Croatia-Slovenia Border Malaise

Andrej Plenkovic, Prime Minister of Croatia (L)
Miro Cerar, Prime Ministe of Slovenia (R)

Why should life be simple when you got politicians who have mastered the art of serving dog’s breakfasts? Accepting state territorial borders was never going to be a simple matter, but, hey, does it need to go haywire and be prolonged into agony against the backdrop of severe court and contractual breaches and whitewashing of the same? Of course not, but tell that to the politicians of the European Union who meddle in all and sundry, including national borders of member countries that are supposed to be sovereign in their own right. When new states signed up to join the European Union, they undertook to recognise without any qualms the territorial integrity of every other member state and to acknowledge the legitimacy and inviolability of existing borders. Croatia, despite its dispute with Slovenia on sections of border entered the EU with best intentions of resolving the dispute in a fair and just and impartial manner.

EU member states have a great deal of historical baggage when it comes to territory but, in spite of that, they entered the EU with defined and sovereign borders sealed with international recognition seal and fact. It’s become quite clear that while territorial borders between former states of Yugoslavia were not as set as permanent and inviolable as the international community was led to believe.

Slovenia has held Croatia hostage for years now over the bitter 26-year-old territorial dispute involving some 12 square kilometres of maritime territory in Piran bay, northern Adriatic Sea. Also disputed is a 670 kilometre stretch of land along the Slovene-Croatian border that forms the frontier of European Union’s Schengen area.

The deadlock in solving the border issue appeared to have been broken when the EU persuaded both Slovenia and Croatia to submit themselves to a binding arbitration course. This was when in 2013 Croatia was admitted into EU membership. In 2015, when tampering by the Slovenian side with the independence of the arbitration was discovered Croatia abandoned the arbitration process.

The ad-hoc border arbitration court, set up to smooth Croatia’s path to EU entry in 2013 more than 20 years after the break up of Yugoslavia, had three international judges, one from Croatia and one from Slovenia and is meant to be independent of national governments. In 2015 the discovery and publishing of excerpts from a leaked tape in which Slovenian judge Jernej Sekolec discussed the case, the probable outcomes and strategy with Simona Drenik, who represented Slovenia’s Foreign Ministry before the court prompted the Croatian government to exit from the arbitration process claiming, rightfully as the leaked tapes demonstrated, that the process itself was biased against Croatia from the start and Slovenia had breached the terms of the agreement for arbitration between the two countries signed in Stockholm in 2009.

On July 27, 2015, the Prime Minister of Croatia announced Croatia’s withdrawal from the arbitration and suspension of the arbitration agreement. However, Slovenia, determined to preserve the proceedings, nominated a new arbitrator on July 28, 2015. According to the Slovenian media at the time, the newly nominated arbitrator was not a Slovenian national, but a French lawyer Ronny Abraham, President of the International Court of Justice. Putting aside the political sensitivity of the situation, legal analysis of this case also confirmed clear violation of the duty of confidentiality, or more specifically – the violation of secrecy of tribunal’s deliberations. This duty is directly connected with preservation of the tribunal’s independence and impartiality. The stakes, which were jeopardised by these violations, are set really high. The most important one was, of course, the legitimacy and credibility of the arbitration proceedings at issue.

But, the arbitration process continued without Croatia! Addressing severe and intentional breaches of arbitrator’s duty (Slovenian arbitrator) and preserving the integrity of arbitration proceedings when one of the arbitrators turned out to be actually partial without any doubt, went nowhere that acknowledged the righteousness of Croatia’s grievances regarding the breaches. There’s EU pressure to the hilt! Evidently, politics above facts were afoot here. In June 2016 the arbitration court ruled in favour of Slovenia and Croatia continues to accept the verdict of such a truncated, lopsided and biased court process.

While the court awarded some land claims to Croatia, it has given the bulk of the bay to Slovenia and, most importantly, a 16-kilometre sea corridor through Croatia’s share to give the Slovenes direct, unfettered access to the rest of the Mediterranean. The Permanent Court of Arbitration in The Hague gave both states six months to implement its ruling, a deadline which ran out, with the ruling unimplemented, 29 December 2017.

And Slovenia went gung-ho to implement the court’s ruling, expecting Croatia to do the same.

Croatia has, as it appears, no plans or intention to implement the ruling of the arbitration court, which, to its conclusion permitted serious breaches of agreement signed between the two countries. Croatia’s Prime Minister Andrej Plenkovic warned against “unilateral acts that could cause incidents on the borders”. Croatia has proposed new talks but the Slovenes are adamant they will not talk, and that the court ruling must stand.

