to the letters dated 30 April 2015 and 1 May 2015, the Tribunal expressed concerns over the suggestion that one party might have access to confidential information related to the Tribunal's deliberations. It took note of both Parties' acknowledgement of their obligations under Article 10(1) of the Arbitration Agreement and affirmed that the arbitrators and the Parties' representatives were to refrain from ex parte communications.
177.
By letter dated 9 July 2015, the Tribunal informed the Parties that the Award would be rendered on 17 December 2015.
178.
On 22 July 2015, Serbian and Croatian newspapers published transcripts and audio files of two telephone conversations reportedly involving the arbitrator appointed by Slovenia, Dr. Jernej Sekolec, and Ms. Simona Drenik, then one of two Agents designated by Slovenia. The conversations were reported to have taken place on 15 November 2014 and 11 July 2015.
179.
On 23 July 2015, the Tribunal notified the Parties that Dr. Sekolec had resigned from the Tribunal, and invited Slovenia to appoint an arbitrator to replace him.
180.
Croatia transmitted translated extracts of the reported telephone conversations to the Tribunal on 24 July 2015, and asked that the Tribunal suspend the proceedings. Croatia also invited "the remaining members of the Tribunal to review the totality of the materials presented, and reflect on the grave damage that ha[d] been done to the integrity of the entire proceedings, as well as to the public perceptions of the legitimacy of the process."
181.
On 26 July 2015, Slovenia expressed its "deep regret" about the facts reported in the Croatian press and informed the Tribunal of Ms. Drenik's resignation from her position as Agent of Slovenia. Slovenia however opposed Croatia's request to suspend the arbitral proceedings, and communicated this to the Tribunal by letter dated 27 July 2015. The following day, 28 July 2015, Slovenia appointed Mr. Ronny Abraham, President of the ICJ, to the Tribunal.
182.
On 30 July 2015, the Tribunal notified the Parties that Professor Budislav Vukas had resigned from the Tribunal and, accordingly, invited Croatia to appoint an arbitrator to replace him as member of the Tribunal.
183.
By note verbale of 30 July 2015, Croatia notified Slovenia that it considered Slovenia to have "engaged in one or more material breaches of the Arbitration Agreement," entitling Croatia to terminate the Arbitration Agreement "in accordance with Article 60, paragraph 1 of the Vienna Convention on the Law of Treaties." Croatia thus provided Slovenia with "the notification pursuant to Article 65, paragraph 1 of the Vienna Convention that it proposes to terminate forthwith the Arbitration Agreement" and added that "from the date of this note the Republic of Croatia ceases to apply the Arbitration Agreement."
184.
The following day, 31 July 2015, Croatia informed the Tribunal of the content of the note verbale, and that it could not "further continue the process [of the present arbitration] in good faith."
185.
Slovenia informed Croatia by letter of 31 July 2015 that the action thus taken had, in its opinion, "no basis in international law" and that the Arbitration Agreement "is and remains the only valid legal basis for settling the border issue between the two countries." Slovenia informed the Tribunal on 13 August 2015 that it objected to Croatia's notification of the termination of the Arbitration Agreement, and stated that the Tribunal had the power and the duty to continue the proceedings.
186.
On 3 August 2015, Judge Abraham notified the Tribunal of his resignation. Judge Abraham's resignation was communicated to the Parties shortly thereafter. The Tribunal accordingly invited Slovenia to appoint an arbitrator to replace Judge Abraham as member of the Tribunal.
187.
Slovenia informed the Tribunal on 13 August 2015 that "in order to preserve the integrity, independence and impartiality of the Arbitral Tribunal and the ongoing proceedings, it [would] refrain from appointing a member of the Tribunal to replace Judge Abraham." Instead, Slovenia requested "the President of the Arbitration Tribunal, Judge Gilbert Guillaume, in exercise of his powers under Article 2, paragraph 2, of the Arbitration Agreement," to appoint a member of the Tribunal.
188.
On 25 September 2015, the Tribunal informed the Parties that the President, in accordance with the procedure for the replacement of party-appointed arbitrators in Article 2, paragraphs 2 and 3 of the Arbitration Agreement, had appointed H.E. Ambassador Rolf Einar Fife, a national of Norway, to succeed Judge Abraham, and Professor Nicolas Michel, a national of Switzerland, to succeed Professor Vukas. The Parties were provided with a signed Declaration of Acceptance and Statement of Impartiality and Independence from each of Ambassador Fife and Professor Michel.
189.
By letter dated 1 December 2015, the Tribunal fixed a procedural calendar for further written and oral submissions "concerning the legal implications of the matters set out in Croatia's letters of 24 July 2015 and 31 July 2015." The Tribunal directed the Parties to file their written submissions by 15 January 2016 (Croatia) and 26 February 2016 (Slovenia). In addition, the Tribunal informed the Parties that it intended to hold a hearing on these matters on 17 March 2016, requesting the Parties to confirm by 9 December 2015 their availability on that date.
190.
By the same letter, the Tribunal released to the Parties two internal documents that Dr. Sekolec had submitted in the course of the proceedings: a note entitled "personal and confidential notes regarding the border on or around Dragonja" provided to the Tribunal in January 2015, and a document entitled "Mura River Sector: Various effectivités by Slovenia" provided to the Registry in November 2014. The Tribunal also informed the Parties that these were the only documents provided by Dr. Sekolec to the Tribunal or the Registry.
191.
On 7 December 2015, in response to the Tribunal's letter dated 1 December, Slovenia confirmed its availability for the hearing on 17 March 2016. Croatia did not respond to the Tribunal's letter.
192.
On 26 December 2015, the Tribunal confirmed to the Parties that the hearing would be held on 17 March 2016.
193.
Croatia did not make any submission by the 15 January 2016 deadline stipulated in the Tribunal's letter to the Parties dated 1 December 2015.
194.
The Written Submission of Slovenia ("Written Submission"), with accompanying documents, was filed on 26 February 2016. In its Written Submission, Slovenia requested the Tribunal to adjudge and declare that the "Arbitration Agreement of 4 November 2009 remains in force between the Parties," and that the "proceedings pursuant to the Arbitration Agreement shall continue until the Tribunal issues a final award." The request was reiterated by Slovenia at the hearing on 17 March 2016.
195.
A hearing concerning the legal implications of the matters set out in Croatia's letters of 24 July 2015 and 31 July 2015 was held on 17 March 2016 at the Peace Palace, The Hague, the Netherlands.
196.
Croatia did not appear at the hearing. The Tribunal was apprised of a press release of the Croatian Ministry of Foreign and European Affairs dated 14 March 2016 and of a note verbale from the Permanent Mission of the Republic of Croatia to the United Nations dated 16 March 2016, in which Croatia confirmed that it did not intend to participate in the hearing.
197.
On 30 June 2016, the Tribunal issued a Partial Award addressing the legal consequences for the present arbitral proceedings of the contacts between Dr. Sekolec and Ms. Drenik. In its Partial Award, the Tribunal expressed its regret that Croatia had not availed itself of the opportunity to present formal pleadings and respond to questions from the Tribunal. The Tribunal noted, however, that it was a well-established principle of international procedural law that a unilateral decision to withdraw from dispute settlement proceedings cannot of itself bring such proceedings to a halt. In the context of the arbitration before it, the Tribunal observed that this principle is set out in Article 28 of the PCA's Optional Rules for Arbitrating Disputes between Two States ("PCA Optional Rules"), which apply in the present proceedings pursuant to Article 6(2) of the Arbitration Agreement.
198.
With respect to the question of jurisdiction, the Tribunal concluded that it "has jurisdiction under the provisions of the Arbitration Agreement and Article 21, paragraph 1 of the PCA Optional Rules, and in conformity with Article 65 of the Vienna Convention, to decide whether Croatia, acting under Article 60 of the Convention ha[d] validly proposed to Slovenia to terminate the Arbitration Agreement and ha[d] validly ceased to apply it."
199.
With respect to the question of the continuation of the proceedings, the Tribunal affirmed that it had not only the authority but also the duty to settle the land and maritime dispute which was submitted to it. The Tribunal emphasised in this regard that it was incumbent on it to safeguard the integrity of the arbitral process. The Tribunal thus recalled the resignations of Dr. Sekolec as arbitrator, of Ms. Drenik as Agent for Slovenia, and of Professor Vukas as arbitrator. The Tribunal also recalled that, pursuant to the relevant provisions of the Arbitration Agreement, the President of the Tribunal had appointed as new members of the Tribunal H.E. Ambassador Rolf Einar Fife and Professor Nicolas Michel. The Tribunal stated that no doubt had been expressed on the impartiality or on the independence of the three remaining arbitrators or of the two new arbitrators. It was therefore concluded that the Tribunal was properly recomposed.
200.
The Tribunal noted, for the avoidance of doubt, that since Dr. Sekolec and Professor Vukas had resigned as arbitrators, their views expressed in prior deliberation meetings were of no relevance for the work of the Tribunal in its present composition. Accordingly, no account would be had of their various deliberation notes, which they had circulated at earlier stages of these proceedings in their capacity as arbitrators. Further, in the interests of transparency, the two documents submitted by Dr. Sekolec to the Tribunal had been released to the Parties. The Tribunal observed in this regard that Dr. Sekolec, through his notes, did not communicate to the Tribunal any new arguments or facts not already contained in the official record of the Tribunal.
201.
The Tribunal decided that Dr. Sekolec and Ms. Drenik acted in violation of provisions of the Arbitration Agreement and the Terms of Appointment adopted by the Parties and the Tribunal for the proceedings. The Tribunal then turned to the question as to whether there was a "material breach" of the Arbitration Agreement by Slovenia entitling Croatia to terminate the Agreement under Article 60, paragraph 1 of the Vienna Convention on the Law of Treaties. On the basis of the case law of international courts and tribunals, the Tribunal observed that termination of a treaty under Article 60, paragraph 1 due to a breach is warranted only if the breach defeats the object and purpose of the treaty. In this regard, the Tribunal stated:

