A sceptical view of the Slovenia-Croatia arbitration agreement

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Despite long-standing good neighbourly relations between Croatia and Slovenia, the border dispute between the two countries remains unresolved. The main issues are how much access Slovenia will be granted to the coastline and the high seas, and whether to settle the dispute on the basis of international law or historical reasoning, writes Žiga Turk, secretary-general of the Reflection Group for the future of Europe, in a May blog post.

This commentary was authored by Žiga Turk, a Slovenian national, professor, ex-minister and secretary-general of the Reflection Group on the Future of Europe.

It appeared as a blog post on Blogactiv.eu on 27 May.

''Since independence, the relations between Slovenia and Croatia were essentially very good. We are one of each others' main trade partners, Slovenes are welcome at the Croatian coast and Croats on Slovenian ski slopes. A few issues remain unresolved after the breakup of Yugoslavia that kept the politicians and journalists busy, but did not have much impact on trade, tourism or friendly personal relationships. One of the major issues was the border. There are a few disputed details on land and a larger chunk of disputed sea.

Maritime border issue

For the last twenty years the Slovenian position on this was fairly clear, regardless of the political parties in power. Slovenian red lines were the Slovenian contact with the High Sea and the jurisdiction over most of the Gulf of Piran, as it was under Slovenian control at the time of proclaiming independence in 1991. The positions for the negotiations with Croatia traditionally had bi-partisan support in Slovenia.

The two countries came closest to reaching an agreement in 2001, with the Drnovšek-Racan Agreement that the two prime ministers agreed upon in 2001. This agreement was (1) compatible with Slovenian red lines and (2) enjoyed bi-partisan support in Slovenia. Later Croatia withdrew support from it. In Slovenia this agreement remained to be considered as the minimum of what would be acceptable.

The Pahor-Kosor agreement

In 2009 Prime Ministers Pahor and Kosor reached an agreement to submit the issue to an Arbitral Tribunal to deliver a final solution that would have to be automatically accepted by both sides. In Croatia, the agreement was given almost unanimous support in the parliament, while in Slovenia the agreement has been criticised by the opposition parties (Janez Janša's SDS being the strongest), but not limited to them.

Voiced opponents of the agreement cross the left-right political divisions and include fierce opponents of opposition leader Janez Janša, former and current members of coalition parties, experts on maritime law, as well as the founding fathers of an independent Slovenia like France Bucar or respected intellectuals like Boris Pahor.

Disagreements

The opponents of the Agreement believe that (1) the agreement is not defined in a way that would enable the Tribunal to reach a decision within the Slovenian red lines and (2) that there has been no bi-partisan support for such negotiation platform with Croatia. While (1) can be a matter of debate, (2) is a fact.

Unlike the Croatian government, the Slovenian government did not submit the Agreement to a 2/3 majority vote in the parliament (where it would likely fail) but decided, with the agreement of all parties, to call a national referendum. It will take place on 6 June and Slovenes will decide whether to go forward with the Agreement or not.

Campaign issues

The referendum campaign in Slovenia is generally on two issues:

  1. Can the agreement result in an outcome that will include territorial contact of Slovenia to the high seas and in the control of most of the Bay of Piran?
  2. Is Slovenia right to claim this in the first place?

Supporter position on outcomes:

Yes, because the Agreement says that a task of the Tribunal is to determine 'Slovenia's junction to the High Sea' …applying more than just the international law. To support this impression they translated the term 'junction' as 'contact' in the Slovenian translation of the Agreement.

Opponents' position on (1):

No, because as also per Agreement the borders on land and sea will be determined exclusively by international law and this will result in only half of the Bay of Piran. The border at sea will end in Italian waters, making territorial contact with the high seas impossible.

They also claim that the provision of determining the 'junction' will not very likely result in territorial contact of Slovenian waters with international waters. If this was the intent, the provision would use the term 'territorial contact' and not 'junction'.

The fear was reinforced by the statement in the very law with which Croatia adopted the Agreement. In this law it claimed that 'Nothing in the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia shall be understood as Croatia’s consent to Slovenia’s claim to its territorial contact with the high seas'.

Indeed, unilateral statements were not to be taken into account by the Tribunal: however Croatia, in this very same law, claimed that the statement was made in agreement with Slovenia and that Slovenia and Croatia, together, informed the EU presidency and the US about this.

Slovenia did not formally deny or protest at the time, and neither did the US or Sweden. Today the US, Sweden and Slovenia claim that the statement in the Croatian law is untrue. At best, then, Croatia adopted the agreement on false pretenses and it will be interesting to see how Croatian parliamentarians will react to this act of bad faith.

Supporters' position on Slovenia's 'rights'

Between the lines, through the experts and opinion makers, the case is being built that Slovenia's claims are unrealistic. That one should get it over with. Indeed a lot of Slovenians are fed up with the matter. A large part of the international community has also been convinced that Slovenia cannot claim more than a line through the middle of the Gulf of Piran, as per international law.

Opponents' position on Slovenia's 'rights'

They claim that Slovenia has good historic reasons to expect Croatia not to make problems with a very tiny fraction of their long coastline.

  • The land border between the Yugoslav republics of Croatia and Slovenia, drawn in the 1950s, did not follow ethnic lines of division. In that case the border would be on the River Mirna, giving Slovenia both coasts of Gulf of Piran and enough coastline for the 12 mile strip to have contact with high seas. Slovenia is not disputing this border though. The last thing we need is another Bosnia-type mess.
  • The land border between Yugoslavia and Italy after the Second World War was drawn in a way in which about the same number of Yugoslavs remained in Italy as Italians remained in Yugoslavia. However, it was only Slovenians that were left in Italy, and it was mostly Croatia that gained territory and coastline. In fact the part of the Adriatic that was purely inhabited by the Slovenes (between Trieste and Monfalcone) remained in Italy. To make matters worse, the communists 'encouraged' Italians to leave their homes in Yugoslavia and move to Italy. This did not help in how Italy was treating the Slovenian minority there. It was very much unlike the Germans in South Tirol.

The opponents of the referendum rightly claim that these facts are not properly reflected in the proposed Agreement and will have zero impact on how the maritime border between Slovenia and Croatia are drawn. They also believe that it would be a proof of 'good neighbourly relations' if Croatia would acknowledge this.''

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