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A Borderline Dispute Between Slovenia and Croatia – Slovenian Lawsuit and a New Political Landscape Valentino Petrović

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A Borderline Dispute Between Slovenia and Croatia – Slovenian Lawsuit and a New Political Landscape Valentino Petrović ISSN: 2560-1601 Vol. 26, No. 4 (HR) Febr 2020 Croatia external relations briefing: A Borderline Dispute Between Slovenia and Croatia – Slovenian Lawsuit and a New Political Landscape Valentino Petrović 1052 Budapest Petőfi Sándor utca 11. +36 1 5858 690 Kiadó: Kína-KKE Intézet Nonprofit Kft. [email protected] Szerkesztésért felelős személy: CHen Xin Kiadásért felelős személy: Huang Ping china-cee.eu 2017/01 A Borderline Dispute Between Slovenia and Croatia – Slovenian Lawsuit and a New Political Landscape Summary This paper deals with relations between Slovenia and Croatia from the perspective of arbitrary award regarding borderline dispute that Croatia refuses to recognize. When the process of arbitration was contaminated by unethical behavior from Slovenian representatives, Croatia has decided to withdraw from further negotiations and called for bilateral solution. Slovenia took a lawsuit against Croatia before the European Court of Justice, but the Court has declared that it lacks jurisdiction to take part in the case. With the fall of Slovenian government and Zoran Milanović’s victory at the presidential elections in Croatia, it seems that the political landscape is changing in terms of actors included in decision making, but the possibility for a solution that would satisfy both sides is still in the clouds. Introduction A long lasting dispute between Slovenia and Croatia over their maritime border gained a new chapter on January 31st, 2020 when European Court of Justice declared it has no jurisdiction to rule over the case which saw Slovenian side accusing Croatia of violating European law by avoiding to implement a border arbitration decision from June, 2017. In its decision, the Court called on both sides to follow the principles of international law and to come up with a legal solution in order to resolve the geopolitical feud that lasts from November 2009 when Croatian Prime Minister Jadranka Kosor and her Slovenian counterpart Borut Pahor signed an arbitration agreement which was then-needed for the purpose of de-blocking the negotiations for Croatian accession to the European Union. Today, more than ten years later, Croatian Prime Minister Andrej Plenković is victorious and calls on “Slovenia for dialogue and bilateral negotiations”, but Slovenia keeps insisting on decisions from 2017 with their Minister of Foreign Affairs Miro Cerar stating that arbitration award has to be implemented even though the European Court of Justice has proclaimed and underlined its lack of jurisdiction on this issue. Nevertheless, political context needs to be taken into account, such as Zoran Milanović’s win on the Croatian presidential elections and the resignation of Slovenian government a few 1 days before the Court of Justice’s decision. But before that, we shall discuss the borderline dispute and what has been done in previous years. The History of Arbitration The arbitration decision originates in 2008 when Slovenia blocked Croatia’s accession talks to join the European Union by using its EU membership as leverage and a means of achieving the long-wanted goal of having the territorial connection with open sea. As a country wishing to join the European Union as soon as possible, taking into account the long negotiation period of fulfilling all the required criteria, Croatia was ready to take the necessary step and to overcome the differences with Slovenia transferring the decision on the Permanent Court of Arbitration in Hague. After Croatia formally joined the EU, on July 1st 2013, the Court of Arbitration began to discuss the case over the coastal waters in northern Adriatic. But in the mid-2015 it was discovered that the whole process has been contaminated due to involvement of Simona Drenik, a chief of Slovenian arbitrary team, and Jernej Sekolec, a Slovenian judge in the aforementioned case, in the illegal lobbying with other members of the Court at the expense of Croatia. When a telephone conversation between Drenik and Sekolec leaked, Croatia had decided to withdraw from the arbitration process and refuse to recognize any decision that would have been brought by the Court. On the other end of the spectrum, Slovenia argued that the Drenik-Sekolec talks took place without any knowledge of Slovenian Prime Minister, Ministry of Foreign Affairs or Slovenian intelligence agencies, therefore, the process was not contaminated, as was claimed by Croatia. In 2016, after an investigation of potential involvement in the arbitration scandal, the Court reached a decision that the process was compromised by Slovenia, but not to the extent of denying or undermining any resolution made by the Court. This was seen as a great victory for Slovenia who managed to push forward their agenda with arbitration on borderline dispute, even though the Court itself declared that the process has been unfair to Croatia. In line with its initial decision and after the disclosure of