CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … It is clear from the written and oral submissions of both parties that “the main concern in this context is with rights of access from the High Seas to Slovenia, and from Slovenia to the High Seas, for ships and aircraft” 56 including navigation and overflight, but also, according to UNCLOS Art. 58 (1): laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines. 57 Concerning the meaning of “junction to the High Seas”, the Tribunal concluded that the term “junction” signifies the physical location of a connection between two or more areas, in the present case as the “connection between the territorial sea of Slovenia and an area beyond the territorial seas of Croatia and Italy”. 58 The Tribunal also asserted that the term “junction” can mean either a geographical point or line or an area. In this case, the Tribunal determined the “junction” as an area, as a space, not as a line. The Arbitral Tribunal, while locating Slovenia’s junction to the High Seas, had to take into account the geographical realities, the already previously existing delimitation of the sea in the northern Adriatic between the SFRY and Italy (Osimo Treaty), and delimitations established by the Tribunal itself, i.e. delimitations of the territorial waters of Slovenia and Croatia. The Tribunal thus had to take into account that the whole of Slovenia’s territorial sea boundary is adjacent to the territorial sea of either Italy or Croatia. There is thus no place where at present Slovenia’s territorial sea is immediately adjacent to an area in which the applicable legal regime preserves the freedoms of navigation and over-flight, and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea, related to these freedoms, based onArt. 87 of UNCLOS, both in the EEC and on the High Seas. According to its duty under the Arbitration Agreement to achieve a fair and just result by taking into account all relevant circumstances, which includes consideration of the vital interests of the parties, the Tribunal had to consider what modifications might be necessary to achieve the requested “fair and just result.” 59 The Tribunal took into account relevant circumstances submitted by the parties and noted the importance attached to the question of rights of access to and from Slovenia by sea and by air and of the exercise of jurisdiction over ships and aircraft exercising that right. Accordingly, the Tribunal determined that the “junction” between the Slovenian territorial sea and the High Seas is an “area” in which ships and aircraft enjoy essentially the same rights of access to and from Slovenia as they enjoy on the High Seas irrelevant of the fact whether this part of the High Seas is or is not under the regime of EEZ. This area, the “junction area”, connects Slovenia’s territorial sea with the waters of the Adriatic Sea which are international waters, the High Seas, beyond the 12 NM territorial sea limits of Croatia and Italy. This “connection results from the identification by the Arbitral Tribunal of an area of Croatia’s territorial sea adjacent to the boundary with Italy established by the Treaty of Osimo, within which a special legal regime applies”. 60 This area approximately 2,5 NM wide and precisely delimited by the Tribunal in the “Dispositif ” of the Final Award, (part IV), and

56 Final Award, par. 1066. 57 Final Award, par. 1068. 58 Final Award, par. 1076. 59 Final Award, par. 1079. 60 Final Award, par. 1081.

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