CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ to and from Slovenia’s ports which Slovenia already fully enjoys. Consequently, according to Croatia “Slovenia’s junction to the High Sea, if understood as a claim to a territorial contact with the High Seas, must be denied. 45 However, “junction to the High Seas understood as safe and uninterrupted access to the High Seas should be secured by the Tribunal by endorsing a suitable navigational regime”. 46 In Slovenia’s view the “junction” in its ordinary meaning implies a link, a connection, in our case between two maritime areas, Slovenia’s territorial waters (territorial sea) and the High Seas. Accordingly, junction of Slovenia to the High Seas means “a direct junction without having to pass through the territorial sea of another State”. 47 Thus according to Slovenia there should be a corridor – of High Seas (international sea) – establishing a direct junction of Slovenia’s territorial sea to the High Seas. 48 A mere right of innocent passage “has never been acceptable to Slovenia” 49 since Croatia could temporarily suspend the innocent passage and obstruct or hinder maritime traffic to and from Slovenia’s ports, Koper in particular. Slovenia also noted that it would have limited rights in Croatia’s territorial waters in respect to overflight, laying of pipelines or cables, hot pursuit and the passage of warships. Slovenia also referred to the not ratified Drnovšek-Račan Agreement as an “indicator of the way the Parties themselves had interpreted the notion of junction”. 50 Slovenia also warned that “not to determine Slovenia’s junction to the High Seas would amount to a decision infra petita, whereby the Tribunal would not have fully exercised its jurisdiction”. 51 This warning has actually also been repeated by a public statement of Slovenia’s parliament. According to Slovenia, the Tribunal was entitled and bound to determine Slovenia’s “junction” to the High Seas. Slovenia in its submission claimed that in this case “special circumstances do exist” 52 and that it is “feasible for the Tribunal to determine Slovenia’s junction to the High Seas … by establishing a High Seas corridor along the Croatian territorial sea”. 53 According to Slovenia, “there is no legal obstacle to partly limiting the extent of Croatia’s territorial sea in order to take the very special circumstances of the case into consideration”. 54 “According to Slovenia, “State practise contains examples of the limitation of territorial sea claims of a State in order to meet a vital interest of a neighbouring State and to ensure access to remote or otherwise isolated ports.” 55 A 3 NM wide corridor of High Seas water, through a stretch of Croatia’s territorial waters to join Slovenia’s territorial waters would be an appropriate solution in line with international law, equity and the principle of good neighbourly relations, and would be fair. Slovenia in its submissions precisely located the corridor, i.e. the junction of Slovenia’s territorial waters with the High Seas.

45 Final Award, par. 1047. 46 Final Award, par. 1053. 47 Final Award, par. 1028. 48 Ibid.

49 Final Award, par. 1029. 50 Final Award, par. 1031. 51 Final Award, par. 1044. 52 Final Award, par. 1056. 53 Final Award, par. 1057. 54 Ibid. 55 Final Award, par. 1058, examples of France/ Monaco, the example of Japan in limiting its territorial sea claims in five straits, and the example of Finland in the Gulf of Finland were cited by Slovenia.

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