Which leaves the EU in precisely the mess its founding fathers were determined to avoid. At this time when the union would like to demonstrate its “peace-engineering” credentials the hot political potato is being thrown to and fro. The necessity to sort out territorial borders disputes prior to entering into EU is perhaps well demonstrated in this case but I am so pleased to see Croatia hold its ground in this case. State borders should always be a matter of fact and not of political ball games that delve into interfering with court processes.

The lessons learning from Slovenia’s attitudes in this matter could serve Croatia well in blocking Serbia’s accession to EU membership. There is a long-standing border dispute between Croatia and Serbia along some 320-kilometre stretch of land near the Danube River. Croatia has suffered much historically regarding its rightful land and borders and should persist in digging its heels in to retain what is, what was its own. EU’s preoccupation with the politics of managing flows of migrants from the south and of providing a political and economic bulwark against the growing influence from both Russia and Turkey should remain secondary to holding its feet firmly on its rightful lands.

EU’s ambitious Balkan project would seem to be suffering setbacks with the Piran bay quarrel between Croatia and Slovenia. Croatia has never really considered itself as a Balkan state and its culture and social milieus certainly provide solid ground that justifies such a predisposition. Ina Vukic

Comments

  1. Well, this article is a somewhat slanted interpretation of the situation, missing a lot of facts.

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  2. In reading several articles about this situation, authors usually leave out the reason why Croatia exited the arbitration process – why? You would think that providing the reason for leaving arbitration would be an important part of this story that would provide context and contribute to better understanding. Maybe the various authors don’t want better understanding, but instead want to fuel prejudice and bias. In any case, as you accurately explained, Croatia left the arbitration process because Slovenia had cheated in process by “influencing” the judges outside of the arbitration process and was caught ‘red-handed’. Croatia dutifully withdrew from the process. Shame on the judges and the court for not dismissing the proceedings, firing the judges and starting over. That would have sent a very strong message to the world that the court is a fair and honest institution that will not tolerate corruption and rule breaking. But it didn’t. I wonder if any of EU countries, or for that matter any self-respecting country or person would accept the ruling of a contaminated judicial process where the rules were broken and one party cheated? Especially on such an important issue as state boundaries and sovereignty. I think not. Just a bunch of hypocrites…I can’t believe that Juncker insists that Croatia accept the ruling even though he admits it was flawed and compromised. So much for justice…politics and power continue to rule…Croatia better learn the rules of the game soon.

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    • WE wait and see whether Croatia will learn any lessons from this to strengthen its position, Sunman. On the whole, if the world was such a fair and just place then all would accentuate the reason why Croatia left arbitration but the world isn’t perfect as we know, Sunman, many turn a blind eye to corruption, deceit, trickery, cover-ups … for their own political interests.

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  3. What makes any land Croatia’s rightful land?
    The only lesson learned here is that there should have been more clear procedures for substituting the judge. Walking away from the dispute was an indecent move and should technically nullify Croatia ‘s EU membership. Luckily that wont happen, but it is up to croatia to set things straight now.

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    • Many, many people would say, Paul – Croatia should be the luckiest country if its EU membership were to be nullified, remember only 29% voted for membership as the law permits such pathetic turnouts. It is not a matter of process of substituting judges, it’s a matter of revealed severe breaches in agreements etc that have potential of influencing decisions in a biased way. So please don’t try and tell us that its not important to have stopped the proceedings and start a process to assess as to the possible interference with justice of Slovenia’s breaches and underhanded under-the-table dealings to sway decisions its way …

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    • rotterdam says:

      Walking away from dispute when you discover deceit and serious breaches in procedure “was an indecent move” you say Paul! Wow, I’d hate to come across your kind of justice in corridors of justice. You would have preferred then if Croatia shut its eyes on the poisoning of the process by Slovenia’s actions and just stayed there! You obviously agree with the fact that arbitration continued without Croatia’s presence once it discovered the breaches and moves to sway judgment Slovenia’s way…Pathetic! But one way for Slovenia to get rid of Croatia from the proceedings also…the bias reeks with stench in this arbitration case and the stench is not coming from Croatia

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    • Interesting position. So, as an analogy, if you got caught cheating on an exam, your solution would be to award your grade regardless of the cheating? Not sure I understand your logic.

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      • Exactly Sunman, your analogy is quite to the point. One would think that the right thing to do is to make the cheater resit the exam but not here…

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