CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

“JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA …

History of the Dispute Soon after declaring their independence on June 25, 1991 the parties (Slovenia and Croatia) undertook negotiations to delimit their boundary on land and on the sea. Negotiations lasted with some interruptions close to two decades, however, with no agreement reached. These bilateral endeavours are extensively described and analysed in the Final Award of the Arbitral Tribunal. 2 Both parties while declaring their independence on June 25, 1991 agreed that their state border on land should, according to the principle of uti posidetis juris follow the former administrative border existing between them within the SFRJ (Yugoslavia) on the day of their independence. This administrative border, which was to become the state border between the new independent States, was in ca. 91% of its length legally and historically well established and undisputed, based mainly on the aligned cadastral limits. There were however several points on the land border which were disputed by either one or both parties mainly because of discrepancies between their cadastres, the lack of them, or their claims based on other legal or historic proofs to the existence of the boundary in the past. The parties, however, fundamentally disagreed concerning the delimitations on the sea. While Slovenia claimed its full sovereignty over the whole Bay of Piran as Slovenia’s internal waters, and claimed the “territorial contact”, “junction” of her territorial waters with the high seas, which it had as a part of the SFRJ (Yugoslavia) via Yugoslav territorial waters prior to independence, Croatia insisted on the delimitation of the Bay of Piran by an equidistance line according to the UNCLOS rule in Art. 15, and denied any right nor necessity of Slovenia’s territorial contact, “junction” to the high seas beyond the right of innocent passage through Croatian territorial waters, in accordance with the UNCLOS and customary international law. These profound differences, but also the radicalised public opinion on both sides prevented the parties from achieving any compromise solution, although they were at least once close to it. 3 The draft of the so-called Drnovšek-Račan Agreement represented a negotiated compromise which inter alia included in its Art. 4 “Junction of the territorial sea of the Republic of Slovenia with the high seas” (in the Slovene version) and “Link of the Republic of Slovenia’s territorial sea with the high seas” (in the Croatian version). This draft failed to be ratified in Croatia’s parliament, nevertheless it indicates the crucial importance in this dispute of the “territorial contact” or “junction” or “link” of Slovenia’s territorial waters (territorial sea) with the high seas. According to the Drnovšek-Račan draft agreement, irrelevant of the term used (“junction” or “link”), it clearly indicated a “corridor” of the high seas to Slovenia’s territorial sea of an established width. In any case, one can safely claim, that even if this draft would by ratification enter into force – but it did not - a serious dispute would probably remain on the actual meaning of the “junction” or “link” of Slovenia’s territorial waters with the high seas. This was later confirmed also during negotiations which resulted in the conclusion of the Arbitration Agreement.

2 These bilateral endeavours are described and analysed in par. 44 to 97 of the Final Award, 29 June 2017, PCA CASE No. 2012-04. 3 The so-called Drnovšek-Račan Agreement which has been agreed to by the two prime ministers and initialled on July 20, 2001, presented inter alia in Slovenia’s Memorial to the Tribunal as Treaty between the Republic of Slovenia and the Republic of Croatia on the Common State Border, Annex SI-316.

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