258
Such a connection results from the identification of an area of Croatia’s territorial sea adjacent to the boundary with Italy established by the Treaty of Osimo within which a special
legal regime applies, as is set out below. The Tribunal will refer to this area as the ‘Junction
Area’.
176
Within the Junction Area, the Tribunal established a hybrid regime—one which
both respected Croatia’s territorial sovereignty over the waters of the Area and guaranteed the exercise of a specific set of freedoms that States enjoyed on the high
seas—while at the same time coordinating that regime with the international obligations arising from the relevant universal and regional instruments.
In reaching its decision, the Tribunal was once again guided by the aim of striking a balance between protecting Croatia’s sovereignty over its territorial sea and
guaranteeing the Slovenia’s freedoms of communication between its territorial sea
and the high seas.
177
The Tribunal was faced with a number of alternatives. One was the creation of a
high seas corridor on a portion of the Croatian territorial sea, as requested by
Slovenia—a solution that, according to the latter, entailed “the limitation of territorial sea claims of a State in order to meet the vital interest of a neighbouring State
and to ensure access to remote or otherwise isolated ports”.
178
Another one was
Croatia’s proposal to grant to Slovenia the right innocent passage through international straits excluded from the transit passage regime, which is set forth in Article
45(1)(a) UNCLOS.
179
That provision was to be applied by analogy, but “subject to
the existing IMO scheme” and only in “the area consisting of the north-bound navigational way of the IMO traffic separation scheme insofar as it, or its extension from
Point 5 [of the Osimo Treaty line], falls within Croatian territorial sea”.
180
Yet
another alternative, albeit not invoked by the Parties and expressly rejected by
Slovenia, was to establish in the Area a regime of transit passage under Articles
37–39 UNCLOS.
181
176 Croatia/Slovenia, para. 1081. The Junction Area is shown on Map VII at p. 347 of the Award.
177 Ibidem, para. 1123.
178 Ibidem, para. 1058.
179 Croatia/Slovenia, para. 200. Art. 45 UNCLOS, while expressly referring to the regime of innocent passage in the territorial sea, provides that “there shall be no suspension of innocent passage
through such straits”. For an analysis of the regime of innocent passage in the territorial sea, see
Cataldi (1990).
180 Croatia/Slovenia, paras 1112–1115. For Croatia, this solution—especially the subjection of any
future regime to the IMO traffic separation scheme—was justified by the need to ensure safety of
navigation, which constituted “the crucial ‘relevant circumstance’, as the ‘relevant maritime areas’
in this case—being ‘those located in the maritime space between the high seas, point 5 and areas
to the south-west, and the outer limit of Slovenia’s territorial sea’—‘are among the maritime areas
with the highest density of Adriatic Sea commercial traffic’” (ibidem, para. 1039). For a discussion
of the competences of coastal States as regards safety of navigation, and their cooperation with the
IMO, see Virzo (2015).
181 See Cataldi (2013), p. 262. Slovenia objected both to Croatia’s proposal concerning the application of Art. 45 UNCLOS, and to the establishment of a regime of transit passage or of a right of
archipelagic sea lanes passage, as neither the former nor the latter “provide[d] a right of unimpeded
passage”, Croatia/Slovenia, para. 1110.
A. Insolia
Such a connection results from the identification of an area of Croatia’s territorial sea adjacent to the boundary with Italy established by the Treaty of Osimo within which a special
legal regime applies, as is set out below. The Tribunal will refer to this area as the ‘Junction
Area’.
176
Within the Junction Area, the Tribunal established a hybrid regime—one which
both respected Croatia’s territorial sovereignty over the waters of the Area and guaranteed the exercise of a specific set of freedoms that States enjoyed on the high
seas—while at the same time coordinating that regime with the international obligations arising from the relevant universal and regional instruments.
In reaching its decision, the Tribunal was once again guided by the aim of striking a balance between protecting Croatia’s sovereignty over its territorial sea and
guaranteeing the Slovenia’s freedoms of communication between its territorial sea
and the high seas.
177
The Tribunal was faced with a number of alternatives. One was the creation of a
high seas corridor on a portion of the Croatian territorial sea, as requested by
Slovenia—a solution that, according to the latter, entailed “the limitation of territorial sea claims of a State in order to meet the vital interest of a neighbouring State
and to ensure access to remote or otherwise isolated ports”.
178
Another one was
Croatia’s proposal to grant to Slovenia the right innocent passage through international straits excluded from the transit passage regime, which is set forth in Article
45(1)(a) UNCLOS.
179
That provision was to be applied by analogy, but “subject to
the existing IMO scheme” and only in “the area consisting of the north-bound navigational way of the IMO traffic separation scheme insofar as it, or its extension from
Point 5 [of the Osimo Treaty line], falls within Croatian territorial sea”.
180
Yet
another alternative, albeit not invoked by the Parties and expressly rejected by
Slovenia, was to establish in the Area a regime of transit passage under Articles
37–39 UNCLOS.
181
176 Croatia/Slovenia, para. 1081. The Junction Area is shown on Map VII at p. 347 of the Award.
177 Ibidem, para. 1123.
178 Ibidem, para. 1058.
179 Croatia/Slovenia, para. 200. Art. 45 UNCLOS, while expressly referring to the regime of innocent passage in the territorial sea, provides that “there shall be no suspension of innocent passage
through such straits”. For an analysis of the regime of innocent passage in the territorial sea, see
Cataldi (1990).
180 Croatia/Slovenia, paras 1112–1115. For Croatia, this solution—especially the subjection of any
future regime to the IMO traffic separation scheme—was justified by the need to ensure safety of
navigation, which constituted “the crucial ‘relevant circumstance’, as the ‘relevant maritime areas’
in this case—being ‘those located in the maritime space between the high seas, point 5 and areas
to the south-west, and the outer limit of Slovenia’s territorial sea’—‘are among the maritime areas
with the highest density of Adriatic Sea commercial traffic’” (ibidem, para. 1039). For a discussion
of the competences of coastal States as regards safety of navigation, and their cooperation with the
IMO, see Virzo (2015).
181 See Cataldi (2013), p. 262. Slovenia objected both to Croatia’s proposal concerning the application of Art. 45 UNCLOS, and to the establishment of a regime of transit passage or of a right of
archipelagic sea lanes passage, as neither the former nor the latter “provide[d] a right of unimpeded
passage”, Croatia/Slovenia, para. 1110.
A. Insolia