UPDATE 29/06/2016 @ 1630 CET: The Tribunal has announced its decision which (at least in part) goes along the lines argued in the post. See the end of the post for details.
Once for a change, Slovenia and Croatia have every right to feel like the centre of the world. It’s not as if they don’t feel like that most of time, but with the final decision of the arbitration tribunal on the border between the two former Yugoslav republics due on Thursday, the attention of much of the continent (if not the world) will be upon them. And it shows.
The disputed maritime border between Slovenia and Croatia
The story of the Slovenia-Croatia border dispute is as long as the independence of the two countries and has in the past quarter-century gone from practically non-existent to near-armed-conflict and back again, with everything in between. It has been used time and again for scoring cheap political points, divert attention from other problems or even (allegedly) coordinated by players on both sides of the borders to swing elections. But in reality it was nothing more than a neighbourly dispute over a few patches of land that got out of hand.
Pengovsky covered the dispute on this blog every now and then, most notably in a five-part The Definitive Guide to the Arbitration Agreement Between Slovenia and Croatia, published in the days before Slovenia held a referendum on the agreement in 2010. The high-point of Borut Pahor‘s premiership, the agreement (approved by the narrowest of margins) took the issue off the daily agenda at least for a while and cleared the way for Croatia to join the EU.
The crux of the matter is Slovenian access to international waters off the Slovenian coast. If the maritime border were drawn from the delta of the river Dragonja down the middle of the Bay of Piran, Slovenia would be effectively cut off from accessing international waters directly. If, however, the border were drawn a bit more imaginatively and (according to Slovenia’s position) in accordance with facts on the ground on the date of the independence then Slovenia could retain access to international waters. On the other hand, if the border were not drawn down the middle of the bay, Croatia would lose a direct border contact with Italy.
Why is this important, you ask (especially since the whole area is too small for an aircraft carrier to make a U-turn)? Because reasons. And pride. Access to international waters is a strategic issue, to be sure. But so is keeping a border with Italy. And just as Slovenia will not have Croatia technically control its access to high seas, Croatia will not have Slovenia technically control its access to Western Europe.
Overreacting? Perhaps. But this is where we are at. The past 26 years have seen so much posturing, bluffing, provocations and bad decisions that it would have taken at least a quarter-century more for things to quiet down to the point where normal dialogue would again be possible. Case in point: an ill-advised resolution of the Slovenian parliament claiming sovereignty over the entire bay of Piran, right up to the Croatian coast. And that’s not even taking into account for the fact that the maritime border is just one issue, compounded by other different-but-similar issues along entire stretch of 670 kilometres of the border between the two countries. To take an example at random, the principle of administrative control which Croatia employs in claiming control of the coast of the Dragonja delta gives Slovenia control of a sizeable (relatively speaking) stretches of real-estate on the South bank of the river Mura (and vice-versa).
The only real attempt at solving the issue was made by then-PMs Janez Drnovšek and Ivica Račan in 2001. The so-called Drnovšek-Račan agreement was as close as the two sides ever came to an agreement, but then the Croatian PM failed to secure a majority in the parliament to ratify it. Years later it became clear that the main culprit for that was not the right-wing HDZ (which was in opposition at the time but still wielding enormous power) but rather Račan’s hand-picked successor Zoran Milanović who chose to dance to the nationalistic tune and accused his mentor of high-treason (link in Croatian only).
At any rate, here we are, sixteen years later, apparently hours away from a verdict on a matter the two countries were incapable of solving on their own. Given that every argument ever made was hashed and re-hashed time and again, it would be a surprise if the end result would vary substantially from the Drnovšek-Račan agreement. Maybe in a few details and the language but not in substance.
After all, the reason Croatia tried to blow up the agreement by publishing recordings showing Slovenia acted in bad faith vis-a-vis the Arbitration Tribunal was, that the outcome was apparently not looking good for Zagreb and they were searching for a way out. The Tribunal would have none of it and continued its work.