219. The treaty in question is of a specific kind. It is an arbitration agreement. As stated by the ICJ, "when States sign an arbitration agreement, they are concluding an agreement with a very specific object and purpose: to entrust an arbitration tribunal with the task of settling a dispute in accordance with the terms agreed by the parties, who define in the agreement the jurisdiction of the tribunal and determine its limits". In the present case, the Arbitration Agreement notes in its preamble that, "through numerous attempts, the Parties have not resolved their territorial and maritime dispute in the course of the past years". It contemplates the constitution of an arbitral tribunal, fixes its composition and task and determines the applicable law and procedure to be followed. It finally states that "[t]he award shall be binding on the Parties and shall constitute a definitive settlement of the dispute". The Arbitration Agreement, accordingly, is premised on a desire for the peaceful and definitive settlement of a dispute that had theretofore been incapable of amicable resolution.

202.
The Tribunal therefore considered whether the breaches of the Arbitration Agreement by Slovenia were such as to defeat the object and purpose of the Arbitration Agreement:

223. [...]

In its first letter to the Tribunal of 24 July 2015, Croatia took note of the resignation of Ms. Drenik and Dr. Sekolec and, appropriately, invited "the remaining members of the Tribunal to review the totality of the materials presented, and reflect on the grave damage that has been done to the integrity of the entire proceedings, as well as to public perceptions of the legitimacy of the process".

224. The Tribunal has so proceeded. It has been recomposed, and no doubt has been expressed on the independence and impartiality of the Tribunal in its new composition. The records of the arbitration have been carefully reviewed, and the two documents submitted by Dr. Sekolec to the Tribunal in collaboration with Ms. Drenik have been communicated to the Parties. These documents contained no facts or arguments not already present in the written or oral pleadings. The Parties were provided an opportunity to identify any other breaches of confidentiality in the proceedings of which they were aware, and neither Party raised any further issues. The Tribunal is satisfied that the procedural balance between the Parties is secured.

225. Accordingly, and in view of the remedial action taken, the Tribunal determines that the breaches of the Arbitration Agreement by Slovenia do not render the continuation of the proceedings impossible and, therefore, do not defeat the object and purpose of the Agreement. Accordingly, Croatia was not entitled to terminate the Agreement under Article 60, paragraph 1 of the Vienna Convention. The Arbitration Agreement remains in force.

203.
Accordingly, the Tribunal affirmed its jurisdiction and unanimously decided:

(a) Slovenia has violated provisions of the Arbitration Agreement of 4 November 2009;

(b) The Arbitration Agreement remains in force;

(c) The arbitral proceedings pursuant to the Arbitration Agreement shall continue;

(d) After consultation with the Parties, the Tribunal shall determine the further procedural steps in this arbitration; and

(e) The Tribunal reserves any decision in respect of the ultimate allocation of costs until its final award; however, for the time being, Slovenia shall advance the sums necessary to cover costs that arise as a result of the prolongation of the proceedings beyond the originally envisaged timetable.

204.
On 4 November 2016, the Tribunal invited the Parties to indicate, by 18 November 2016, whether they wished to have an opportunity to make further submissions to the Tribunal in a short oral hearing. Pursuant to paragraph 231(d) of the Partial Award, the Tribunal would then determine the further procedure in this arbitration.
205.
On 18 November 2016, Slovenia responded to the effect that it did "not itself see the need for a further hearing." However, "if the Tribunal or Croatia consider that a further hearing would be useful, Slovenia would of course assist the Tribunal in any way it deems helpful." No response to the Tribunal's letter of 4 November 2016 was received from Croatia.
206.
On 29 March 2017, the Tribunal informed the Parties that it was satisfied that it was not necessary to request further submissions from the Parties or to put additional questions to the Parties. In accordance with Article 29 of the PCA Optional Rules, the Tribunal therefore declared the hearing in the present arbitration closed.

