CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ also established on the map enclosed to the award is the “junction area” of Slovenia to the High Seas, according to Arbitration Agreement Art. 3(1)(b). Slovenia in her submissions to the Tribunal claimed, basing her claim on Art. 3 (1) c of the Arbitration Agreement, it should be entitled to continental shelf. When viewed in the context of the Adriatic Sea, as a whole Slovenia’s claim to a tiny continental shelf does not seem irrational. It was however outright rejected by Croatia, stating that Slovenia as a so- called geographically disadvantaged State has neither a right to a continental shelf, given its geographical location nor “the possibility to proclaim other maritime zones beyond the area under its sovereignty in the direction towards the high seas (contiguous zone, Exclusive Economic Zone)”. 61 Slovenia evidently expected the Arbitral Tribunal might, according to its task as stipulated in Art. 3 (1) c and in Art. 4(b) of the Arbitration Agreement to determine the regime for the use of the relevant maritime areas by applying, besides international law, also “equity” and the principle of good neighbourly relations in order to achieve a “fair and just result” and by taking into account all relevant circumstances, find and introduce a creative solution and establish a “fair and just regime” for the use of continental shelf and for the use of the other relevant maritime areas in the north Adriatic. Hopefully, the resolution of the dispute on delimitations might in some distant future open the way for a cooperative approach, based on common interest and agreements for the protection and use of water and other resources of this part of the Adriatic Sea, shared by Croatia, Italy and Slovenia. However, at this stage the Arbitral Tribunal had to determine that “Slovenia’s claim to continental shelf rights is… incompatible with the Tribunal’s determination of the entitlements of the two States in this area and no question of continental shelf arises.” 62 Mutatis mutandis the Tribunal concluded that international law “does not require the creation of a special regime for parts of the exclusive economic zone in the northern Adriatic Sea, and neither does equity nor the principle of good neighbourly relations.” 63 The Legal Regime of the Junction Area The Arbitral Tribunal had, together with establishing the “junction area”, to establish the new specific legal regime in this area of the northern Adriatic. This regime, called “Regime of the Junction Area” is a legal regime with erga omnes effect. According to its task, stipulated in Art. 3 and Art. 4 of the Arbitration Agreement, the Tribunal in the Dispositif of its Final Award 64 established a special legal regime in a part of Croatia’s territorial sea. This regime has a direct impact on the rights and duties of Slovenia and Croatia but also on the rights and duties of third States, in particular concerning their navigation and overflight to and from Slovenia’s territorial sea through this “junction area” to the High Seas. Established by the Arbitral Tribunal, i.e. by an international judicial body, this special regime should be considered as a “ res judicata ”, binding for the parties and establishing their rights and duties in the designated part of Croatia’s territorial sea. It is a permanent legal regime since it “shall subsist unless and until modified by agreement between these two States” 65 , Slovenia and Croatia. Neither of the parties alone, nor a third State, or an international institution, can

61 Final Award, par. 1091. 62 Final Award, par. 1103. 63 Final Award, par. 1142. 64 Final award, Dispositif, IV B. 65 See The Dispositif, V.

374