CYIL vol. 8 (2017)

ERNEST PETRIČ

CYIL 8 ȍ2017Ȏ

The Problem In the long lasting territorial dispute (since 1991) between the Republic of Slovenia and the Republic of Croatia the core problem was whether Slovenia should have, and if so in what way, a direct “territorial contact”, “junction” of its territorial waters (territorial sea) to the “High Seas” (international waters) or just the right of “innocent passage” according to art. 18 of the UNCLOS through Croatian territorial waters. Since the 15 th century the lands now forming the Republic of Slovenia, as a part of the Austrian Empire, and after 1947 (Peace Treaty with Italy) as part of Yugoslavia, had direct “territorial contact” with the high seas. It is important also to remark that in the SFRY (Yugoslavia) its territorial waters (territorial sea) were not delimited between its costal federal entities but were common to all of them, different from the situation on land where the borders between federal entities (“Socialist Republics”) existed at least de jure and were effective delimitations between jurisdictions of their administrative authorities. Since there did not at the time of dissolution of the SFRY (Yugoslavia) exist any established border line delimiting the territorial waters between the federal entities of the former State, territorial waters had to be delimited among the relevant successor States and the border lines on the sea had to be established. Unsurprisingly, disputes concerning the borders on the sea occurred between Slovenia and Croatia and also between Croatia and Bosnia and Herzegovina, and Montenegro and Croatia, respectively. In the case of the state border between Slovenia and Croatia because of the geographic realities of the northern Adriatic Sea the core problem always has been Slovenia’s access to the high seas. Slovenia and its port Koper, Slovenia’s door to the world and also an important port for several land-locked central European countries (Austria, Czech Republic, Slovakia and Hungary) had before the dissolution of the SFRY via common Yugoslav territorial waters direct “territorial contact”, “the junction” to the “High Seas”. Without a corresponding delimitation on the sea, or some other arrangement, Sloveniawould, after becoming independent, lose her status as a maritime State and nation, which it had before, and thus be reduced to a geographically disadvantaged State having access to the high seas only via Croatian or Italian territorial waters. According to what is being explained above, the “territorial contact”, the “junction” of Slovenia’s territorial waters with the high seas seems to be the main problem to be resolved by arbitration, established by the Arbitration Agreement between the governments of both States, signed on November 4, 2009 and later ratified by both of them (Arbitration Agreement) 1 . For sure the “junction” as introduced in the Art. 3 (1) (b) of the Arbitration Agreement (“Slovenia’s junction to the high sea”) which the Arbitral Tribunal “shall determine” (Art. 3(1), was the most important part of the whole case at least for Slovenia. It is also the most interesting from the legal point of view. However, before touching upon the problem of “junction” just a few words have to be said concerning the history of the dispute, the scope of the dispute as well as of the task, entrusted to the established Arbitral Tribunal.

1 After the exchange of instruments of ratification the Arbitration Agreement on 29th of November 2009 entered into force and on May 25, 2011 the Arbitration Agreement was submitted for registration to the Secretary General of the UN.

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