III. THE PARTIES' FORMAL REQUESTS

A. CROATIA'S REQUESTS

1. The Land Boundary

207.
In respect of the land boundary, in its Memorial, Croatia requested that the Tribunal adjudge and declare that:

(1) Under Article 3(1)(a) of the Arbitration Agreement, the land boundary between the Republic of Croatia and the Republic of Slovenia follows the line as depicted in the map found at Annex HR-A;283

(2) In accordance with that land boundary,

(a) no Slovenian personnel, whether military, civilian, police or security, shall be entitled to remain at the facility located at Sveta Gera in the Croatian Municipality of Ozalj;

(b) Slovenia shall not hinder communication within the Croatian Municipality of Sveti Martin na Muri, including the area of Murišce.284

208.
In its Counter-Memorial, Croatia requested that the Tribunal adjudge and declare that:

(1) Under Article 3(1)(a) of the Arbitration Agreement, the land boundary between the Republic of Croatia and the Republic of Slovenia follows the line depicted in the series of maps comprising Volume III of this Reply;285

(2) In accordance with that land boundary,

(i) no Slovenian personnel, whether military, civilian, police or security, shall be entitled to remain at the facility located at Sveta Gera in the Croatian Municipality of Ozalj;

(ii) Slovenia shall not hinder communication within the Croatian Municipality of Sveti Martin na Muri, including the area of Murišce.286

209.
In its oral submissions at the hearing, Croatia requested that the Tribunal adjudge and declare that:

(1) Under Article 3(1)(a) of the Arbitration Agreement, the land boundary between the Republic of Croatia and the Republic of Slovenia follows the line depicted in the series of maps comprising Volume III of the Counter-Memorial of the Republic of Croatia, subject to the technical corrections described in the Republic of Croatia's letters on 24th April 2014 and 26th May 2014. In addition to that, the areas not recorded in either Parties' [sic] cadastral records ("gaps") should also be delimited between the Parties as part of the Tribunal's award.

(2) In accordance with that land boundary, (i) no Slovenian personnel, whether military, civilian, police or security, shall be entitled to remain at the facility located at Sveta Gera in the Croatian Municipality of Ozalj; (ii) Slovenia shall not hinder communication within the Croatian Municipality of Sveti Martin na Muri, including the area of Murišce.

2. The Maritime Issues

210.
In respect of the maritime issues, in its Memorial and Counter-Memorial, Croatia requested that the Tribunal adjudge and declare that:

(3) Under Article 3(1)(a) of the Arbitration Agreement, the maritime boundary between the Republic of Croatia and the Republic of Slovenia commences at the land boundary terminus, located at 45°28'42.3"N - 13°35'08.5"E, and then follows a simplified equidistance line as depicted in Figure 9.7, until it reaches the point located at 45°35'15.48" N - 13°28'18.08"E;

(4) Under Article 3(1)(b) of the Arbitration Agreement, Slovenia's "Junction to the High Sea" does not imply or allow any territorial contact between Slovenia and the High Seas;

and

(5) Under Article 3(1)(b) and (c) of the Arbitration Agreement, Slovenia's "junction to the High Sea" and the "regime for the use of the relevant maritime areas" shall be, mutatis mutandis, that provided for by the regime of innocent passage through international straits, as set out in Article 45 of the 1982 Convention on the Law of the Sea, and subject to the existing IMO traffic separation scheme as may be modified from time to time.287

211.
In its oral submissions at the hearing, Croatia requested that the Tribunal adjudge and declare that:

(3) Under Article 3(1)(a) of the Arbitration Agreement, the maritime boundary between the Republic of Croatia and the Republic of Slovenia commences at the land boundary terminus, located at 45°28'42.3"N - 13°35'08.5"E (ETRS89, GRS80), and then follows a simplified equidistance line as depicted in Figure 9.7 of Croatia's Memorial, until it reaches the point located at 45°35'15.48"N - 13°28'18.08"E;

(4) Under Article 3(1)(b) of the Arbitration Agreement, "Slovenia's junction to the High Sea" does not imply or allow any territorial contact between Slovenia and the High Seas;

and

(5) Under Article 3(1)(b) and (c) of the Arbitration Agreement, no "Slovenian junction to the High Sea" is required and the issue of the "regime for the use of the relevant maritime areas" does not arise. If, however, the Tribunal were to hold that such a "junction" is required, then it should be by reference to the regime of passage under Part III of the 1982 Convention on the Law of the Sea, as further particularized in Croatia's written answers to the Tribunal's questions.

3. Reservation of Rights

212.
Croatia further noted in its Counter-Memorial that "[h]aving regard to the reservation of rights made in paragraph 5.60 of its Memorial, and the position adopted by the Slovenian Memorial in respect of the land boundary, Croatia reiterates its reservation of the right to amend its claims, as described in paragraphs 4.72 to 4.85 of this Counter Memorial, and as depicted in Figures CM 4.15 and CM 8.03, at a later stage of these proceedings."288
213.
As presented in the second round of oral submissions on this part of the boundary, Croatia ceased to maintain such a reservation.289

B. SLOVENIA'S REQUESTS

1. The Land Boundary

214.
In respect of the land boundary, in its Memorial and Counter-Memorial, Slovenia requested that the Tribunal adjudge and declare that:

1. The course of the land boundary between the Republic of Slovenia and the Republic of Croatia is as follows:

Mura River Sector

(a) From the confluence of the Rivers Krka and Mura (point B1), the land boundary runs westwards in the middle of the Mura River to a point north-east of Gibina.

(Maps 1, 2 and 3 in Volume 2 [of Slovenia's Memorial])290

Central Sector

Slovenske gorice

(b) From Gibina to the Presika Stream, the land boundary follows the eastern and southern boundaries of Slovenia's municipalities reflected in the records of the cadastral municipalities of Gibina, Šafarsko, Razkrižje, Veščica and Globoka, and encompassing 10 houses south of Razkrižje. It then follows the former State boundary between Austria and Hungary, reflected in the boundaries of Slovenia's municipalities, up to the point where it meets the Drava River to the south-east of Središče ob Dravi. (Maps 4, 5 and 6 in Volume 2 [of Slovenia's Memorial])

Drava River

(c) The land boundary then follows the middle of the Drava River from the point southeast of Središče ob Dravi, through the Ormož Lake (Ormoško jezero) to the point north-east of Zavrč where it reaches the municipality of Zavrč. (Maps 6, 7 and 8 in Volume 2 [of Slovenia's Memorial])

Haloze-Macelj

(d) From the Drava River to the Sotla River, the boundary follows the former State boundary between Austria and Hungary, reflected in the boundaries of Slovenian municipalities and Slovenia's cadastral records. (Maps 8, 9, 10 and 11 in Volume 2 [of Slovenia's Memorial])

Sotla River

(e) From the Haloze-Macelj area, the land boundary follows the middle of the Sotla River, passing through Lake Vonarsko (Vonarsko jezero), until it reaches outfall of the Sotla River into the Sava River. (Maps 11, 12, 13, 14, 15, 16, 17 and 18 in Volume 2 [of Slovenia's Memorial])

