CYIL vol. 8 (2017)

ERNEST PETRIČ CYIL 8 ȍ2017Ȏ The Tribunal’s Award is based on sources clearly established by the parties in the Arbitration Agreement and on legal considerations of the arbiters. As a result, the award in its entirety is a solid compromise with which both parties could live and continue to develop their cooperation. By a fair estimate it can be said that no party of the dispute has “won” or has “lost”. As it is the case in most international arbitrations and judgements of international courts the law, the international law has won. The compromise solution established by the Tribunal’s Award might be an encouragement to both parties, neighbours, partners in the EU and in NATO with comprehensive and complex common interests, to adopt and realize the award and by their cooperation resolve problems of those local people who were impacted by the newly established boundary. And via cooperation promote development, protection of the environment, tourism, fishery, maritime research and also security of navigation in the “junction area”, in the Piran Bay and in their territorial waters in the northern Adriatic. By the Tribunal’s award, Slovenia is in full functional meaning assured the “junction” to the High Seas. Via the established “junction area” and legal regime in it Slovenia’s territorial sea is directly, without any possible interference of Croatia connected with the High Seas. The “junction” cannot be legally obstructed, hindered, prevented or limited by any other State, including Croatia in all relevant matters of freedom of communication. Thus, functionally Slovenia is connected to the High Seas, and is thus functionally a maritime State. However, because of geographic circumstances in the northern Adriatic at the same time, it is a geographically disadvantaged State not entitled to its continental shelf or EEZ. Navigation to and from its port Koper shall however be regulated and function according to the legal regime of the “junction area”, this meaning in fact direct and unhindered access from its territorial waters via the “junction area” to the waters of the High Seas. Croatia retained its formal sovereignty over all its territorial sea. Legally, according to international law, her sovereignty in the “junction area” still exists but is reduced to a legal title only ( nuda soverenita ). In this part of Croatia’s territorial sea (inside the junction area) international legal regulation is grosso modo equal to the regulation on High Seas or in EEZ. The Arbitral Tribunal was bound to determine Slovenia’s junction to the High Seas. It could hypothetically establish the “junction” also by a bold but also far reaching step: to transform by its award a part of Croatia’s territorial sea formally into High Seas. Such an encroachment on the integrity of Croatia’s existing territorial sea would not only be bold but also detrimental for the compromise character of the Final Award and probably also for future relations between the parties. Could the land border as established by the Arbitral Tribunal be in some locations different, more practical or more “friendly” to the local people and local circumstances? Maybe. Had the two really “national” arbiters continued their role as arbiters of the Tribunal, they might have contributed, by their knowledge and understanding of local circumstances to more human and more practical solutions. However, the parties, in the process of demarcation of the boundary on the ground, still can do it in the spirit of good neighbourly relations and in the interest of the local people. One last but difficult question remains: how to proceed with the implementation of the Tribunal’s award? The parties have agreed in the Arbitration Agreement [Art. 7 (2)] that the “award of the Arbitral Tribunal shall be binding on the parties and shall constitute definitive settlement of the dispute.” In par. 3 of the same article it is clearly stipulated that “the Parties

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