CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … Case. 38 The Tribunal thus concluded “that certain features of the coastal configuration in the present case produce an exaggeratedly adverse effect if the strict equidistance line is used, and do constitute a special circumstance.” 39 Consequently, the Tribunal decided to modify the equidistance line – although, as explicitly stated it could not “refashion nature”. It established the maritime boundary between the territorial waters of the parties by a geodetic line south of the simple equidistance line. This slight correction, one could claim more symbolic than real, slightly increases the size of Slovenia’s territorial sea, however with no significant effect upon its “boxed in” condition which results from the geographic configuration of the north Adriatic. Neither has this correction of the equidistance line not much in common with equity, nor does it contribute to the resolution of the problem of Slovenia’s “junction” to the high sea. This, indeed the core problem of the dispute, had to be resolved separately. The “Junction” of Slovenia to the High Seas It is clear from the text of the Art. 3(1) (b) of the Arbitration Agreement which explicitly stipulates that the Tribunal among other tasks “shall determine” Slovenia’s junction to the High Seas (international waters) that Slovenia would not consent to this Arbitration Agreement without the Tribunal being treaty bound to fulfil this task. For Slovenia, the Tribunal’s obligation to establish the “junction” of her territorial sea to the High Seas was the condition sine qua non to join the Arbitration Agreement. This is confirmed also by a special statement of Slovenia’s parliament. However, from Croatia’s unilateral declaration at the ratification of the Arbitration Agreement, Slovenia’s counter declaration, submissions to the Tribunal from both parties of entirely opposite views concerning “junction”, it was clear from the outset that this would be the most difficult part for the Arbitral Tribunal’s task, requesting a creative, innovative approach. Concerning the “junction”, Croatia’s position 40 was that the term “junction” is not defined in international law and the “term junction and the emphasis on the High Seas can only mean that the purpose is to give secure maritime access – not suspendable by any other State – between the High Seas and Slovenian waters”. 41 In fact, Croatia’s position was that the right to “innocent passage” through the territorial sea of Croatia sufficiently corresponds to Slovenia’s maritime interests. Croatia involved also the IMO traffic regulation and established regulation practise in the area, 42 and other legal regimes which according to Croatia fully protect Slovenia’s right of access to the High Seas. Additionally, Croatia submitted that Slovenia has always enjoyed uninterrupted access to the High Seas since the innocent passage through Croatia’s territorial waters has never been suspended. 43 According to Croatia, “Slovenia‘s concerns about access and communications are already met, both as a matter of law and of firmly established practice. That is what the right of innocent passage under the UNCLOS and the IMO scheme is designed to do and in fact does”. 44 Thus the “junction” according to Croatia should only mean the secured and respected right of innocent passage

38 North Sea Continental Shelf, Judgement, ICJ Report 1969; Final award, par. 1008. 39 Final Award, par. 1011. 40 Final Award, par. 1022-1027.

41 Final Award, par. 1027. 42 Final Award, par. 1035. 43 Final Award, par. 1136. 44 Final Award par. 1042.

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