Sava and Bregana Rivers

(f) From the mouth of the Sotla River, the land boundary follows the middle of the Sava River up to the mouth of the Bregana River. It then continues in the middle of the Bregana River up to the foot of Gorjanci - Žumberačka gora in the vicinity of the settlement of Gabrovica. (Maps 18 and 19 in Volume 2 [of Slovenia's Memorial])

Gorjanci/Žumberak

(g) The land boundary then follows the southern and western boundaries of Slovenia's municipalities, including the military facility and the trigonometric point on Trdinov vrh, the settlement of Drage and the entire settlement of Brezovica pri Metliki, until it reaches the Kamenica River, to the east of the settlement with the same name. (Maps 19, 20, 21, 22 and 23 in Volume 2 [of Slovenia's Memorial])

Kamenica, Kolpa and Čabranka Rivers

(h) The land boundary continues to run in the middle of the Kamenica River to its outfall into the Kolpa River. From there, it follows the middle of the Kolpa River to the confluence of the Rivers Kolpa and Čabranka, continuing upstream on the latter and on its tributary until the river leaves the land boundary south of Novi Kot. (Maps 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 in Volume 2 [of Slovenia's Memorial])

Kras

(i) From the Čabranka River to mount Škodovnik, the land boundary follows the former State boundary between Austria and Hungary, reflected in the boundaries of Slovenian municipalities, the protocol of the 1909 Joint Commission, and boundary markers on the ground. (Maps 35 and 36 in Volume 2 [of Slovenia's Memorial])

Istria Sector

(j) The land boundary then continues to follow the boundaries of Slovenia's municipalities as reflected in Slovenia's cadastral records until it reaches the Bay of Piran. (Maps 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 in Volume 2 [of Slovenia's Memorial])

Bay of Piran

(k) Along the Bay of Piran, the boundary follows the coast of the Savudrija peninsula to the most prominent point of the Savudrija promontory. (Map 46 in Volume 2 [of Slovenia's Memorial])

The course of the land boundary is more precisely depicted on Maps 1 to 46, in a scale 1 : 25,000, contained in Volume 2 of the Memorial.291

215.
In its oral submissions at the hearing, Slovenia requested that the Tribunal adjudge and declare that:

1. The course of the land boundary between the Republic of Slovenia and the Republic of Croatia is as follows:

Mura River Sector

(a) From the confluence of the Rivers Krka and Mura (point B1), the land boundary runs westwards in the middle of the Mura River to a point north-east of Gibina. (Maps 1 (as corrected in Slovenia's Counter-Memorial), 2 and 3 in Volume 2 of Slovenia's Memorial)

Central Sector

Slovenske gorice

(b) From Gibina to the Presika Stream, the land boundary follows the eastern and southern boundaries of Slovenia's municipalities reflected in the records of the cadastral municipalities of Gibina, Šafarsko, Razkrižje, Veščica and Globoka, and encompassing 10 houses south of Razkrižje. It then follows the former State boundary between Austria and Hungary, reflected in the boundaries of Slovenia's municipalities, up to the point where it meets the Drava River to the south-east of Središče ob Dravi. (Maps 4, 5 and 6 in Volume 2 of Slovenia's Memorial)

Drava River

(c) The land boundary then follows the middle of the Drava River from the point southeast of Središče ob Dravi, through the Ormož Lake (Ormoško jezero) to the point north-east of Zavrč where it reaches the municipality of Zavrč. (Maps 6, 7 and 8 in Volume 2 of Slovenia's Memorial)

Haloze-Macelj

(d) From the Drava River to the Sotla River, the boundary follows the former State boundary between Austria and Hungary, reflected in the boundaries of Slovenian municipalities and Slovenia's cadastral records. (Maps 8, 9, 10 (as corrected in Slovenia's Reply) and 11 in Volume 2 of Slovenia's Memorial)

Sotla River

(e) From the Haloze-Macelj area, the land boundary follows the middle of the Sotla River, passing through Lake Vonarsko (Vonarsko jezero), until it reaches the outfall of the Sotla River into the Sava River. (Maps 11, 12, 13, 14, 15, 16, 17 and 18 in Volume 2 of Slovenia's Memorial)

Sava and Bregana Rivers

(f) From the mouth of the Sotla River, the land boundary follows the middle of the Sava River up to the mouth of the Bregana River. It then continues in the middle of the Bregana River up to the foot of Gorjanci - Žumberačka gora in the vicinity of the settlement of Gabrovica. (Maps 18 and 19 in Volume 2 of Slovenia's Memorial)

Gorjanci / Žumberak

(g) The land boundary then follows the southern and eastern boundaries of Slovenia's municipalities, including the military facility and the trigonometric point on Trdinov vrh, the settlement of Drage and the entire settlement of Brezovica pri Metliki, until it reaches the Kamenica River, to the east of the settlement with the same name. (Maps 19, 20, 21, 22 and 23 in Volume 2 of Slovenia's Memorial)

Kamenica, Kolpa and Čabranka Rivers

(h) The land boundary continues to run in the middle of the Kamenica River to its outfall into the Kolpa River. From there, it follows the middle of the Kolpa River to the confluence of the Rivers Kolpa and Čabranka, continuing upstream on the latter and on its tributary until the river leaves the land boundary south of Novi Kot. (Maps 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 in Volume 2 of Slovenia's Memorial and map 35 as corrected in Slovenia's Reply)

Kras

(i) The land boundary then continues to follow the boundaries of Slovenia's municipalities as reflected in Slovenia's cadastral records until it reaches the Bay of Piran. (Maps 35, 36, 37, 38, 39, 40, 41, 42, 43 (as corrected in Slovenia's Reply), 44 and 45 in Volume 2 of Slovenia's Memorial)

Istria Sector

(j) The land boundary then continues to follow the boundaries of Slovenia's municipalities as reflected in Slovenia's cadastral records until it reaches the Bay of Piran. (Maps 35, 36, 37, 38, 39, 40, 41, 42, 43 (as corrected in Slovenia's Reply), 44 and 45 in Volume 2 of Slovenia's Memorial)

Bay of Piran

(k) Along the Bay of Piran, the boundary follows the coast of the Savudrija peninsula to the most prominent point of the Savudrija promontory. (Map 46 in Volume 2 of Slovenia's Memorial)

The course of the land boundary is more precisely depicted on Maps 1 to 46, in a scale 1 : 25,000, contained in Volume 2 of Slovenia's Memorial of 11 February 2013 as corrected in Counter-Memorial and Reply.

2. The Maritime Issues

216.
In respect of the maritime delimitation, Slovenia requested in its Memorial and Counter-Memorial that the Tribunal adjudge and declare that:

2. The Bay of Piran has the status of Slovenian internal waters and is closed by a straight baseline connecting the most prominent points on the coasts of the Madona and Savudrija promontories.

