Thursday, 14 May 2009

Gentlemen's compromise?


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.


Sunday, 1 March 2009

Croatia - Slovenia: the future of EU at stake?


Slovenian view of the border dispute clashes with all international legislation that regulates relations among sovereign countries: it goes directly against UN charter, and against all premises on which the very idea of the EU is based - that political endeavors, national and international, should be subject to democratic decisions and the rule of law.

Hypocrisy behind the Slovenian blockade

In a wake of global economic crisis, the recent problems of Croatian accession to EU does not drag a lot of attention. However, real problems behind the Slovenian blockade of 11 negotiation chapters (amounting to almost the third of all chapters) may pose a serious danger to the future of European Union if not even its very existence.

From the beginning of the crisis it was rather unclear what is the reason behind Slovenian blockade. As pointed by Slovenian officials, the Croatian accession documents included maps that might prejudice the delimitation of the still undetermined Slovenian-Croatian border. It soon became clear that the problem are not the accession documents but Croatian laws that are cited within those accession documents. French presidency reacted swiftly and proposed a document in which Croatia and EU would guarantee that adoption of any Croatian accession document would not prejudice the border. However, such solution was flatly refused by Slovenian side.

Even though Slovenian reservations are understandable, they are actually hypocritical. Namely, Slovenia itself adopted several laws that prejudice Slovenian-Croatian border. A typical example represents the map issued by the Slovenian agency of environment, which not only proves that Slovenian official documents prejudice sea border, but also that Slovenian territorial claims are absurd and against basic principles of international conventions (see Figure 1). The Slovenian side insists that all waters of Bay of Piran belong to Republic of Slovenia despite the fact that the southern coast of the bay belongs to Croatia. This is in collision with the basic principle of the UN Convention on the Law of the Sea stating that sea cannot be separated from the land. This demand is against the common sense too, since border position would depend on the tides, while swimmers would violate state borders by just entering the sea from the beach. Slovenian claims west of Bay of Piran are just as unacceptable. It should be noted that according to the Law of the Sea, territorial waters are the natural prolongation of the land territory, while Slovenia claims that its territorial waters include the area which is undoubtedly a natural prolongation of the Croatian land territory.

Figure 1: The Slovenian prejudice of the Slovenian - Croatian border. Slovenia claims not only all waters of Bay of Piran but also more than 200 km2 of territorial waters west of Bay of Piran, which are obviously natural prolongation of the Croatian land territory. Source: official map of Slovenian agency of environment.

After a few weeks the Slovenian position has considerably shifted toward the new Slovenian demand: that Slovenian - Croatian border is to be delimited before Croatia enters EU. Such a request is highly controversial since Slovenia itself entered EU in spite of the very same territorial dispute. Moreover, in case of Slovenian accession the problematic Slovenian-Croatian border represented the outer EU border, while in case of Croatian accession it would represent the inner EU border, obviously a far lesser problem. It should be noted that there are more than 30 other border disputes within EU only, so it is not surprising that the solution of border disputes is neither a part of acquis communautaire or Copenhagen criteria nor a demand in the accession agreement between EU and Croatia. The Slovenian demand is therefore not grounded, neither morally nor legally.

There is a good explanation for why these two countries haven't resolved the border dispute sooner. There is a strong disagreement about the forum and method of the solution process, since the choice obviously has a strong impact on the final solution. Croatia on one hand prefers a legal solution through international institutions. This is the preferred method for resolving international disputes unsolvable by parties themselves. Moreover, since Badinter's legal commission in 1991 determined that existing borders should only be delimited using the principle of ut possidetis iuris and not drawn from the scratch, it is primarily a legal problem. Nevertheless, Slovenia insists on the political solution through political arbitration or mediation because of the fact that it has poor legal arguments for its claims. Slovenia argues that this is due to the fact that only the political solution could ensure the so-called "Slovenian exit to international waters". Slovenian prime minister Borut Pahor has publicly admitted that this "exit", which is nothing less than blunt territorial pretension, is conditio sine qua non for the Slovenian side.