unethical behavior form Slovenian representatives, Croatian government continued to ignore any attempt from Slovenian side and the Court of Arbitration to proceed with arbitration process. On June 29th 2017 the Court of Arbitration finally reached a verdict and the result was quite ambiguous when it comes to initial demands, most of all, from Slovenian government taking into account Croatian decision to withdraw no matter what the Court will determine at the end. As it was already mentioned, Slovenia hoped for gaining an open access to international 2 waters in the Adriatic Sea through the Bay of Piran. Consequently, Slovenia received the ¾ of the Bay at the expense of Croatia but when the demarcation line is drawn there is still a corridor that separates Slovenia from having a direct access to international waters. That corridor is still Croatian territory but of limited sovereignty. In other words, Slovenian ships can use this territory for a trading purpose, but for other purposes they are required to have an approval from Croatia. Slovenia wanted the whole Bay of Piran and, additionally, hoped for a corridor to have a full control over their maritime border. Croatian government once again has spoken firmly against a decision of any kind and did not send an official representative to attend the verdict announcement. Other members of the European Union, such as Germany and France, highlighted the importance of keeping a good neighboring relations, especially at the Western Balkan region, but they did so in a different way. Germany has called on the implementation of verdict and underlined the Court of Arbitration as a “valuable instrument of international law”, while France has kept things more diplomatically hoping for a solution in a “spirit of reconciliation and dialogue”. European Union, however, issued a statement and welcomed the procedure and verdict, claiming that both sides have to respect and implement the final award. Franz Timmermans, then Vice-President of the European Commission, endorsed this opinion but distanced the Commission from taking any sides by claiming that it has no legislative mechanisms to order the implementation of arbitration decision, since it is a bilateral issue. Slovenian lawsuit against Croatia The Slovenian-Croatian relations gained a new momentum when the former decided to file a lawsuit against the latter before the European Court of Justice due to Croatia’s refusal to implement the arbitration award, based on Article 259 of the Lisbon Treaty, accusing Croatia of breaching the EU law. Moreover, Slovenia claimed that Croatia has violated article 2 and 4 of the Treaty of the Functioning of the European Union which concern respect for rule of law and loyal cooperation between member states. Croatia claimed that the whole lawsuit is based on a wrong interpretation of the borderline issue. According to Croatia, the European Court of Justice cannot decide in this case because it is a matter of international law and international regulation of border demarcation, not the European law. That interpretation showed to be viable when in late 2019, Priit Pikamae, an independent lawyer of the European Court of Justice, handed his opinion that the Court of Justice has no jurisdiction to decide whether Croatia is breaching the European law. His explanation was in line with the Croatian interpretation of the issue, stating that border regulation is a matter of international, not European law. The Court of Justice finalized the case in early 2020 following the same arguments that were earlier provided 3 by Pikamae. Of course, in light of maintaining good relations between its member states, especially those in the Western Balkan region, the Court strongly encouraged both sides to discuss and resolve their differences. Political landscape is changing, but the issues remain Stepping aside of the borderline issue, the relations between Slovenia and Croatia could have a clean slate in terms of internal political context and upheavals in both countries. During the presidential race in Croatia, Zoran Milanović, a candidate of left-wing coalition, emphasized the importance of improving the bilateral relations with Slovenia and after he was elected as a new president, he continued with the same rhetoric claiming that Slovenia is Croatia’s closest friend and ally. Furthermore, he announced that his first foreign visit after he takes an oath, thus formally being recognized as a new president, could be Ljubljana. His statements are actually very coherent taking into account his public appearance since he announced his candidacy in the mid-2019. Unusual to his former self and previous public perception of him as arrogant and impulsive, Milanović is today offering his hand to anyone who is willing to take it as a sign of good will and cooperation, and it seems that he will continue to do so in the upcoming years as president. Nevertheless, it must not be neglected that Kolinda Grabar Kitarović picked Slovenia as her last visit as a Croatian president. In February, she met with her Slovenian counterpart Borut Pahor and called on dialogue and cooperation to resolve the borderline issue, but again on the grounds of bilateral discussion.
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