3. The course of the maritime boundary between the Republic of Slovenia and the Republic of Croatia is constituted by a series of geodetic lines connecting the following points, as illustrated on Figure 11.1 [of Slovenia's Memorial]:

(a) Starting at Point P1, which is situated on the low-water line at the point where the closing line across the Bay of Piran meets the coast at the Savudrija Promontory, the maritime boundary proceeds to Point P2, which is the easternmost point of Slovenia's junction to the High Sea;

(b) From Point P2, the maritime boundary proceeds in a south-westerly direction, at a distance of three nautical miles from the Treaty of Osimo line, until it reaches Point P3, which is located 12 nautical miles from Croatia's coast;

(c) From Point P3, the maritime boundary follows a line running parallel to, and at a constant distance of three nautical miles from, the 1968 continental shelf boundary between the former Yugoslavia and Italy, until it intersects the 45°10'N parallel of latitude at Point P4.

4. Slovenia's junction to the High Sea is a geodetic line connecting Point P2, which lies along the southern limits of Slovenia's territorial sea, with Point T4 bis, which is the point where the southern limits of Slovenia's territorial sea intersects the 1975 Treaty of Osimo boundary line agreed between the former Yugoslavia and Italy.

5. The regime for the use of the relevant maritime areas comprises the following:

(a) With the exception of the area described in paragraph (b) below, the areas lying within 12 nautical miles of the Parties' respective baselines and delimited in accordance with paragraph 3 above constitute the territorial seas of Slovenia and Croatia, respectively. Slovenian fishermen will continue to enjoy their historical fishing rights in Croatia's territorial waters, which are also guaranteed by the Accession Treaty between Croatia and the European Union and by the 1997 Agreement on Border Traffic and Cooperation between the Parties;

(b) The maritime area lying within the corridor circumscribed by the lines connecting Points P2 and T4 bis in the north, the Treaty of Osimo line in the west, and the line connecting Points P2 and P3 in the east constitutes high seas within which Slovenia possesses sovereign rights over the continental shelf (sea bed and sub-soil);

(c) The areas lying south of Slovenia's junction to the High Sea and beyond the limits of Croatia's territorial sea are high seas and shall remain so as between the Parties up to the point where the interests of third States are affected.292

217.
In its oral submissions at the hearing, Slovenia requested that the Tribunal adjudge and declare that:

2. The Bay of Piran has the status of Slovenian internal waters and is closed by a straight baseline connecting the most prominent points on the coasts of the Madona and Savudrija promontories.

3. The course of the maritime boundary between the Republic of Slovenia and the Republic of Croatia is constituted by a series of geodetic lines connecting the following points, as illustrated on Figure 11.1 of Slovenia's Memorial:

(a) Starting at Point P1, which is situated on the low-water line at the point where the closing line across the Bay of Piran meets the coast at the Savudrija Promontory, the maritime boundary proceeds to Point P2, which is the easternmost point of Slovenia's junction to the High Sea;

(b) From Point P2, the maritime boundary proceeds in a south-westerly direction, at a distance of three nautical miles from the Treaty of Osimo line, until it reaches Point P3, which is located 12 nautical miles from Croatia's coast;

(c) From Point P3, the maritime boundary follows a line running parallel to, and at a constant distance of three nautical miles from, the 1968 continental shelf boundary between the former Yugoslavia and Italy, until it intersects the 45°10' N parallel of latitude at Point P4.

4. Slovenia's junction to the High Sea is a geodetic line connecting Point P2, which lies along the southern limits of Slovenia's territorial sea, with Point T4 bis, which is the point where the southern limits of Slovenia's territorial sea intersects the 1975 Treaty of Osimo boundary line agreed between the former Yugoslavia and Italy.

5. The regime for the use of the relevant maritime areas comprises the following:

(a) With the exception of the area described in paragraph (b) below, the areas lying within 12 nautical miles of the Parties' respective baselines and delimited in accordance with paragraph 3 above constitute the territorial seas of Slovenia and Croatia, respectively. Slovenian fishermen will continue to enjoy their historical fishing rights in Croatia's territorial waters, which are also guaranteed by the Accession Treaty between Croatia and the European Union and by the 1997 Agreement on Border Traffic and Cooperation between the Parties;

(b) The maritime area lying within the corridor circumscribed by the lines connecting Points P2 and T4 bis in the north, the Treaty of Osimo line in the west, and the line connecting Points P2 and P3 in the east constitutes high seas within which Slovenia possesses sovereign rights over the continental shelf (sea bed and sub-soil);

(c) The areas lying south of Slovenia's junction to the High Sea and beyond the limits of Croatia's territorial sea are high seas and shall remain so as between the Parties up to the point where the interests of third States are affected.

3. Objection to the Tribunal's Jurisdiction

218.
In its Counter-Memorial and its oral submissions at the hearing, Slovenia further requested the Tribunal "to declare that 'Point 2 of the Submissions made by the Republic of Croatia is not within the task of the Arbitral Tribunal set out in the Arbitration Agreement'."293

IV. DETERMINATIONS IN RESPECT OF THE LAND BOUNDARY

219.
The Tribunal first considers the course of the land boundary between Croatia and Slovenia. In this regard, the Tribunal will address its function under the Arbitration Agreement before addressing the disputed segments of the land boundary.

A. THE TASK OF THE TRIBUNAL AND THE APPLICABLE LAW

1. The Parties' Positions

(a) Task of the Tribunal

220.
Pursuant to Article 3(1) of the Arbitration Agreement, the Tribunal's task consists of the determination of the course of the maritime and land boundary between Croatia and Slovenia, Slovenia's junction to the High Sea, and the regime for the use of the relevant maritime areas.
221.
In addition, Article 3(2) of the Arbitration Agreement provides:

The Parties shall specify the details of the subject-matter of the dispute within one month. If they fail to do so, the Arbitral Tribunal shall use the submissions of the Parties for the determination of the exact scope of the maritime and territorial disputes and claims between the Parties.294

222.
The Parties did not specify the details of the subject-matter of the dispute within one month. Following consultation with the Parties at the First Procedural Meeting, the Tribunal therefore noted in its Procedural Order No. 1:

The Arbitral Tribunal takes note of the Parties' joint view that, pursuant to Article 3(2) of the Agreement, it shall fall to the Arbitral Tribunal to determine the exact scope of the maritime and territorial disputes and claims between the Parties, taking into consideration the entirety of the Parties' written and oral submissions.295

223.
As has become apparent from the Parties' written and oral submissions, the Parties' perception of the Tribunal's task in relation to the land boundary differs to a certain extent. The Parties' approaches are described in the following paragraphs.