Since Croatia rescinded the Pahor-Kosor agreement which established the Tribunal (thus acting contrary to the stipulations of the agreement that no backtracking is possible), this now creates an interesting conundrum: if the decision of the Tribunal is favourable to Slovenia and Croatia refuses to accept or even recognize it, the whole thing is back to Square One, at least for the time being. But if the decision would somehow be in favour of Croatia, Slovenia would be bound by its statements of accepting the decision whatever the outcome although there would no doubt be much pressure to make use of Croatian side-stepping and start pretending the agreement never existed.
If these were two serious members of international community we were talking about, any of the above would be possible. But the Pahor-Kosor agreement was signed under the auspices of the European Union. And while the EU does not interfere in bilateral relations between member states it does wield substantial informal power. So it will be interesting to see just how and when the final decision of the Arbitration Tribunal will be enacted.
One thing is clear, though. President Pahor was wildly out of touch when he told his Croatian counterpart Kolinda Grabar Kitarović the other day that both countries will loose the moral ground to lead in the Balkans if they fail to enact the decision (link in Slovenian).
Fact of the matter is the two countries lost the moral ground to lead in the Balkans the moment they admitted they’re unable to solve the matter by themselves. The only thing that remains now (as former Drnovšek advisor and former Slovenian ambassador to Serbia Borut Šuklje succinctly puts it in the above link) is for the rest of the Balkans to see if it is still possible to break agreements and get away with it.
EDIT: It is 16.30 hrs on 29 June and the tribunal has finished reading its ruling. For the most part, the disputed areas were awarded along the lines of cadastral limits (i.e. records of the size and scope of specific plots of land which often go back centuries). Of the more interesting points of contention, this meant that the Trdinov vrh/Sv. Gera (a hill on both sides of the border in the Dolenjska region) is split down the middle, with the key RF transmitter falling to the Slovenian side but with a small military outpost manned by the Slovenian army falling to the Croatian side. Also, the plot of land owned by the infamous Joško Joras was awarded squarely to Croatia. A lot of other contended areas were awarded to Slovenia. See the Tribunal’s press release for details.
In fact it was the fate of the Jorasland which gave the first hint as to the fate of the maritime border. And when the Tribunal awarded more than 3/4 of the Bay of Piran to Slovenia, the whole thing started really to look like a remake of the 2001 Drnovšek-Račan Agreement. Indeed at one point the tribunal specifically referred to those negotiations as a point of agreement between the two countries.
And in the end, not unlike the Drnovšek-Račan Agreement (the leading image of this blogpost), the tribunal provided for a corridor (a.k.a. a “junction area”) with unfettered freedom of communication on, below and above the sea. While technically Croatian waters, the regime treats them as international waters and specifically forbids Croatian authorities to board non-Croatian vessels, ban or otherwise hinder any and all maritime and air traffic in the “junction area”. Croatia will be able to exercise consular/diplomatic activities and/or assistance in the area if asked to do so by a third-state vessel. It also retains the right to exploration and exploitation of the seabed in the area.
Part of map detailing the maritime border and the junction area (source)
All in all, the final decision of the tribunal is, as expected, a variation of the Drnovšek-Račan agreement. Compared to the 2001 agreement, today’s decision is slightly more advantageous to Slovenia in terms of territorial waters (Slovenia gets more of the Bay of Piran) and slightly less so in terms of access to international waters (the corridor is technically not considered international waters). But the effect is more or less the same. Slovenia was awarded completely unfettered maritime access to international waters (military, civil and merchant) while Croatia did retain a physical border with Italy. Basically, Drnovšek-Račan in all but in name.
The only question is why the fuck did we have to wait sixteen more years to get to where we once already were.
As for the execution of the verdict, things will remain tricky for the time being. A number of EU member states (most notably Germany and Italy) went on the record saying they expect the ruling to be honoured by both sides. And indeed with neither party being overly victorious it will be hard for anyone (let alone the two states involved) to advocate a back-to-the-drawing-board approach. And while Croatia might take a while to come around and quietly accede to the ruling (because why not make everyone’s lives a bit more difficult for a little longer?), today has shown that Zagreb can effectively defend its vital territorial interests via this particular mechanism of international law.
Let’s just hope it doesn’t take sixteen more years.