Raw Deal

Yesterday Slovenia and Croatia reached and agreement regarding the ongoing border dispute and related Slovenian blocking of Croatian EU membership negotiations. The deal was struck in Ljubljana by heads of governments of boths countries amid what appears to be a second honeymoon between the two countries and especially between the two prime ministers: Slovene PM Borut Pahor and his Croatian counterpart Jadranka Kosor. While the deal does not settle the border dispute itself, it opens the way for continuation of Croatian EU negotiantions, much to the delight of Zagreb and Brussels. Also, it needs to be said that Croatian EU membership is also in Slovenian interest, both politically as well as economically.

PMs Kosor and Pahor in downtown Ljubljana (source)

In Slovenia the deal came under intense fire from the political right-wing, especially from Zmago Jelinčič’s Slovene National Party (SNS) as well as Slovene People’s Party (SLS), as of recently headed by Radovan Žerjav. Predictably, Janez Janša’s SDS is also making unhappy noises, but since the top dog of the party remains silent, their position can change quickly, in accordance with his instructions.

But yesteday was apparently a happy occasion for both sides and both heads of government decides to celebrate by having a coffee in downtown Ljubljana, which was definitely a first. Okay, so Borut and Jadranka could have picked a better spot than the tourist-trap that is the cafe on Prešeren square, but there you go.

Appearances, however, can be deceiving. According to the official press release the deal has three basic points:

  • 1. In a letter (faxed from Pahor’s office just prior to the meeting, mind you) to Swedish PM currently holding EU presidency, Croatian PM Kosor stated that “no document, position, written or oral statement within the framework of the negotiation process shall prejudice the final determination of the border.
  • 2. Kosor’s letter apparently includes a statement that “the border dispute will be settled by way of international arbitration, as proposed by the European Commission, and that negotiations will proceed from the point at which they were suspended on 15 June 2009,”
  • 3. Agreement on the method of settling this dispute will be reached before the vote on accession treaty takes place in the Slovenian National Assembly
  • To put it in layman’s terms: PM Kosor stated that anything said, done, written or submitted regading border with Slovenia in the process of EU negotiations does not pre-judge the disputed border areas. Secondly, the dispute will continue to be sovled where it was left off by EU Commissioner Olli Rehn, while the manner of the dispute will be solved by the time Slovene parliament votes on Croatian accession to the EU.

    Finally (and this is not included in the press release) any and all documents and actions regarding the border between the two countries passed after 25 June 1991 (the day both coutries declared independence) will not ne applicable when settling the dispute.

    Pengovsky would be very much thrilled if this were a good, or at least an even-sided deal, but I’m afraid this isn’t it. Not even close.

    First of all, there are the documents, which Croatia submitted to the European Commission and which PM Kosor said that they do not prejudge the border. The problem is twofold: firstly, PM Kosor gave assurances that were not hers to give. These documents were passed by the Croatian parliament and their nature can only be changed by the very same institution. But that is a problem for Croatia.

    Secondly, these documents are still a part of Croatian legislation and will – since they will apparently not be withdrawn – become an integral part of Croatian Treaty of Accession to the EU, which will become part of European legislation once ratified by all member states. Given the fact that these documents, which draw the maritime border down the middle of the bay of Piran, cutting Slovenia out of direct access to high seas are fully in force in Croatia today, their becoming part of EU law could undermine Slovenia’s negotiating position, regardless of the manner in which the dispute will be solved.

    Thirdly, declaring all documents and agreements after 25/6/91 invalid is problematic. Admittedly, this includes all unilateral acts, which include Slovenian declaration claiming the entire bay of Piran, as well as Croatian setting up border check-points north in the disputed area. And most importantly, it includes the Drnovšek-Račan agreement. The latter (which is as close as the two countires ever came to a solution) is now officially dead. The only problem is that past Croatian attemps to create a new reality on the ground are still there.