i. Croatia's Position

224.
Croatia emphasises that the Parties agree that their respective internal legislation, even if it did not as such delimit the boundary, "constitutes valuable evidence of their respective understanding and interpretation of the existing boundary" as of the critical date.296 Croatia states that the Parties further agree that in order to interpret such legislation, "the cadastral records of both republics are of valuable help" and that "the legislation on territorial organization together with the cadastral records evidences the 'view of all the competent authorities of the administration' concerning the legal title delimiting their respective boundaries."297 Thus "in both Croatia and Slovenia, at the critical date, internal legislation defined the republican territory in terms of specific municipalities whose precise geographical contours and limits were set forth in cadastral records and maps."298 By virtue of such legislation, "the republican territory in each of the two republics consisted of the aggregate of its municipalities" and such municipalities "themselves included one or more cadastral districts, the geographic limits of which were specifically defined and mapped."299 For this reason, Croatia considers the work of the parties between 1992 and 1997 on the comparison and reconciliation of their respective cadastral district boundaries to be of great relevance to the task of the Tribunal.300
225.
According to Croatia, "[i]t should not be difficult" for the Tribunal to determine the parts of the land boundary that are disputed.301 Croatia points to the 1996 Report of the Expert Group as a jointly-prepared document pre-dating the Arbitration Agreement, and identifying the parts of the boundary that are disputed.302 Relying mainly on the 1996 Report, Croatia considers that the subject-matter of the dispute with regard to the land boundary corresponds to the areas where, according to the 1996 Report, the boundaries claimed by the Parties overlap and are separated by more than 50 m.303
226.
In the 1996 Report, the Expert Group identified twenty such areas, extending over approximately 60 km of the land boundary. In its Memorial, "to avoid overburdening the Arbitral Tribunal,"304 Croatia addresses eight such areas, accounting for more than 47 km of the border, and 733.9 of the 797.9 ha (92%) of the disputed territory.305 It addresses the twelve remaining areas in its Counter-Memorial.306
227.
Croatia notes that "a full and final delimitation of the entire border"307 would also require a delimitation in a further twelve areas, where the boundaries claimed by the Parties overlap and are separated by less than 50 m (as well as the few areas not included in a cadastral district of either State308). Croatia suggests in its Memorial that such "minor discrepancies" be left to the Parties to resolve after the Tribunal has determined the remainder of the boundary.309 This proposition is based on the "impracticality of imposing on the Tribunal the burden of delimiting every disputed square met[re]" and the likelihood of eventual agreement on minor discrepancies once the vast majority of the border is delimited.310
228.
Croatia proposes that the Tribunal "delimit the land boundary in the same way the parties set out to do in 1992, that is by alignment of their respective cadastral district boundaries, and by reconciliation of the discrepancies that exist along the 9% of the boundary that the Parties' experts found not to be aligned."311 Croatia contends that in most of the cases where there are discrepancies, such reconciliation would involve no more than technical adjustments, based on modern geodetic analysis. In other cases, "it would be a matter of comparing the parties' respective cadastral boundaries with the historic source of title... and then determining which party's cadastral boundary is more faithful to the proper historic source of title."312
229.
Croatia states that, shortly after independence, the Parties "set out to confirm precisely where the [land boundary] was agreed and where it was disputed."313 It emphasises that Slovenia "acknowledges" that the definition of cadastral boundaries was to be considered "the point of departure" for the delimitation of the land boundary.314 Further, Slovenia "accepts" that the Expert Group aimed at identifying the disputed parts of the land boundary on the basis of cadastral boundaries, and that they did so.315 Croatia finds support in the Minutes from a 15 March 1993 meeting of the Parties' Expert Groups316 and the Joint Statement of the Parties' Expert Groups following their meeting on 7 May 1993.317
230.
Croatia notes that these efforts culminated in the 1996 Report.318 Croatia asserts that Slovenia "accepts" that this report "identified the disputed parts of the boundary."319 The 1996 Report identified 32 discrepancies, and Croatia notes that Slovenia refers to a joint statement by the two Foreign Ministers mentioning "32 unresolved situations".320
231.
Croatia contends that the work of the Expert Group after the completion of their report confirms that the only disputed areas are the areas where the cadastral boundaries are not aligned.321 Croatia notes that, between 1996 and 1998, the Expert Group conducted "a series of site visits to certain of the disputed areas" with the aim of determining the actual border.322 According to Croatia, that work came to an end in 1998 because Slovenia "unilaterally refused to allow its experts to participate in any further field work."323
232.
Finally, Croatia notes that Slovenia agrees that, at a ministerial-level meeting of the two States on 30 November 1998, "[t]he Ministers agreed that 91.1% of the land boundary was coordinated."324 As a result, Croatia concludes, "[i]t was only the uncoordinated remainder that required resolution. And it is only that part of the boundary that requires resolution in these proceedings."325
233.
In response to Slovenia's attempt to discount the significance of the 1996 Report, Croatia seeks to demonstrate that Slovenia's own annexes confirm that the Parties compared their cadastral district boundaries in order to identify the parts of the boundary that were agreed and the parts that were disputed.326
234.
Croatia asserts that the minutes of a meeting of the Parties that occurred in March 1997 and where the 1996 Report was formally adopted confirm that the 1996 Report determined the agreed and the disputed parts of the boundary.327 Croatia points to the following language:

The border line between the Republic of Slovenia and the Republic of Croatia has been agreed in borders of up to 50 metres and in the length of 610 kilometres, and not yet agreed in the length of 60 kilometres. The surface area of the disputed territory amounts to 828 hectares, 804 hectares of which is land with dual records, and 24 hectares without records.328

235.
In response to Slovenia's suggestion that the 1996 Report was not based on a comparison of all cadastral districts along the border, Croatia explains that the Parties completed their comparison of the border in 1994 and presented their results in a report dated 2 June 1994, on which the Expert Group subsequently relied.329
236.
Croatia faults Slovenia for conflating the process of comparing cadastral district boundaries to determine the agreed and disputed parts of the boundary with subsequent efforts to negotiate a resolution of the Parties' boundary disputes.330 Croatia asserts that the course of the cadastral district boundaries was the only relevant criterion in the former process, but only one of multiple criteria in the latter process.331 Thus, according to Croatia, the reference to the "future state border" in the minutes referred to earlier concerns a possible future boundary resulting from a negotiated settlement.332 Croatia suggests that further attempts at a global negotiated settlement implied the possibility of modifying parts of the undisputed boundary.333 Croatia states:

Proposing a territorial exchange indicates only that a State is willing to give up something that it already has to obtain something that it wants from the other State. It is not an admission by the first State that it does not already possess the territory it seeks to exchange. On the contrary.334

237.
In any event, Croatia emphasises that these attempts at a negotiated settlement did not produce an agreement and that these negotiations did not change the reality as at the critical date.335
238.
Addressing Slovenia's contention that the subject-matter of the present arbitration is the delimitation of the entire land border, Croatia states in its Counter-Memorial that a full and final delimitation of the entire land border will also require a delimitation of all the areas where the Parties' cadastral district boundaries are separated by less than 50 m.336 Accordingly, should the Tribunal be minded to do so, Croatia submits in Volume III of its Counter-Memorial a series of 45 maps depicting its representation of the course of the entire land boundary between the Parties.337 Croatia submits:

Under Article 3(1)(a) of the Arbitration Agreement, the land boundary between the Republic of Croatia and the Republic of Slovenia follows the line depicted in the series of maps comprising Volume III of this Reply.338

