Piran Bay – Croatia, the War, and the Future

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

Rotten Foundations Rocking Court Ruling On Slovenia-Croatia Border Dispute

EU Arbitration Tribunal – Hague
Photo: Famagusta Gazette

Global arbitration court in The Hague June 29th handed Slovenia victory in a long-standing maritime dispute with Croatia, granting it direct access to worldwide waters in the Adriatic Sea. In their reportedly convoluted 300-page judgement, judges ruled Slovenia should have “a junction area” with global waters, allowing “freedom of communication” to all ships, civilian and military, seeking access to Slovenia. The tribunal had awarded three quarters of the Bay of Piran to Slovenia, evidently ignoring the fact that Croatia had in 2015 withdrawn participation in the border dispute arbitration after a phone-tapping scandal which brought to light improper dealings evidencing disturbing lack of impartiality in the case by a Slovenian judge sitting on the court’s panel of judges. The Croatian newspaper “Vecernji” leaked tapped phone calls where Jernej Sekolec, the Slovenian representative to the EU-backed arbitration panel, spoke with Simona Drenik, Ljubljana’s intermediary dealing with the case, about tactics that would secure a favourable ruling for Slovenia. In 2009, the two former Yugoslav states agreed to a deal wherein the five-member tribunal would reach a binding decision on five square miles (13 square kilometres) of mostly uninhabited land and coastline, including Piran Bay on the northern Adriatic Sea. Both countries were asked to propose one member for the panel and a key element of impartiality was that no member discusses the tribunal’s work with their government. Slovenia breached the impartiality agreement and rule and still gets to win the case!

Who said justice was blind? Well, in this case it’s blindness pertains to ignoring corruptness within.

But then, who would expect anything else with Carl Bildt (notorious for his evident indifference to ethnic cleansing of Croats and Bosniacs during the 1990’s war of Serb-aggression in Bosnia and Herzegovina and the co-chair of the 1995 Dayton Agreement that fortified the division of Bosnia and Herzegovina into a relentless ethnic battleground even during peace time), co-chair of the European Council on Foreign Relations, saying the international community “is likely to overwhelmingly endorse [the] arbitration conclusion on [the] Croat-Slovene dispute”.

In Ljubljana, Slovenian Prime Minister Miro Cerar Friday 30 June 2017 hailed the ruling as a “historic moment for Slovenia”, saying the judgement “is definitive and must be applied on both countries, Slovenia and Croatia”.

Ahead of the ruling, Croatian authorities and opposition said they would consider the court’s decision to be “a dead letter on paper” and that another way to solve the dispute should be sought, “in a peaceful and sober manner”.

Croatia insists the matter is not resolved and wants to continue bilateral talks. “Croatia’s view is known,” said Andrej Plenkovic, Croatian prime minister, before the ruling. “We quit the arbitration, since for us it is irrevocably contaminated and compromised.”

“Today’s arbitration decision for Croatia is a decision which is not obliging us in any way…. nor do we intend to implement its content,” Plenkovic told reporters after the arbitration court’s decision was made public.

Photo: Wikimedia

“With respect to the arbitral award rendered today in the arbitration process that Croatia withdrew from because of unlawful acts of Slovenia, the Government of the Republic of Croatia states the following:

1. Today’s arbitral award does not in any way bind Croatia and Croatia shall not implement it.

2. Croatia has made its position towards this arbitration unequivocally clear already in July 2015, immediately after the scandalous and unlawful actions of Slovenia’s Agent in the case and a Member of the Arbitral Tribunal were publicly disclosed. Their actions remain without precedent in international jurisprudence. They constitute systematic and grave violation of the most fundamental principles in international dispute settlement, most notably principles of party equality and independence and impartiality. Such acts of Slovenia represent a material breach of the Arbitration Agreement to Croatia’s detriment. The fact that the Member of the Arbitral Tribunal, appointed by Slovenia, and Slovenia’s Agent in the case resigned immediately are indicative of the gravity of unlawful actions. This was confirmed by the prompt resignation from the position of the Member of the Arbitral Tribunal of the then President of the International Court of Justice who was appointed as replacement by Slovenia.

3. To protect its rights, pursuant to the Vienna Convention on the Law of Treaties and on the basis of a unanimous decision of the Croatian Parliament of 29 July 2015, Croatia initiated the procedure of termination of the Arbitration Agreement, ceased to apply it and withdrew from the arbitration.

4. Croatia particularly emphasizes that, in protection of principles and values of international law and peaceful settlement of disputes which it has always upheld and promoted, it does not accept the results of this obviously compromised arbitration process.

5. Since this arbitration failed in bringing about a final resolution of the open border issue, Croatia now repeats its invitation to Slovenia to launch dialogue, convinced that two neighboring states, NATO and EU members, must have enough motive and willingness to resolve this issue by mutual agreement.

6. Croatia expects that Slovenia will not take any unilateral acts that would in any way change the current state of affairs along the common state border.

7. Croatia invites all other states and international organizations to continue treating this open border issue as a purely bilateral matter which concerns only Croatia and Slovenia.”

Obviously, the dispute has highlighted a legacy of hasty partitions of few territorial patches of disputed borders, while keeping the bulk of internationally recognized borders, left behind by the disintegration of former Yugoslavia and the Serb-led war of aggression of the 1990s, during which the sudden dissolution of Yugoslavia, propelled by the plight to secede from communist Yugoslavia and establish democracy, spiraled into bloody and destructive conflict where Croatia found itself forced to defend itself and its people’s self-preservation. Ina Vukic