However, unofficial Slovenian pretensions do not stop there. For more than a decade, two Slovenian parlamentary parties, National party and Popular party, has been convincing Slovenan public that the whole Croatian region of Istra (5% of the whole Croatian territory) should be part of Slovenia. This claim is in a strong contradiction with the fact that Croats have been majority there since censuses were first hold by Austria-Hungary in the beginning of the 19th century. Recently, this argument was put forward by the president of the upper House of the Slovenian parliament, Blaz Kavcic. Moreover, the principal author of the Slovenian Constitution and respectable politician, France Bucar, even proposed holding a referendum. Such claims and propositions deny the very principles according to which both countries won the independence and strongly resemble the activities by official Serbian authorities in late 1980s and early 1990s.

In order to avoid extortions, EU in principle insists that bilateral problems should not be resolved within an accession process. However, the practice shows that member states often tried and sometimes even succeeded in forcing a particular solution to bilateral problems. Nevertheless, the Slovenian blockade poses new serious precedences. Never before were there blocked so many negotiation chapters and never before the extortion request was no less than a territorial concession of the accessory state.

It is important to note that the European Union, as a complex multi-state community of various interests, was created and thrived on basis of inhibiting egoistic interests of individual member states, especially sensitive matters as territorial disputes. If EU is on the path of making territorial demands to become acceptable practices, it could easily open a Pandora's box of extortions of all kinds within already not too-harmonious community and eventually led to its decline and end. What we see now may be just a step too far in the wrong direction from where there is no return.

Facts behind "Slovenian exit to international waters"

Slovenia argues that "Slovenian exit to international waters" is a death or life question for Slovenia, especially considering the operation of its largest port of Koper. Furthermore, Slovenia argues that the realization of such an "exit" requires only minor territorial concessions from Croatia, the country that already "has too much sea". But are these arguments correct and legitimate?

First of all, the notion "exit to international waters" is a Slovenian invention, as it is not defined by international conventions. The motive behind such a notion is to argue that without such an "exit", Slovenia would be a "closed" country and its port operations could be hindered by Croatia. However such claims are no more than blunt hypocrisy. In 18 years since the independence of the two countries there has not been a single incident of navigation obstruction despite the fact that the navigation route to Slovenian ports has been continuously under Croatian control. Quite contrary, the traffic through the only commercial Slovenian port of Koper more than tripled during that period. On the other hand, Slovenia continuously obstructs land traffic between Croatia and most of the EU countries. Out of the four European corridors that connect Croatia to Italy and Austria, only one awaits the completion as a highway in near future. Additionally, almost a year ago Slovenia introduced only long-period semiannual and annual vignettes for the use of existing highways. Since alternative traffic directions were deliberately thwarted, most drivers from and to Croatia are forced to pay 35 euro for as little as a dozen kilometres. Despite the European Commission characterized this decision to be against EU principles and requested appropriate changes, Slovenia so far did not comply to this request.

But what is the Slovenian position according to the Law of the Sea? According to this international convention, territorial waters can in principle extend up to 12 nm (nautical miles) from the land territory. The shortest distance between a point of Slovenian land territory (Cape Madona) and a point of international waters (T5) is more than 15.5 nm. The Slovenian request for the territorial contact to the international waters is therefore equivalent to the desire to bridge 15.5 m wide river with 12 m long plank. It is not Croatia but international conventions that stand in the way of the Slovenian requests. On the other hand, the same Law assures the right of "innocent passage" for geographically disadvantaged countries (legal expression for countries without the contact to the international waters). For example, the right of "innocent passage" assures Belgian port of Antwerp (one of the largest European ports) the uninterrupted navigation on the only route to the international waters through Dutch territorial waters! Moreover, there are many instances when navigation is possible only through the territorial sea of another country, e.g. navigation from the Baltic states through the Danish straits, navigation from the Mediterranean sea through the Strait of Gibraltar or navigation from the Black Sea states through the Dardanel Straits. The problems of navigation through foreign territorial waters has never been resolved by reducing individual countries' sovereignty (e.g., by creating territorial corridors) but rather by using international conventions and agreements (e.g., right of "innocent passage"). Therefore, the international conventions as well as legal practice clearly suggest that Slovenia neither needs nor has any right to the territorial contact to international waters.

