259
As noted above, the Tribunal accepted most of Slovenia’s claims, short of granting direct, territorial contact with the high seas. In accordance with the aim of ensuring the “uninterrupted and uninterruptible access to and from Slovenia, including its
territorial sea and airspace”, it granted extensive freedoms of communication in the
Junction Area.
182
These essentially consist in the freedoms enjoyed by all States in
the EEZ of another coastal State, and “apply to all ships and aircraft, civil and military, of all flags or States of registration, equally and without discrimination on
grounds of nationality”
183
: therefore, the regime has an erga omnes character. This
regime is arguably reinforced by the provision that vessels exercising the aforesaid
freedoms “shall not be subject to boarding, arrest, detention, diversion or any other
form of interference by Croatia while in the Junction Area”.
184
In this respect, a number of issues arise that need to be addressed. First of all, the
scope of the freedoms recognized in the Final Award, their impact on Croatia’s territorial sovereignty, and the coordination between the freedoms and guarantees
established in the Award with the international obligations arising from the international, regional and local instruments applicable between the Parties. Secondly, and
incidentally, the extent to which the Arbitral Tribunal made use of the powers conferred upon it by the Arbitration Agreement.
It has been observed in the literature that “[b]y 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”.
185
This interpretation seems excessive. To begin with, the
rights granted to Slovenia in the Area “do not include the freedom to explore,
exploit, conserve or manage the natural resources, whether living or non-living, of
the waters or the seabed or the subsoil in the Junction Area”,
186
over which Croatia
retains its sovereign rights, and exclusive jurisdiction.
187
At the same time, the
Tribunal, while imposing a prohibition on Croatia to enforce its laws and regulations in the Junction Area, held that it was “fair, just, and practical for Croatia to
remain entitled to adopt laws and regulations applicable to non-Croatian ships and
aircraft in the Junction Area, giving effect to the generally accepted international
standards in accordance with UNCLOS Article 39(2) and (3)”.
188
182 Ibidem, para. 1123 ff. This special regime “shall subsist unless and until [it is] modified by
agreement between those two States” (ibidem, para. 1139).
183 See ibidem, paras 1123–1128, and Art. 58(1) UNCLOS.
184 Ibidem, para. 1129.
185 Petrić (2017), p. 375.
186 Croatia/Slovenia, para. 1126, where the Tribunal expressly excludes other rights over which
Croatia retains exclusive jurisdiction.
187 See Art. 56 UNCLOS. In defining the content and scope of the freedoms of communications in
the Area, the Tribunal states that “the freedoms of communication in the Junction Area are exercisable as if they were high seas freedoms exercisable in an exclusive economic zone. They are not
subject to any additional restrictions and conditions except as provided in this Award” (ibidem,
para. 1128).
188 Ibidem, para. 1130. This means that ships and aircraft of any nationality exercising the freedoms
of communication recognized by the Final Award “would be under an obligation to comply with
such Croatian laws and regulations”. Doubts may arise as to the exercise of enforcement powers
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award
As noted above, the Tribunal accepted most of Slovenia’s claims, short of granting direct, territorial contact with the high seas. In accordance with the aim of ensuring the “uninterrupted and uninterruptible access to and from Slovenia, including its
territorial sea and airspace”, it granted extensive freedoms of communication in the
Junction Area.
182
These essentially consist in the freedoms enjoyed by all States in
the EEZ of another coastal State, and “apply to all ships and aircraft, civil and military, of all flags or States of registration, equally and without discrimination on
grounds of nationality”
183
: therefore, the regime has an erga omnes character. This
regime is arguably reinforced by the provision that vessels exercising the aforesaid
freedoms “shall not be subject to boarding, arrest, detention, diversion or any other
form of interference by Croatia while in the Junction Area”.
184
In this respect, a number of issues arise that need to be addressed. First of all, the
scope of the freedoms recognized in the Final Award, their impact on Croatia’s territorial sovereignty, and the coordination between the freedoms and guarantees
established in the Award with the international obligations arising from the international, regional and local instruments applicable between the Parties. Secondly, and
incidentally, the extent to which the Arbitral Tribunal made use of the powers conferred upon it by the Arbitration Agreement.
It has been observed in the literature that “[b]y 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”.
185
This interpretation seems excessive. To begin with, the
rights granted to Slovenia in the Area “do not include the freedom to explore,
exploit, conserve or manage the natural resources, whether living or non-living, of
the waters or the seabed or the subsoil in the Junction Area”,
186
over which Croatia
retains its sovereign rights, and exclusive jurisdiction.
187
At the same time, the
Tribunal, while imposing a prohibition on Croatia to enforce its laws and regulations in the Junction Area, held that it was “fair, just, and practical for Croatia to
remain entitled to adopt laws and regulations applicable to non-Croatian ships and
aircraft in the Junction Area, giving effect to the generally accepted international
standards in accordance with UNCLOS Article 39(2) and (3)”.
188
182 Ibidem, para. 1123 ff. This special regime “shall subsist unless and until [it is] modified by
agreement between those two States” (ibidem, para. 1139).
183 See ibidem, paras 1123–1128, and Art. 58(1) UNCLOS.
184 Ibidem, para. 1129.
185 Petrić (2017), p. 375.
186 Croatia/Slovenia, para. 1126, where the Tribunal expressly excludes other rights over which
Croatia retains exclusive jurisdiction.
187 See Art. 56 UNCLOS. In defining the content and scope of the freedoms of communications in
the Area, the Tribunal states that “the freedoms of communication in the Junction Area are exercisable as if they were high seas freedoms exercisable in an exclusive economic zone. They are not
subject to any additional restrictions and conditions except as provided in this Award” (ibidem,
para. 1128).
188 Ibidem, para. 1130. This means that ships and aircraft of any nationality exercising the freedoms
of communication recognized by the Final Award “would be under an obligation to comply with
such Croatian laws and regulations”. Doubts may arise as to the exercise of enforcement powers
The Law of Maritime Delimitation in the Croatia/Slovenia Final Award