Slovenia sees EU not as a community of common ideals and interests but merely as an instrument to achieve its interests, no matter how unreasonable they are.
Tactically sound, strategically a disaster
Since the beginning of the Slovenian-Croatian border dispute, Croatia has held a principled position that the delimitation between countries is a legal issue. This is the direct result of the decisions of the Badinter's Commission that were the very basis for the international recognition of both countries. By applying the principle of uti possidetis iuris, the Commission in the Opinion No. 3 recognized the internal Yugoslav borders as the international ones. Consequently, borders need not to be drawn from the scratch by political devices (i.e., peace conference), but only identified using legal means.
It was expected that the issue shall be resolved quickly and painlessly; these two nations had no serious conflict in the past, and the existing border faithfully follows 150-years old ethnic border. However, despite there were several attempts to solve the problem through the direct negotiations, all of these failed. It is customary for parties that failed to resolve their disputes bilaterally to address International court of Justice (ICJ), the principal judicial organ of United Nations. Furthermore, in international affairs it is a recommended method for resolving all bilateral disputes, actively advocated by EU and mentioned several times in Croatian accession documents.
Nevertheless, all attempts for toward ICJ arbitration were obstructed by Slovenia. Slovenia strongly resists any solution based on international law and conventions, in particular based on UN Convention on the Law of the Sea (UNCLOS). It insists on the political mediation or possibly applying of the principle ex aequo et bono. Currently is the principle ex aequo et bono speaking from the legal perspective contradictio in adiecto, since it means that mediators do not have to follow provisions of the law. The principle - which must be approved by both parties in the dispute - was initally a part of the 1922 Statute of Permanent Court of International Justice, in times when international laws were still not well codified. As international conventions were gradually formed, it became obsolete and has never been applied in the history of ICJ.
We have comprehensively studied legal circumstances of the border dispute in our previous post. Obviously, the reason for such stubborn Slovenian attitude lays the fact that international laws simply cannot provide Slovenia its conditio sine qua non - the territorial contact to the international waters. Therefore Slovenian policy tries to argue that international law is unfair or even harmful to Slovenian interests. However, it is not so. The UNCLOS is just as any other law simply a wise compromise between different interests. In particular, UNCLOS protects the territorial right of the coastal countries to the sea in the extension of their land, but on the other hand it also protects the right of the trade and communications through foreign territorial waters. The former provision protects interests of countries with a long coast, while the latter provision protects interest of countries with a short coast and/or an unfavorable geographic position.
However, the international law above all protects interests of small and deprived countries against large and dominant countries. Namely, if the result of the arbitration is limited by the codified rules, this prevents natural arbiter's tendency to decide in favor of the stronger party. The acts of Slovenia using the member position of EU and refusing any legal solution in order to achieve its petty interests might be tactically sound. However, this acts inevitably damage prestige of the international Law, which in the end might be disastrous exactly for a small country like Slovenia.
EU as an instrument of the extortion
European commissioner for enlargement Olli Rehn's facilitation to unblock Croatian accession negotiations was from the start condemned to the failure due to irrational Slovenian demands. Moreover, his facilitation also broke the rule of thumb that EU does not intervene in bilateral issues and in particular in border issues. And last but not the least, it forced Croatia to abandon its principled position: the solution of the border dispute at ICJ. In the moment Croatia unwillingly accepted Rehn's facilitation, it beforehand accepted to make a compromise about the issue that there should be no compromise about.
However, it must be admitted that within the new self-imposed frame, Rehn's final compromise proposal from April 22 represents a gentlemen's compromise: It provides a legal frame of arbitration in sense of the required international law and the composition of arbitration body. Thus the agreement was for Croatia just on the very edge of the acceptable, which Croatia honored by the acceptance. On the other hand, it makes a few concessions to Slovenian demands, namely fast arbitration verdict, applying the principle of equity and mentioning Slovenian contact with international waters. Despite that Slovenia threathens to reject the proposal if several amedments in its favor are not adopted. The Slovenian dissatisfaction could be best described through words of the former Slovenian foreign affair minister and main architect of Slovenian diplomacy Dimitrij Rupel. On May 7, in the most prominent Slovenian newspaper "Delo" he wrote that "proposals of European commissioner Olli Rehn should in fact be written in Slovenia, while Rehn should only give them authority of EU".
Among Slovenian amendments is a well known request to use the prindiple ex aequo et bono. However, even more interesting amendment is that arbitration should find the arragement for the Slovenian territorial contact to international waters. Since the neccessity and the possibility of the territorial contact is obviously disputed and moreover presents the most heated objective of the arbitration, Slovenia in fact wants that the arbitration agreement prejudices the final verdict!
There is another articulate and sinister Slovenian amendments: if both sides agree, the arbitration process could be cancelled before the final verdict. This clearly shows that Slovenia would try to extort cancellation in case the process would not evolve in the direction it desires. Equally articulate was the statement that leader of Slovenian opposition Janez Jansa gave in the most prominent Slovenian talk show "Trenja" sitting next to the Slovenian foreign affair minister Samuel Zbogar. He said that one of few positive points about the Rehn's final compromise proposal is that arbitration verdict is known before ratification of the Croatian accession agreement. This way, he argued, if the arbitration verdict is unfavorable, Slovenia will decline to ratify the accession agreement!
Slovenia thus looks not for the process that would try to find a fair solution for the border issue but rather looks for the process that would grant practically all Slovenian pretensions. In a process, Slovenia sees EU not as a community of common ideals and interests but merely as an instrument to achieve its interests, no matter how unreasonable they are.
- Dimitrij Rupel: Evropska komisija naj deluje v interesu EU, Delo, May 7, 2009
- Kapitulacija Slovenije, Trenja, POP TV (23rd minute), May 7, 2009