260
Needless to say, Croatia’s power to enforce its laws and regulations remains
unaltered in all maritime areas outside the Junction Area, including with regard to
“the right to take enforcement action in respect of violations of Croatian law that
had been committed in the Junction Area”.
189
Finally, Croatia retains the right to
intervene, upon request, to provide assistance to ships in the Junction Area and also,
exceptionally, the right to exercise in the area the powers recognized by Article 221
UNCLOS in case of maritime casualties posing a pollution threat. In light of the
regime described above, the rights retained by Croatia in the Junction Area cannot
be said to amount merely to formal or de jure sovereignty.
In the same way, as regards the freedoms of communication in the Junction Area,
they cannot be said to have unlimited scope, nor can it be said that Croatia has no
role whatsoever in their exercise. Indeed, as stated by the Tribunal, those freedoms
may not be subject to any coastal State controls or requirements “other than those
permitted under the legal regime of the EEZ established by UNCLOS”.
190
In addition, the regime established by the Final Award is without prejudice to the obligations deriving from EU law, from the IMO Traffic Separation Scheme, and from the
international standards applicable to air navigation. More generally, it is considered
by the Tribunal to be consistent with the basic principles embodied in UNCLOS, as
provided by Art. 311(3). Finally, the Tribunal, recalling the “express obligations”
imposed on all States by Articles 123, 300, and 301 UNCLOS, established cooperation obligations and encouraged “the Parties to cooperate fully with each other, and
with other States, in the exercise of their rights and the performance of their obligations in the northern Adriatic”.
191
In conclusion, it seems that Croatia’s sovereignty over the Junction Area cannot
be qualified as merely nominal. In addressing what was certainly the most complex
issue among those submitted to it, the Tribunal seems to have successfully struck a
balance between the competing interests of the Parties, granting to Slovenia the
closest thing to a territorial contact with the high seas that could legitimately be
achieved, and substantially preserving Croatia’s sovereignty over the Junction Area.
Therefore, it seems inappropriate to equate the regime established in the Junction
Area with the EEZ legal regime, which the Tribunal referred to only to the extent
necessary to define more clearly the exercise of the freedoms of communication in
with respect to the sovereign rights of Croatia to explore, exploit, conserve and manage the living
resources in the in the Area (Art. 73 UNCLOS). While the Tribunal seems to impose a general
prohibition (paras 1130–1131), this is aimed at guaranteeing the freedoms of communication that
constitute the essence of the Junction Area regime, and concerns (only?) vessels and aircraft “exercising the freedom of communication” (para. 1129). Hence, it would appear that Croatia would
retain its enforcement powers pursuant to Art. 73 over ships passing through the Area, but not
going to (or coming from) Slovenia, as well as over ships which, while going to (or coming from)
Slovenia, engage in fishing activities, which are expressly excluded from the set of freedoms which
characterize the regime of the Area. For a similar but more nuanced analysis, see Ferri (2018),
pp. 653–655.
189 Croatia/Slovenia, para. 1131.
190 Ibidem, para. 1127.
191 Ibidem, para. 1135.
A. Insolia
Needless to say, Croatia’s power to enforce its laws and regulations remains
unaltered in all maritime areas outside the Junction Area, including with regard to
“the right to take enforcement action in respect of violations of Croatian law that
had been committed in the Junction Area”.
189
Finally, Croatia retains the right to
intervene, upon request, to provide assistance to ships in the Junction Area and also,
exceptionally, the right to exercise in the area the powers recognized by Article 221
UNCLOS in case of maritime casualties posing a pollution threat. In light of the
regime described above, the rights retained by Croatia in the Junction Area cannot
be said to amount merely to formal or de jure sovereignty.
In the same way, as regards the freedoms of communication in the Junction Area,
they cannot be said to have unlimited scope, nor can it be said that Croatia has no
role whatsoever in their exercise. Indeed, as stated by the Tribunal, those freedoms
may not be subject to any coastal State controls or requirements “other than those
permitted under the legal regime of the EEZ established by UNCLOS”.
190
In addition, the regime established by the Final Award is without prejudice to the obligations deriving from EU law, from the IMO Traffic Separation Scheme, and from the
international standards applicable to air navigation. More generally, it is considered
by the Tribunal to be consistent with the basic principles embodied in UNCLOS, as
provided by Art. 311(3). Finally, the Tribunal, recalling the “express obligations”
imposed on all States by Articles 123, 300, and 301 UNCLOS, established cooperation obligations and encouraged “the Parties to cooperate fully with each other, and
with other States, in the exercise of their rights and the performance of their obligations in the northern Adriatic”.
191
In conclusion, it seems that Croatia’s sovereignty over the Junction Area cannot
be qualified as merely nominal. In addressing what was certainly the most complex
issue among those submitted to it, the Tribunal seems to have successfully struck a
balance between the competing interests of the Parties, granting to Slovenia the
closest thing to a territorial contact with the high seas that could legitimately be
achieved, and substantially preserving Croatia’s sovereignty over the Junction Area.
Therefore, it seems inappropriate to equate the regime established in the Junction
Area with the EEZ legal regime, which the Tribunal referred to only to the extent
necessary to define more clearly the exercise of the freedoms of communication in
with respect to the sovereign rights of Croatia to explore, exploit, conserve and manage the living
resources in the in the Area (Art. 73 UNCLOS). While the Tribunal seems to impose a general
prohibition (paras 1130–1131), this is aimed at guaranteeing the freedoms of communication that
constitute the essence of the Junction Area regime, and concerns (only?) vessels and aircraft “exercising the freedom of communication” (para. 1129). Hence, it would appear that Croatia would
retain its enforcement powers pursuant to Art. 73 over ships passing through the Area, but not
going to (or coming from) Slovenia, as well as over ships which, while going to (or coming from)
Slovenia, engage in fishing activities, which are expressly excluded from the set of freedoms which
characterize the regime of the Area. For a similar but more nuanced analysis, see Ferri (2018),
pp. 653–655.
189 Croatia/Slovenia, para. 1131.
190 Ibidem, para. 1127.
191 Ibidem, para. 1135.
A. Insolia