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Judicial activism is a highly controversial term that has given rise to varied debates and discussions. While it remains elusive in legal scholarship on international adjudication, judicial activism features within analyses as anathema to the judicial function, sometimes as a reaction to a particularly unwelcome decision or when the decision may have crossed some alleged boundary or another. It is frequently presented to pinpoint some faulty component of the judicial interpretation with a focus on the end-result of the decision. As literature focuses primarily on a descriptive analysis of the use of activism, the effect of its use on the judicial function itself has been omitted from most discussions. This article seeks to examine how judicial activism, and its contrasting concept of judicial restraint, have allowed international courts and tribunals to shape and evolve their roles as members of an international judicial institution. This is done through an examination of the most innate powers that have been accorded to the international judiciary, namely inherent powers, and more specifically, through the principle of compétence de la compétence. With an emphasis on the public function that the courts seek to fulfil, this article looks towards examining how activism and restraint have been cardinal in the evolution of what is the international judicial function. [ABSTRACT FROM AUTHOR]

1. Raspad Jugoslavije. 2. Izbijanje spora o granicama između Hrvatske i Slovenije. 3. Sporazum o arbitraži od 4. studenoga 2009. 4. Tijek postupka i jednostrano odustajanje Hrvatske od arbitraže. 5. Konačna presuda izrečena 29. lipnja 2017. godine: Kopnena granica; Piranski zaljev / Savudrijska vala; Pojam ‘’vitalnih interesa’’; Razgraničenje teritorijalnoga mora izvan Piranskoga zaljeva; Pitanje “veze Slovenije s otvorenim morem” (“junction”); Ostale odluke i zaključci Tribunala. 6. Kratak zaključak.

The territorial dispute between the two States emerged on 7 April 1993, when Slovenian Parliament adopted the "Memorandum on the Bay of Piran". By this act, Slovenia claimed the right to all the waters of this small Bay as its internal waters, as well as its exit to the "high seas" at the expense of the parts of Croatian territorial sea. Later on, by enacting a Law in 2005, it alleged to possess the continental shelf, and proclaimed over it a protected ecological zone with fishing rights. Croatia repudiated all these claims as being opposite to the provisions of the 1982 UN Convention on the Law of the Sea, to which both States are parties. All these rules belong to the general customary international law too. Besides that, these claims and allegations go against the principle that "the Land dominates the Sea" as formulated and applied in the case law of international courts and tribunals on this subject matter. Slovenia abused its position as member of the European Union before Croatia by blocking the procedure of its entry into the EU membership. As condition for changing its negative attitude, it imposed Croatia's acceptance of all its territorial requirements. Further on, it qualified these claims as being in its "vital interests". The solution to this controversy was found in the Arbitration Agreement between the two Governments. It was signed on 4 November 2009 in Stockholm thanks to the facilities offered by the European Commission. The Agreement entered into force on 29 November 2010, and subsequently Slovenia lifted its reservations. During the arbitration procedure that followed, it was revealed that the Agent of Slovenia had unlawful contacts with other members of the Tribunal and its staff through Slovenian member of the Tribunal. However, with the exception of the Slovenian Arbitrator, who soon after this incident resigned, Croatia did not offer any proof of other members of the Tribunal having been compromised by the affair. Nevertheless, this event was the motive for Croatia to abandon the procedure. Since then, it has been considering that all decisions of the Tribunal, as well as its very existence, are nonexistent for it. After its formal excuse, Slovenia insisted on the continuation of the procedure. By its Partial Award of 30 June 2016, the Tribunal found that Slovenia violated the provisions of the Arbitration Agreement, but that the Agreement remained in force and the arbitral procedure should continue. The Tribunal rendered its Final Award on 29 June 2017 in the absence of Croatia. Hence, a new dispute aroused on the validity of the Final Award, but the territorial divergence between the parties is still waiting for a solution. In this paper, the author carefully analysed the subject dispute in all its phases, and especially the text of the Tribunal's Final Award. His assessments can be summarised in a triangle of the relations between Slovenia's claims, Croatia's defence of its rights, and the legal foundation of the Tribunal's verdict. There was some disrespect of rules and standards of international law by all its actors. By its insistence on territorial claims over a long period of time, Slovenia harmed Croatia's legal interests. Either Slovenia's decision makers believed that international law consisted only of the rules that are in favour of its national interests or they simply disregarded this set of legal norms. Consequently, the Final Judgment repudiated almost all of its claims. It did not recognise Slovenia's access to the "high seas" in the Adriatic Sea in the territorial sense at the expense of parts of Croatian territorial sea. It refused Slovenia's claim for the possession of the continental shelf, and it did not recognise Slovenia's rights on all the waters of the Bay of Piran up to Croatia's shore. Finally, the Tribunal confirmed the sovereignty of Croatia over Sveta Gera/Trdinov Vrh, which had been under the sway of Slovenia since its proclamation of independence in 1991. As regards the rest, the Tribunal's tracing of land boundaries and the delimitation of the territorial sea outside the Piran Bay may hardly be contested. Hence, with an important exception of the delimitation of the waters within the Piran Bay, Croatia might be considered the winner of this arbitral procedure. However, the Award only confirmed Croatia's rights it had before the subject dispute emerged on the basis of relevant rules of international law. In this light, it is somewhat unusual that exactly Croatia repudiates this Tribunal and its decisions. By such conduct, it disregards the procedural principle of compétence de la compétence, and underestimates the pacta sunt servanda rule in respect to the existence of the 2009 Arbitration Agreement. Most parts of the Arbitral Award itself belong to the peak of the case law relating to the land and sea delimitations. Unfortunately, the same may not be said for its part concerning the waters inside the Bay of Piran. In order to elude the principle of "equidistance/ special circumstances", which was successfully applied to the territorial sea beyond the subject Bay, the Tribunal made some stunts. It proclaimed the waters within the Bay to be internal waters even after the proclamation of independence of its two coastal States, with a fiction of their assimilation to the land territory. Thereby, it assimilated the Piran Bay to the lakes deprived of the connection with other seas. For the sake of its delimitation, it explicitly equalised the Bay with land territory. No precedent can justify this. On the other hand, it regulated in detail the freedoms of communications in the "Junction Area" outside of the Bay. The Tribunal produced all this in order to avoid applying the said principle of "equidistance/ special circumstances". Instead of respecting Croatia's entitlement proceeding from its coast, it delimited the Piran Bay waters on the basis of effectivités. Thereby, the Tribunal possibly aimed at reaching a balanced solution and justice in favour of Slovenia. However, this solution may not be justified by a few quotations from the judgments in the Gulf of Fonseca case. If the Tribunal had given importance to some special circumstances and allotted to Slovenia a little more waters than to Croatia, it would have been difficult to criticise this Award. [ABSTRACT FROM AUTHOR]

