CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … perceived as an appropriate balance between Slovenia’s “junction” of its territorial waters to the high seas, and the opening of a way for Croatia, by abolishment of Slovenia’s blockade, to conclude the negotiations to join the EU as a full member. This vital interest of Slovenia to have the “junction” – not just access in the meaning of “innocent passage” – to the high seas was consistently present in her position during bilateral negotiations since 1992 as well as during 2009 negotiations on the Arbitration Agreement. It seems from the later developments that Croatia accepted the incorporation in the final draft of the Arbitration Agreement the stipulations that the Arbitral Tribunal “shall determine”… “Slovenia’s junction to the high seas” only under urgency resulting from EU membership negotiations. As part of the compromise, Croatia was assured according to the Art. 11 (3) of the Draft Arbitration Agreement “all procedural timelines expressed in this Agreement shall start to apply from the date of the signature of Croatia’s EU Accession Treaty”. This practically meant that the award of the Arbitration Tribunal would be delivered after Croatian accession to the EU. Thus, as part of the compromise Slovenia relinquished her main negotiation weapon – the possibility of causing trouble and blocking Croatia in joining the EU. Croatia’s acceptance of the “junction” in the Draft Arbitration Agreement was immediately followed by her endeavours to deprive the “junction” of the meaning of direct territorial contact of Slovenia’s territorial waters with the high seas. Croatia issued, after parties had signed on November 4, 2009 the Arbitration Agreement in the presence of the Prime minister of Sweden representing the EU Presidency, and thus confirming the EU’s involvement and sponsorship of the Arbitration Agreement, an unilateral statement that “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 high seas”. 5 Unilateral statements (unilateral interpretative declarations) have sine dubio no legal effects. However, Croatia’s unilateral statement proves Croatia’s intention from the very day of the conclusion of the Arbitration Agreement to deprive the Arbitral Tribunal of its prerogative to establish by its award inter alia Slovenia’s junction (territorial contact) of her territorial waters with the high seas. To confirm the legal irrelevance of Croatia’s above mentioned unilateral statement Slovenia responded on Nov. 19, 2009 with its statement, which reads: “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 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 seas), thus the preservation of the right of Slovenia to the junction of the high seas as of the day of its independence, 25 June 1991.” 6 After ratification procedures on both sides, including a public referendum approving the Arbitration Agreement in Slovenia, and two Constitutional Court rulings in Slovenia were completed, the Arbitration Agreement on November 29, 2010 entered into force. It is not necessary here to dwell on those articles of the Arbitration Agreement dealing with the composition of the Tribunal, modalities of its functioning etc. However, it is important

5 The Final Award, PCA case No. 2012-04, par. 132. 6 Final Award, par.135.

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