The Slovenian side however insists that a real solution for Slovenian requests is represented by the so-called Drnovsek - Racan agreement. The agreement was negotiated between Slovenia and Croatia and paraphed in 2001, but was never signed or ratified by either side. Indeed, since Slovenian territorial waters could not be extended to international waters, according to that agreement Croatia would renounce part of its territorial waters in order to create a corridor of international waters (see Figure 2). A triangle of Croatian territorial waters would remain beyond the corridor, and hence disconnected from the rest of Croatian territorial waters. However, such a solution would create two huge precedents in delimitation of maritime borders, both in contradiction with the Law of the Sea. First of all, part of Croatian territorial waters would not be connected to Croatian land territory. And second, international conventions do not anticipate the possibility to renounce country's territorial waters - just as they do not anticipate the possibility to renounce country's air space.

Figure 2: Croatian territorial losses according to the Drnovsek-Racan agreement(paraphed, but not signed) and Slovenian Act on the Proclamation of the Ecological Protection Zone.

Does this agreement present the solution to Slovenian needs? The answer is categorically no! Namely, Croatian and Italian territorial waters are connected at another place in the middle of the Adriatic sea; the distance between the Italian island of Pianosa and the Croatian island of Palagruza is only 21.5 nm. Even if ships from Slovenian port of Koper could pass by Croatian territorial waters using the corridor, they still ought to pass through Croatian or Italian territorial waters near the island of Palagruza, not to mention that they ought to pass through Spanish or Marocese territorial waters in the Strait of Gibraltar in order to access the Atlantic ocean. Moreover, the position of the corridor is not harmonized with existing navigation rules for Gulf of Trieste (see Figure 3). According to these rules, all ships must approach the Slovenian port of Koper and the Italian port of Trieste through Croatian territorial waters and return through Italian territorial waters. The Slovenian demand for a corridor for navigational purposes is therefore meaningless.

Figure 3: Traffic separation scheme in the Gulf of Trieste

Does this agreement require only minor territorial concessions from Croatia? The answer is again categorically no! By observing the median line in Bay of Piran, which represents the most probable solution according to the Law of the Sea, it can be easily calculated that Croatia gives up about 160 km2 of its territorial sea (which corresponds to the area of Principality of Liechtenstein) (see Figure 2). However, while the territorial contact to the international waters does not solve the Slovenian "exit problem", it does enable Slovenia to claim a disproportionally large Exclusive Economic Zone (EEZ) in area where Croatia has already claimed its own EEZ. Indeed, despite the fact that in the moment Slovenia de facto does not have such a contact, Slovenia has already proclaimed its own EEZ of more-than-symbolic area of 350 km2 in 2005, which is exclusively located in area that is a natural prolongation of the Croatian territorial land. This practically means that only 12 nm from the Croatian coast and up to 30 nm from the Slovenian coast, Slovenia would have exclusive rights to fishery and ore deposits! It should be noted that the area of the north Adriatic Sea is rich with natural gas which is already being extracted by an Italian-Croatian consortium. It is therefore more than obvious that Slovenian territorial demands are not after solving the "exit problem", but after a vast and rich sea territory just in front of the Croatian land territory.

Since Slovenian demands are immoral and excessive, it is expected that Croatia will insist on the legal resolution, which is the only guarantee that its interest as the country in lesser political position will be properly observed. The main Croatian argument in this the so-called Bled agreement between Slovenia and Croatia in 2007, that the border problem is going to be resolved at the UN Court of Justice in Hague. Slovenia is evading such a solution and has great expectations from the mediation proposed by European Commission. This is understandable, as they have great expectations that EU commissioner for enlargement Olli Rehn will impose a mediation that will minimize the legal dimension of the problem, as his pricipal concern is to solve the problem of Slovenian blockade regardless of the possible harm to EU and international principles.

To conclude, the reasons for the Slovenian blockade and navigation concerns are simply a facade that hides blunt extortion to force Croatia to accept huge territorial concessions, which are against positive international laws and practice. The European principle of equal treatment of all countries, the principle of avoiding bilateral relations in accession process and the principle of giving up territorial pretensions are all being put in question. Mild and Slovenia-favorable reactions of European institutions and other important European policy-makers suggest that they are not aware of the possibile harms. This situation does not only effectively stop further enlargement and stabilization of the rest of Europe, but could dangerously destabilize the European Union itself.