Finally, at the hearing, Croatia noted that the task of the Tribunal is to "delimit the entire land boundary across all three regions, from the tri-point with Hungary in the east to the land boundary terminus at the mouth of the Dragonja River in the west."339

ii. Slovenia's Position

239.
Slovenia considers that the subject-matter of the dispute with regard to the land boundary is the entire land border, and its submissions accordingly contain a description of the course of the entire land boundary.340 Slovenia characterizes Croatia's approach to the task of the Tribunal in respect of the land boundary as "unduly restrictive".341
240.
Slovenia recalls that the Arbitration Agreement states that the Tribunal shall determine "the course of the land boundary between the Republic of Slovenia and the Republic of Croatia."342 It asserts that the Parties' dispute in relation to the land boundary cannot be "reduced to... a comparison of cadastral maps."343 Quoting language used by Croatia, Slovenia avers that the Tribunal must make "a full and final delimitation of the entire land boundary."344 The Arbitration Agreement, Slovenia points out, provides that the Tribunal's Award "shall be binding on the Parties and shall constitute a definitive settlement of the dispute."345
241.
Slovenia specifically notes that the Tribunal must determine the land boundary even in areas not included in the cadastral districts of either Party.346 The Tribunal "could not simply leave some parts of the land boundary in limbo."347 Slovenia refers to the Parties' extensive negotiations and their ultimate failure.348 It submits that it is "wishful thinking" to assume an eventual hypothetical agreement concerning "minor discrepancies".349
242.
Slovenia explains that the Tribunal is not asked to determine "every metre of the land boundary": the Tribunal must delimit the land boundary and not demarcate it.350 A "limited margin of appreciation" will be left for "the implementation of the Award through the demarcation process."351
243.
Slovenia also notes that the Arbitration Agreement provides that "[t]he Arbitration Tribunal may at any stage of the procedure with the consent of both Parties assist them in reaching a friendly settlement."352 It contends that such settlement would have to be reached "within the arbitral process" and with the assistance of the Tribunal, and would have to be part of the Tribunal's Award.353 According to Slovenia, in the absence of agreement on the course of the land boundary, the Tribunal not only has the power but also the duty to resolve the dispute.354 In this regard, Slovenia refers to a statement by the ICJ to the effect that "[t]he Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent."355
244.
Discussing Croatia's evidence for its land boundary claim, Slovenia submits that Croatia "places excessive weight" on the 1996 Report.356 Slovenia contends that the 1996 Report does not establish any "agreed boundary" and cannot be used to determine the scope of the land boundary dispute.357
245.
First, Slovenia asserts that the Expert Group did not examine the entire length of the land boundary.358 Rather, the task of the Expert Group was "determined with precision"359 in the Instructions for Work of the Expert Group adopted by the Mixed Slovenian-Croatian Commission:

A collation [comparison] of official valid cadastral plans and other documentation from both sides is conducted in office for that area for which the Joint Group of Geodetic Experts established in its minutes that it is "unaligned", i.e. that there are "greater discrepancies."360 [emphasis added]

246.
Slovenia thus argues that the Expert Group's mission was limited to a re-examination of the "greater discrepancies" identified in 1993/1994 by the Parties' Expert Groups.361 Slovenia asserts that this is confirmed by the 1996 Report itself.362
247.
Slovenia notes that the members of the Parties' Expert Groups compared 244 sheets of topographic maps at a scale of 1:5,000.363 Despite this effort, the 1994 Report "does not contain a full comparison of the limits of the cadastral municipalities (cadastral maps are at a scale of 1:2,880)" and provides a "limited amount of information... concerning the documents actually used."364
248.
Slovenia claims that, in 1994, Croatia had in several instances presented only "outdated data", despite the existence of more recent cadastral records showing different cadastral limits.365 Thus, the "inaccuracies" in the findings of the Parties' Expert Groups, as recorded in the 1994 Report, "give rise to considerable doubts" concerning the totality of their work.366 These doubts remain until today as the Expert Group did not re-examine the areas where the cadastral boundaries were considered aligned in the 1994 Report.367
249.
Second, Slovenia contends that the 1996 Report was not intended to establish a boundary.368 Slovenia calls the comparison of cadastral records a "technical step, often carried out in the office and not on the spot, for the delimitation and demarcation of the boundary."369 Slovenia argues that the Parties' Expert Groups confirmed this understanding.370 Slovenia adds that both exercises "at best" could establish "a match" of the limits of cadastral municipalities but could not establish "the accuracy" of the cadastral boundary in relation to the land boundary.371
250.
Third, Slovenia submits that the Mixed Diplomatic Commission's work shows that the comparison of cadastral records was not the determinative criterion for the delimitation of the land boundary.372 According to Slovenia, this is confirmed by the practice of the Expert Group itself, as it decided to re-examine the Prezid/Draga discrepancy in a field survey in July 1997.373 Thus, Slovenia asserts:

An existing discrepancy of the cadastral records does not mean that there is a dispute concerning the course of the State boundary, just as a perfect match of the cadastral limits cannot always be considered to constitute an 'agreement' on the State boundary.374

251.
Slovenia asserts that the 45 maps newly submitted in Volume III of Croatia's Counter-Memorial represent an important change of Croatia's position concerning the extent of the dispute and the task of the Tribunal.375 Slovenia notes that Croatia's maps do not distinguish between the 20 "discrepancies" exceeding 50 m, the 12 "discrepancies" of up to 50 m, and the rest of the boundary, and that Croatia asks the Tribunal to adjudge and declare that "the land boundary between the Republic of Croatia and the Republic of Slovenia follows the line depicted in the series of maps comprising Volume III of this [Counter-Memorial]."376
252.
Slovenia states:

Croatia cannot have it both ways: it cannot, on the one hand, absolve the Tribunal from its task of determining the entire land boundary, by only requesting it to decide upon some "cadastral discrepancies" Croatia deems most important and, on the other hand, request the Tribunal to adjudge and declare the course of the entire land boundary as depicted in the 45 maps in Volume III of its Counter-Memorial.377

253.
Slovenia welcomes Croatia's oral submission that the Tribunal's task includes delimiting the entire land boundary, but submits that Croatia's proposed approach is "untenable" in that the Tribunal cannot be required to delimit the entire land boundary and leave some issues of delimitation to the Parties.378
254.
Slovenia claims that the lack of conformity between Croatia's claimed land boundary and the cadastre further confirms that the 1996 Report did not incorporate a comparison and even less an agreement on the entire cadastral boundaries between Slovenia and Croatia, and that it was neither final nor intended to determine an agreed State boundary.379
255.
Finally, Slovenia objects to the jurisdiction of the Tribunal in one respect: It argues that point 2 of Croatia's formal Submissions referring to Sveta Gera and Sveti Martin na Muri is "outside the Tribunal's task" and that the Tribunal lacks jurisdiction to address it.380

