Slovenia: High seas sacred, yet too distant under international law

Posted by Davor Vidas, Fridtjof Nansen Institute on October 2nd, 2009
Organization: The Fridtjof Nansen Institute
In reaction to the EurActiv article:

Slovenia lifts veto on Croatia's EU talks

Sir,

Regarding ‘Slovenia lifts veto on Croatia’s EU talks‘:

In its protracted border dispute with Croatia, Slovenia has claimed the right of a direct territorial “contact with” or “exit to” the high seas. In fact, however, and regardless of the terminology used, such territorial connection of Slovenia with the high seas would either be a direct violation of international law or would require Croatia to renounce a part of its territorial sea.
Nonetheless, Slovenian PM Borut Pahor recently stated that the exit to the high seas “was and remains” a “sacred thing” for Slovenia.

Slovenia indeed has a right of access to the high seas, but not territorial access, which is in fact its main goal in the dispute with Croatia.

Through its claim for a territorial connection with the high seas, Slovenia has actually re-opened one of the key agreed rules of the Law of the Sea shaped over the centuries: the rule that the territorial sea is not to exceed 12 nautical miles.

The 12-mile rule was adopted due to the interests of great naval powers, including the United States and the former Soviet Union, and a consensus achieved at the Third United Nations Conference on the Law of the Sea, 1973-82. Today that rule is enshrined in the UN Law of the Sea Convention, to which all the EU member states, including Slovenia, are parties.
Central to an evaluation of the legal validity of Slovenia’s claim to a territorial contact, or “exit”, to the high seas are two geographical points. First, the position of ‘point 5′ as agreed under the 1975 Osimo Treaty. And second, any point of Slovenia’s territorial sea baseline obtained by the solution of its boundary dispute with Croatia in the Bay of Piran/Savudrija.

In any conceivable future solution of the maritime boundary related to the Bay – even if, hypothetically, the entire waters of the Bay should come under Slovenia’s sovereignty – the distance between those key points would nonetheless remain in excess of 12 nautical miles.

Slovenia thus cannot be territorially connected to the high sea (i.e., ‘point 5′ of the Osimo Treaty) without violating international law and commitments to which it has agreed. The only other way would be if Croatia should reliquish its territorial sea area situated north of point 5. Yet even that would not be legally valid if granted by Croatia directly to Slovenia, thereby again exceeding the 12-mile limit of its territorial sea – but only if it were granted to the international community at large. Basically, that would mean requiring Croatia to transform part of its territorial sea into the high seas, thereby resulting in Croatia losing that part of its national maritime area.

A Croatian-Slovenian condominium in that same part of the sea would also require that Croatia renounce its territorial sea rights under international law, while Slovenia would at the same time acquire rights for which there would otherwise be no basis in international law.

True, Croatia and Slovenia still need to solve their maritime boundary dispute originating in the Bay of Piran/Savudrija. However, no causal relationship exists between this unresolved issue and Slovenian access to the high seas.

The key purpose – “direct” access of Slovenia’s ships to the high seas – would not be achieved by ‘transforming’ Croatia’s territorial sea into the high seas nor by a condominium. Neither would a “corridor” to the high seas make any difference. This is so because only the incoming direction for ships to Slovenia’s international port is through Croatia’s territorial sea.

The “exit”, or the departure direction for ships from Slovenia’s port to the high seas, leads through the territorial sea of Italy, not Croatia. That is in accordance with a traffic separation scheme for all ships in the north Adriatic, adopted by the International Maritime Organisation in 2004 following a joint proposal by Croatia, Italy – and Slovenia.

Hence, any further regulation of Slovenia’s access to the high seas should be discussed among three states – Italy, Croatia and Slovenia – and not only the latter two. Once maritime delimitation between Slovenia and Croatia is treated as a separate issue, the protracted Croatian-Slovenian dispute will not longer be a legal-political ‘Rubik’s Cube’, but a delimitation issue open for resolution in a meaningful and expedient way.

Dr. Davor Vidas

Director, Marine Affairs and Law of the Sea Programme

Senior Research Fellow

The Fridtjof Nansen Institute

Norway

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