The I.C.J. has dealt so far with three cases in which its jurisdiction was claimed to be based on Article IX of the 1948 Genocide Convention. In all these cases was involved the Federal Republic of Yugoslavia (FRY). It appeared as defendant in cases on applications of Bosnia and Herzegovina and Croatia. Both of them were time consuming and costly for applicants. The case on application of Bosnia-Herzegovina lasted between 20 March 1993 and 26 Febru-ary 2007 when the final Judgment on the merits was delivered. That in which Croatia was applicant lasted between 2 July 1999 and issuing of the Judgment on merits on 26 February 2015. The FRY submitted its application against NATO members on 29 April 1999 during the bombardment of its territory, and the Court issued the Judgment refusing its jurisdiction to entertain this series of cases on 15 December 2004. The result of all these litigations was the ascertainment of the crime of genocide according to the 1948 Convention only in Srebrenica in Bosnia-Herzegovina. In no case the victims of this crime or their heirs got any pecuniary or other satisfaction. In this paper are discussed three important issues. (a) The first issue is referred to the identity of the FRY which during these proceedings changed its appellation and legal position. As a union of States it ended by the proclamation of Montenegro as an independent State on 3 June 2006. Since then Serbia assumed the responsibilities of the former union. The Judgment of the Court of 2004 against the NATO members was in its result and motivation in sharp contradiction with all other rulings of the Court on the same facts. The reasons for the confusing situation in this respect lay in poor functioning of the Legal Adviser of the UN, in contradictory decisions by the Security Council and the General Assembly, but most of all in shifting of legal position of the FRY itself. In a parliamentary Declaration of 27 April 1992 it claimed to keep identity and continuity of the SFRY as the predecessor State on a reduced territory. However, it was admitted into the UN Membership on 1st November 2000 as a new State. Since then it took its Declaration of 1992 as an act of its independence that what is in contradiction with its own text. On this basis it refused any responsibility for international crimes committed before 27 April 1992. The Court itself was unable to find uniform and reasonable answers in all aspects of this confusing situation. (b) However unlike the above decisions, the Court was consistent in all its rulings by which it restricted its own jurisdiction to Article IX of the 1948 Genocide Convention. Hence it refused to deal with allegations of applicants concerning commission of aggression, of crimes against humanity and war crimes, including acts of ethnic cleansing which do not fall within Article II of the Convention. Bosnia-Herzegovina, and latter on Croatia, did not take into account that the I.C.J. is master of its own jurisdiction and that all its decisions on this subject matter are res judicata. They probably believed that the problem was of political nature and that they will be able to persuade the Court to extend its jurisdiction in order to protect the victims of conflicts. This did not happen. (c) After the Court in its Judgment on merits of 2007 on the application of Bosnia-Herzegovina has adopted very restrictive position concerning the proof of genocidal intention as dolus specialis of the crimes of genocide, including here acts of ethnic cleansing, Croatia as the applicant could reconsider its own possibilities in prolongation of these proceedings. It continued the suit and the final result was that the Court in its Judgment of 2015 rejected all Croatia's claims together with demands from the Serbian counter-claim. It would be better to grant all the money spent in this costly case directly to victims of international crimes, be they the acts of genocide or not.

U ovoj raspravi najprije se razmatraju neka opća pitanja međunarodnoga prava vezana za zločin genocida. Njihovo nedovoljno ili nikakvo poznavanje uzrokom je brojnih nesporazuma glede sadržaja i domašaja sudskih odluka o tome najodvratnijem međunarodnom zločinu. Potom se ukratko izlažu odluke Međunarodnoga suda u Haagu u parnicama u kojima je SRJ, Srbija i Crna Gora ili sama Srbija bila stranka u postupku, bilo kao tužena strana ili tužiteljica. Radi se o parnici Bosne i Hercegovine protiv SRJ, potom o onoj u kojoj je SRJ tužila deset država članica NATO-a, te na koncu o parnici Hrvatske protiv SRJ. Nisu na isti način obrađene presude međunarodnih kaznenih tribunala za bivšu Jugoslaviju i za Ruandu koje se odnose na taj zločin. Na koncu se izlaže kratak zaključak iz kojega je razvidno zašto su te parnice, sve temeljene na članku IX. Konvencije o genocidu iz 1948., bile za države tužiteljice dugotrajne, skupe i na koncu neuspješne. Žrtve međunarodnih zločina nisu dobile nikakvu zadovoljštinu.