(b)Applicable Law

i. Uti possidetis

256.
The Parties agree that the principle of uti possidetis— a well-established principle of international law—governs the determination of their land boundary. The Parties also agree on the fundamental aspects of its application.381Uti possidetis governs the transformation of administrative borders into international boundaries following the dissolution of a State. While the principle was established in the context of decolonization in Latin America in the 19th century382 and was later applied to decolonization in Africa and Asia in the 20th century,383 its scope of application is broader. As a Chamber of the ICJ noted, the "application of the principle of uti possidetis result[s] in administrative boundaries being transformed into international frontiers in the full sense of the term."384 The Chamber underlined that the principle is "a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs."385 Its effect is to "freez[e] the territorial title"386 and to give "pre-eminence" to "legal title over effective possession as a basis of sovereignty."387
257.
In respect of the former republics of the SFRY, the Badinter Commission found the uti possidetis principle to be applicable to the determination of the boundaries between the successor States to the SFRY.388 In its answer to the question: "Can the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia be regarded as frontiers in terms of public international law?,"389 it stated: "Except where otherwise agreed, the former boundaries become frontiers protected by international law."390
258.
Similarly, both Croatia and Slovenia have endorsed the application of the uti possidetis principle to the determination of their borders.391 As regards Croatia, the Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia provided:

The state borders of the Republic of Croatia are the internationally recognized state borders of the former SFRY in the part where they relate to the Republic of Croatia and the borders between the Republic of Croatia and the Republic of Slovenia, Bosnia and Herzegovina, Serbia and Montenegro within the hitherto SFRY.392

259.
The Parliament of the Republic of Croatia's Declaration on the Proclamation of the Sovereign and Independent Republic of Croatia provided that "[b]y the Constitutional Decision the present borders of the Republic of Croatia have become State borders with other republics and with the countries adjoining the former Socialist Federal Republic of Yugoslavia."393
260.
As regards Slovenia, the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia provided that "the frontier with the Republic of Croatia is the frontier within the hitherto SFRY."394 Slovenia's Constitutional Court stated that "[i]n terms of international law, at the moment of the creation of the independent and sovereign Slovenia, its former republican border with Croatia 'in the framework of the former SFRY' became its State border, on the basis of the uti possidetis principle"395 and that the uti possidetis principle is "a generally recognized principle of international law and is, as such, also binding on Slovenia."396
261.
The uti possidetis principle applies as of the date of independence.397 The Parties are in agreement that the relevant date is 25 June 1991, when both Parties declared independence.398
262.
There is also agreement between the Parties that, pursuant to the uti possidetis principle, evidence of title includes "all formal acts adopted in the pre-independence era."399Effectivités can "support and detail" title but cannot serve as a substitute for it.400 A "wide range of acts"401—legislative, executive or judicial—may qualify as effectivités and "[l]egislation is accorded special weight."402
263.
In addition, Slovenia places particular emphasis on "the view of all the competent authorities of the... administration" [a reference to the Frontier Dispute (Burkina Faso/Mali) judgment of the ICJ] in appreciating legal title and administrative boundaries.403

ii. Domestic Law Governing the Boundaries of the Former Republics on the Critical Date

Federal Rules of the FPRY and the SFRY

264.
The Constitution of the Federal People's Republic of Yugoslavia was adopted in 1946 by the People's Assembly of the FPRY and established a federal State. Article 2 stated: "The Federal People's Republic of Yugoslavia consists of: the People's Republic of Serbia, the People's Republic of Croatia, the People's Republic of Slovenia, the People's Republic of Bosnia and Herzegovina, the People's Republic of Macedonia and the People's Republic of Montenegro."404
265.
While Article 12(1) of the 1946 Constitution provided that "delimitation of territories of people's republics" was within the competence of the People's Assembly of FPRY, Article 12(2) provided that the "[b]orders of a people's republic cannot be altered without its consent."405
266.
In 1953, Yugoslavia adopted the Constitutional Law on the Social and Political Organization of the Federal People's Republic of Yugoslavia.406 Article 15 provided that the federation had within its exclusive competences the "approval of changes of borders between people's republics which they propose jointly, and the resolution of disputes over their delimitation."407
267.
In 1963, a new federal Constitution was adopted for Yugoslavia under its new name, Socialist Federal Republic of Yugoslavia.408 Its Article 109 provided that "[t]he territory of the republic cannot be changed without the consent of the republic" and that the "[b]orders between republics can change only on the basis of a decision adopted in agreement by the republican assemblies."409
268.
A third federal Constitution was adopted in 1974.410 It remained in effect until the independence of Croatia and Slovenia in 1991.411 It provided that "[t]he territory of a republic cannot be altered without the consent of that republic" and that "[t]he border between the republics can be altered only on the basis of their agreement."412

Applicable Rules in Croatia

269.
As is common ground between the Parties, Croatia's constitutions and constitutional acts, all adopted within the federal framework of Yugoslavia, did not themselves define the boundaries of Croatia. The People's Republic of Croatia promulgated its first Constitution in 1947.413 Articles 13 and 46(3) provided that the boundaries of Croatia could not be altered without its consent.414 Article 21(6) of the 1953 Constitutional Act on the Foundations of the Social and Political System and of the Republic Authorities confirmed the competence of the Croatian Parliament on issues relating to the modification of the boundaries of Croatia (subject to the approval of the Federal People's Assembly).415 Article 5 of the 1963 Croatian Constitution provided: "The borders of the Republic may only be changed on the basis of a decision made by the Parliament of the Socialist Republic of Croatia and in accordance with the expressed will of the population affected by the change."416 Article 4 of the 1974 Croatian Constitution was virtually identical to Article 5 of the 1963 Constitution.417 Article 8 of the 1990 Croatian Constitution provided that "[t]he borders of the Republic of Croatia may only be changed by a decision of the Croatian Parliament. "418
270.
The 1947 Croatian Constitution provided: "The People's Republic of Croatia includes the territory of the present province of Dalmatia and the present districts of Osijek, Slavonski Brod, Daruvar, Bjelovar, Varaždin, Zagreb, Sisak, Karlovac, Sušak and Gospic, and the area of the City of Zagreb."419 In 1947, Croatia also enacted the Law on Administrative and Territorial Subdivision of the People's Republic of Croatia, dividing Croatian territory into administrative units.420
271.
The 1974 Croatian Constitution provided that "the territory of the Socialist Republic of Croatia consists of the areas of municipalities stipulated by law."421 The 1962 Law on Areas of Municipalities and Districts provided that "[t]he areas of the municipalities and districts, their names and the seats of the people's committees shall be determined by law" and that "[t]he borders of municipalities shall be determined in the statutes of the municipalities."422 The 1962 Law also listed the districts constituting Croatia, in addition to the municipalities and associated settlements located in those districts.423
272.
The statutes of Croatia's municipalities enumerated the settlements located within them. Under Croatia's 1974 Law on Geodetic Land Survey and Cadastre, each settlement generally had a corresponding cadastral district, i.e. a territorial unit used for the land registration.424 Article 36 of the 1974 Law provided that the "[c]adastral district is the basic territorial unit for which land cadastre is set up" and "[a]s a rule it includes one settlement with adjacent land."425