CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ “JUNCTION AREA” ȃ A NEW LEGAL REGIME PCA … legally change nor abolish this regime, this “ res judicata ”. Only by a future agreement of Slovenia and Croatia this regime, as well as any other part of the Final Award could be changed or abolished. By the legal regime of the “junction area” Croatia’s sovereignty in this part of her territorial sea is reduced to the legal title of sovereignty only. The factual legal regime in the “junction area” is, concerning freedoms of navigation, overflight, laying of submarine cables and pipelines and other lawful uses of the High Seas in fact very close, nearly identical to the general international legal regime of the High Seas as codified by the UNCLOS. The “Regime of the Junction Area” is precisely defined in the Dispositif of the Tribunal’s Final Award. The rights and duties in the “junction area” shall apply to all ships and all aircraft while in the area. According to the Tribunals’ Final Award, the main features of the regime in the “junction area” are: to all ships and aircraft including military, of all flags or registrations without any discrimination, the freedom of communication, consisting of freedoms of navigation and overflight, laying of submarine cables and pipelines and other internationally lawful uses of the sea, shall apply for the purposes of access to and from Slovenia; this freedom of communication shall not be conditioned upon any criterion of innocence and shall not be suspendable under any circumstances; ships and aircraft exercising the freedom of communication shall not be subject to boarding, arrest, detention, diversion or any other form of interference by Croatia while in the junction area. However, this freedom of communication shall, because of the fact that the “junction area” remains under Croatia’s sovereignty, not include freedom to explore, exploit, conserve or manage the natural resources of the waters or the seabed or the subsoil nor shall include the right to establish artificial islands or the right to engage in maritime scientific research in the “junction area”. Croatia also retains the right in the “junction area” to respond to a request made for assistance. Without entering into a further detailed description and analysis of the junction area’s regime as precisely established by the Arbitral Tribunal in the Dispositif of the Final Award, it may be concluded that the regime is a creative and balanced resolution of the contradicting vital interests of Slovenia to have real, functioning and undisturbed contact, “junction” of its territorial sea with the High Seas, and the vital interest of Croatia to retain its formal, de jure sovereignty over all her territorial sea including the “junction area”. By accepting and implementing the Tribunal’s award the parties would eliminate from their neighbourly relations the contaminating border dispute and establish solid foundations for their future cooperation. Concluding remarks After the Arbitral Tribunal issued the Final Award, several questions were raised in professional circles and in public opinion and of course by official representatives of both parties: which party had won, could the award be “better”, what is actually the legal status of the award, does it have an impact on Croatia’s sovereignty in the junction area etc., has the Tribunal fulfilled its task to determine according to the rules and principles of international law the course of the land and the maritime boundary between the Republic of Croatia and the Republic of Slovenia, and has the Tribunal according to international law, equity and principles of good neighbourly relations determined Slovenia’s “junction” to the High Seas and the regime for the use of relevant maritime areas.

375