257
Slovenian waters, corresponding to point T5 of the Osimo Treaty line, was in any
case more than 12 nautical miles from the nearest Slovenian baselines.
167
According
to Croatia, the “territorial contact” sought by Slovenia could only be achieved by
either extending the Slovenian territorial sea beyond the 12 nautical mile limit set
by Article 3 UNCLOS, or by withdrawing part of the Croatian territorial sea to a
distance less than 12 nautical miles from its coastline.
168
Even the possibility of
defining a point, line, or area connecting Slovenia and the high seas was a matter of
dispute between the Parties.
169
Of particular importance in this respect is the Croatian
Government’s Interpretative Declaration of 9 November 2009, according to which
“[n]othing in the Arbitration Agreement […] shall be understood as Croatia’s consent to Slovenia’s claim to its territorial contact with the high seas”.
170
Indeed,
Croatia’s position was that Slovenia’s right of access to the high seas was not only
already guaranteed by the UNCLOS provisions on innocent passage through the
territorial sea, but had also been guaranteed in practice by Croatia in an uninterrupted manner, even during the 1991–1995 war. In addition, the EU’s four freedoms
of movement and its “open skyes” policy, as well as the IMO traffic separation
scheme and the cooperation obligations imposed on the two States by virtue of their
NATO membership, further strengthened the protection of that right.
171
The Tribunal, partially accepting Slovenia’s arguments, held that the term “junction” “has an essentially spatial meaning and connotation” and indicates “the location of a physical connection”.
172
Then, since there was currently no place where
“Slovenia’s territorial sea [was] immediately adjacent to an area in which the applicable legal regime preserve[d] the freedoms [of the high seas]”,
173
the Tribunal, in
line with a creative approach to its task, determined that the “junction” between
Slovenia and the high seas was an area approximately 2.5 nm wide “in which ships
and aircraft enjoy essentially the same rights of access to and from Slovenia as they
enjoy on the high seas”.
174
In other words, the Tribunal, rather than creating a direct
contact between the Slovenian territorial sea and the high seas, subjected a portion
of the Croatian territorial sea to a functional regime, thereby connecting Slovenia’s
territorial sea with the area of high seas that lies beyond point T5 of the Osimo
Treaty line
175
:
167 Ibidem, para. 1021.
168 Ibidem, para. 1025.
169 The reader may want to compare Croatia’s position (ibidem, para. 1027) with that of Slovenia
(ibidem, paras 1029 and 1044).
170 For an account of the events leading to the adoption of the Interpretative Declaration, and an
overview of Slovenia’s reaction to it, see ibidem, paras 99–144.
171 Ibidem, para. 1038.
172 Ibidem, paras 1073–1077.
173 Croatia/Slovenia, para. 1078.
174 Ibidem, para. 1081.
175 The Parties agreed that, since no Adriatic coastal State has declared an EEZ, the maritime area
south of the aforesaid point T5 must be considered high seas.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
Slovenian waters, corresponding to point T5 of the Osimo Treaty line, was in any
case more than 12 nautical miles from the nearest Slovenian baselines.
167
According
to Croatia, the “territorial contact” sought by Slovenia could only be achieved by
either extending the Slovenian territorial sea beyond the 12 nautical mile limit set
by Article 3 UNCLOS, or by withdrawing part of the Croatian territorial sea to a
distance less than 12 nautical miles from its coastline.
168
Even the possibility of
defining a point, line, or area connecting Slovenia and the high seas was a matter of
dispute between the Parties.
169
Of particular importance in this respect is the Croatian
Government’s Interpretative Declaration of 9 November 2009, according to which
“[n]othing in the Arbitration Agreement […] shall be understood as Croatia’s consent to Slovenia’s claim to its territorial contact with the high seas”.
170
Indeed,
Croatia’s position was that Slovenia’s right of access to the high seas was not only
already guaranteed by the UNCLOS provisions on innocent passage through the
territorial sea, but had also been guaranteed in practice by Croatia in an uninterrupted manner, even during the 1991–1995 war. In addition, the EU’s four freedoms
of movement and its “open skyes” policy, as well as the IMO traffic separation
scheme and the cooperation obligations imposed on the two States by virtue of their
NATO membership, further strengthened the protection of that right.
171
The Tribunal, partially accepting Slovenia’s arguments, held that the term “junction” “has an essentially spatial meaning and connotation” and indicates “the location of a physical connection”.
172
Then, since there was currently no place where
“Slovenia’s territorial sea [was] immediately adjacent to an area in which the applicable legal regime preserve[d] the freedoms [of the high seas]”,
173
the Tribunal, in
line with a creative approach to its task, determined that the “junction” between
Slovenia and the high seas was an area approximately 2.5 nm wide “in which ships
and aircraft enjoy essentially the same rights of access to and from Slovenia as they
enjoy on the high seas”.
174
In other words, the Tribunal, rather than creating a direct
contact between the Slovenian territorial sea and the high seas, subjected a portion
of the Croatian territorial sea to a functional regime, thereby connecting Slovenia’s
territorial sea with the area of high seas that lies beyond point T5 of the Osimo
Treaty line
175
:
167 Ibidem, para. 1021.
168 Ibidem, para. 1025.
169 The reader may want to compare Croatia’s position (ibidem, para. 1027) with that of Slovenia
(ibidem, paras 1029 and 1044).
170 For an account of the events leading to the adoption of the Interpretative Declaration, and an
overview of Slovenia’s reaction to it, see ibidem, paras 99–144.
171 Ibidem, para. 1038.
172 Ibidem, paras 1073–1077.
173 Croatia/Slovenia, para. 1078.
174 Ibidem, para. 1081.
175 The Parties agreed that, since no Adriatic coastal State has declared an EEZ, the maritime area
south of the aforesaid point T5 must be considered high seas.
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award