    Truth be told, there seems to be some sort of confusion on this point. The official Slovenian press release does not say a word about it, while the translation of Kosor’s letter (Slovenian translation provided by Pahor’s office) states that any unilateral acts and documents will not be considered valid when deciding the border question. The official Croatian press release, however, states that “no document or unilateral move after 25 June 1991
    has legal effect in the settlement of the border dispute

    So, reading the Croatian press relase letter-by-letter, the Drnovšek-Račan agreement is dead. Reading the Slovenian translation of Kosor’s letter to Swedish EU presidency, the agreement is not dead, as the letter talks about unilateral deals only. And reading the Slovenian press release, there is no mention of any of this at all.

    And finally, there’s the point of “deciding on method of settling this dispute will be reached before the vote on accession treaty takes place”. This does not mean that the border dispute itself will be solved by then. Given the wording of the document, it most likely will not be. It only means that by the time the vote on Croatian EU membership comes up in Slovenian parliament the manner in which the dispute is to be solved must be decided. Which means that Slovenia has just dropped its lone ace in the game.

    And what happens if my some chance even the method cannot be agreed upon by the time Slovenian parliament votes on the Croatian accession? Will Slovenia block the process once again? It could, but it will get even less support in the EU then it did this time around. Namely, if until now Slovenia had specific grievances towards specific documents, in a few years time it would be blocking a fully harmonised candidate state. Until Friday, Slovenia was able to nitpick and complicate things in a accession process. As of now, any more attempts at a blockade will be treated with contempt, because we had our chance to solve the problems.

    So, unless things go really good really fast, prime minister Borut Pahor will turn out to have fucked up spectacularly. And if the last eighteen years are anything to go by, things will not go really good really fast. All along the Croatian modus operandi was to secure their basic interests and not move an inch beyond that. Now that the blockade is about to be removed, they have little incentive to do anything more about the border dispute. Unless, of course, either country’s parliament steps in and undermines the deal. At which point we would be seriously back to sqare one, without a solution in sight.

    So, rather than being hailed as a triumph of dialogue, the Kosor/Pahor deal can well be seen as Slovenia backing down yet again and putting off the inevitable show of force until the vote on Croatian EU membership. By which time it will have been too late, unless the process of finding a solution to the border problem makes substantial headway very soon.

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    Agent provocateur and an occasional scribe.

    5 thoughts on “Raw Deal”

    1. Haha, the beauty of language! The Croatian press release takes one interpretation of the original sentence which says: “no document or action undertaken unilaterally by either side after that date shall be accorded legal significance …” Here, “unilaterally” could, in my opinion, apply to both documents and actions. The question, though, is, can a document be “undertaken”?

    2. A document can be “undertaken” in the sense that the writing or signing or agreeing to a document can be “undertaken” (i.e. actions, not objects are undertaken), and I think any common-sense reading of the statement Luka cites would be understood to refer not only to unilateral actions but to unilateral documents. In this light, any bilateral document (e.g. the Drnovsek-Racan agreement) could still be given a certain weight.

      Pengovsky’s point that the disputed Croatian EU documents will become “an integral part” of Croatia’s Treaty of Accession and therefore legally binding with regard to the border seems doubtful to me, since there now exists another official document from Croatia stating that these materials explicitly cannot be used — i.e. have no effect whatsoever — in determining the border. Jelinčič and Company is, typically, trying to stir up fear to support their own position as Defenders of the Slovene People, but such fear is ungrounded, and Peng should know better than to encourage such folks.

      The bottom line is that everyone – Brussels, Ljubljana, and Zagreb (to the degree that the prime minister can speak for Croatia) – agrees that the problematic documents have no relevance when it comes to resolving the border dispute.

    3. I’m not saying that the documents will become legally binding with regard to the border. They will become legally binding. Period.

      What I was trying to say is that the documents will become part of EU law (that is a fact). And when they do, there would have been EU legislation as such to draw from. Which is not exactly peanuts.


      PM Pahor went on the telly yesterday and did some ‘splainin’, which – if true – puts the whole thing in a slightly different context.

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