256
of the Slovenian State and was the fundamental quid pro quo on which its acceptance of the Arbitration Agreement had been based.
159
As observed by a commentator, resolution of the question, which was further complicated by the Parties’ sharp
disagreement about the meaning of the term “junction”, required “a creative, innovative approach” on the part of the Tribunal.
160
The Parties’ awareness of the complexity of the issue led to the insertion in the Arbitration Agreement of Article 4(1)
(b), which, as mentioned above, conferred upon the Tribunal power to resort to
equity and the principle of good neighbourly relations, in addition to international
law, in order to achieve a fair and just result by taking into account all relevant circumstances.
161
Of course, any and all determinations concerning the “junction” had
to be made in the light of that provision. From this point of view, the Tribunal’s
distinction between the determination regarding the location of the junction and the
definition of the usage regime in that area seems artificial.
162
As noted in the literature, “the concept of a Junction Area cannot be understood without the regime that
applies to that Area”.
163
The conclusion reached by the Tribunal—which was based on the Tribunal’s
interpretation of its tasks and powers under Article 3(1)(b) and (c) and Article 4(b),
respectively, of the Arbitration Agreement—
164
is an example of a solution that is at
once creative and balanced. The creative and balanced character of the Tribunal’s
solution can be noted both in the determination concerning the size and location of
the junction and in the definition of the usage regime in that area.
As regards the first, both Parties attached importance “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, viewed in the context of the geography
of the northern Adriatic Sea”.
165
Conversely, they deeply disagreed about the meaning of the phrase “junction to the High Sea”—a notion which, as is well known,
does not exist in UNCLOS and was first introduced in the Arbitration Agreement,
and hence, could only be interpreted on the basis of the latter and related annexes
and travaux preparatoires. For Slovenia, the expression had to be understood in the
sense of a territorial contact between the Slovenian territorial sea and the high
seas.
166
Croatia opposed this view, arguing that the high seas point closest to
159 Croatia/Slovenia, paras 934–936.
160 Petrić (2017), p. 371.
161 Cataldi (2013), p. 262, noted that the concept of ‘fair result’ “tends, when applying the ancient
saying ‘summus ius summa iniuria’, to mitigate the unfair effects that may result from the application of the same rules to different geographic circumstances. The role of the Tribunal in this case
will therefore be to reach a decision that considers, on the scale of fairness, the respective weight
of rules of law, principles of equity and good neighborly relations”.
162 Supra, Sect. 4. See also Croatia/Slovenia, paras 1015–1083, where the Tribunal determines the
“location of the junction”, and paras 1122–1140, where it defines its regime.
163 Bankes (2017).
164 Croatia/Slovenia, para. 1079. For a similar interpretation, see Cataldi (2013).
165 Ibidem, para. 1080.
166 Ibidem, para. 1028 ff.
A. Insolia
of the Slovenian State and was the fundamental quid pro quo on which its acceptance of the Arbitration Agreement had been based.
159
As observed by a commentator, resolution of the question, which was further complicated by the Parties’ sharp
disagreement about the meaning of the term “junction”, required “a creative, innovative approach” on the part of the Tribunal.
160
The Parties’ awareness of the complexity of the issue led to the insertion in the Arbitration Agreement of Article 4(1)
(b), which, as mentioned above, conferred upon the Tribunal power to resort to
equity and the principle of good neighbourly relations, in addition to international
law, in order to achieve a fair and just result by taking into account all relevant circumstances.
161
Of course, any and all determinations concerning the “junction” had
to be made in the light of that provision. From this point of view, the Tribunal’s
distinction between the determination regarding the location of the junction and the
definition of the usage regime in that area seems artificial.
162
As noted in the literature, “the concept of a Junction Area cannot be understood without the regime that
applies to that Area”.
163
The conclusion reached by the Tribunal—which was based on the Tribunal’s
interpretation of its tasks and powers under Article 3(1)(b) and (c) and Article 4(b),
respectively, of the Arbitration Agreement—
164
is an example of a solution that is at
once creative and balanced. The creative and balanced character of the Tribunal’s
solution can be noted both in the determination concerning the size and location of
the junction and in the definition of the usage regime in that area.
As regards the first, both Parties attached importance “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, viewed in the context of the geography
of the northern Adriatic Sea”.
165
Conversely, they deeply disagreed about the meaning of the phrase “junction to the High Sea”—a notion which, as is well known,
does not exist in UNCLOS and was first introduced in the Arbitration Agreement,
and hence, could only be interpreted on the basis of the latter and related annexes
and travaux preparatoires. For Slovenia, the expression had to be understood in the
sense of a territorial contact between the Slovenian territorial sea and the high
seas.
166
Croatia opposed this view, arguing that the high seas point closest to
159 Croatia/Slovenia, paras 934–936.
160 Petrić (2017), p. 371.
161 Cataldi (2013), p. 262, noted that the concept of ‘fair result’ “tends, when applying the ancient
saying ‘summus ius summa iniuria’, to mitigate the unfair effects that may result from the application of the same rules to different geographic circumstances. The role of the Tribunal in this case
will therefore be to reach a decision that considers, on the scale of fairness, the respective weight
of rules of law, principles of equity and good neighborly relations”.
162 Supra, Sect. 4. See also Croatia/Slovenia, paras 1015–1083, where the Tribunal determines the
“location of the junction”, and paras 1122–1140, where it defines its regime.
163 Bankes (2017).
164 Croatia/Slovenia, para. 1079. For a similar interpretation, see Cataldi (2013).
165 Ibidem, para. 1080.
166 Ibidem, para. 1028 ff.
A. Insolia