The Definitive Guide to the Arbitrage Agreement Between Slovenia and Croatia, pt. 2

Finally, with ten-or-do days to go until the referendum, the second instalment of pengovsky’s Definitive Guide to the Arbitrage Agreement Between Slovenia and Croatia :). For the first part, click here

Approximation of the Drnovšek-Račan agreement. Taken from this post

Campaigning pro and contra the Arbitrage agreement is vicious. I’m talking distilled venom of the Brazilian wandering spider here. From day one, there were direct hits below the belt, ad personam attacks, cynicism and sarcasm galore (iLike those, but still) and both sides, coalition and opposition, have embarked on an campaign trail rarely seen for a referendum vote. This will be a bitter fight that will do right down to the wire. So, what are they sayin’ and who’s got more leg to stand on?

Heading South

The case for supporting the arbitrage agreement is compelling. Slovene- Croat relations were at an all time low, just as Slovenia was headed for elections in 2008. Ever since 2001, when Croatian parliament refused to ratify the Drnovšek-Račan agreement, which was as close to a solution as the two countries ever caome, bilateral relations were heading south.

Border incidents were had a regular recurrence rate (i.e.: every time either country was in a pre-election period) and Croatia was establishing what George Bush jr. would surely have called “a new reality on the ground”, which peaked in the 2005 as then-PM Janez Janša and his foreign minister Dimitrij Rupel were apparently outfoxed by Croatian PM at the time Ivo Sanader, who somehow coaxed them into agreeing that the dispute should be solved in front of the International Court in Hague, which (so it is understood) has a tendency to solve such disputes by drawing a direct line down the middle of the disputed area, which would in this case put Slovenia exactly where it doesn’t want to be. It is still not entirely clear why Janez Janša at the time made the deal that he had made, but fact of the matter is that of all the agreements ever made, that one served Slovenian interests least.

Luckily, that was yet another deal that came to nothing, but at some point tensions along the border grew and there were several tense moments by the River Dragonja and even a police stand-off along a disputed area by the River Mura. And then, just as Slovenia ended it’s six-month presidency of the EU in 2008, Janša’s government started making noises about blocking Croatian EU negotiations until such time the border dispute is solved in a way that makes Slovenia happy. This policy was followed by the new government of Borut Pahor and as a result Slovene-Croat relations went deep-freeze.

Several rounds of negotiations were held between Slovenia and Croatia and PM Pahor was desperate to show that the dispute is not about Slovenia taking it out on Croatia, but rather that it has legitimate concerns regarding the border dispute. Slovenian position was not helped by the freshly ousted Janša, who vetoed ratification of Croatian NATO entry (a development which ran parallel to the border dispute) and a referendum on that was very nearly called.

And then PM Sanader resigned, Jadranka Kosor succeeded him and suddenly, there was more love between Ljubljana and Zagreb then one could fit into a Dainelle Steel novel. In a relatively short period of time (and with a little help from our EU friends, most notably Commisioner Olli Rehn) an agreement was trashed out, which set forth the rules by which the dispute is to be solved. It was to become known as the Arbitrage Agreement, the Pahor-Kosor Agreement or as the Stockholm Agreement

The Shit

There are a couple of neat things regarding this particular piece of paper, linked above:

Firstly, in Article 5 it sets the date of declaration of independence as the critical date. This means that the ad-hoc arbitrage court will accept situation on the ground as it was on 25 June 1991 as reference. No unilateral decision by either country will count any more. Technically this means that whatever territorial “gains” either side may have made in the last twenty years, they became null and void and that the whole process of drawing borders in the disputed areas will begin from square one.
Secondly, there are the infamous articles 3 and 4. The former stipulates the subjects of the arbitrage, while the latter stipulates the methods used in reaching the decision. In short, it dictates combines use of international law, equity and good neighbourly relations to achieve a fair result, taking into account all relevant circumstances.

And finally, there’s the word “junction” which pengovsky already detailed in yesterday’s post. Apparently, junction doesn’t have a specific meaning in the international law. Opponents of the arbitrage agreement point to this as the main flaw of the Agreement, hence liberal applications of words like “incompetence”, “treason”, “betrayal” and what not.

But in reality this is the beauty of this document. Since there is no convention (in the sense of “common usage”) on this word, the arbitrary court can twist and turn it, to try to come up with a solution that will enable Slovenia and Croatia to both have the cake and eat it. How exactly this will be achieved remains to be seen, but the point is that by using an unconventional word, possibility for an unconventional solution opens. Had Pahor and Kosor agreed on a more conventional word (like “passage” or “direct contact”) one of the two parties would have given in by default.

International law

Opponents of the Agreement are quick to point out that according to Article 4, item (a), the court will use international law to decide the maritime border, and then proceed from that point on to see what can be done to grant Slovenia access to high seas. But, so goes their reasoning, since the border will by then have already been drawn down the middle of the Bay of Piran, there will be bupkis that could be done for Slovenia, so we will have lost. Tough shit.

However, what opponents of the Agreement fail (or refuse) to see is to understand that articles (and indeed the entire document) must be read holistically and not only item by item. Meaning that *while* border between Slovenia and Croatia will be drawn by using international law, Slovenian direct access to high seas will be decided using other methods. Not *after* not instead, but while.

Even more: the dreaded phrase “use of international law” is actually much more up Slovenia’s alley than it may seem at first glance. Namely, international law is nothing else than a body of multi-lateral conventions and bi-lateral agreements. There is no world police to enforce international law it is not an accepted and rigid code by which everyone plays, but rather an ever changing mass of legal text which can bear more or less relevance to the matter at hand.

And this is where the Agreement becomes important. The moment it is ratifies, the Agreement will become international law and will as such be used as a legal reference point in solving the dispute. And since the document widens the manoeuvring area, it may become possible to still use international law (with Agreement now a part of it) and not necessarily claim that it prescribes the maritime border be drawn down the middle of the bay.

It is a neat trick, but to understand it, one needs to realize that international law does not necessarily follow the same logic as domestic law.

A Gamble of Galactic Proportions

It would be wrong to say that the result of the Agreement is a foregone conclusion. It isn’t. But we’re closer to a solution both countries can live with than we ever were in the past, with the possible exception of Drnovšek-Račan agreement. But one thing is for certain. If a satisfactory solution is solved (and this document goes to great lengths to point out that a fair decision must be reached), then the Slovenian political right lost a big source of cheap votes.

No longer will marched “on the South border” be held, no longer will police stand-offs be a convenient way to divert public attention. And no longer will the border issue be a free-for-all political platform in that political menstrual cycle we – for the lack of a better word – call elections.

Even more: In Slovenia at least, removing the border issue will most definitely put at least one political party at peril. Slovene People’s Party (SLS) of Radovan Žerjav is life-threateningly dependant on continuation of the dispute. They put all of their political eggs (note that I did not use the word balls) in one basket and now it is being taken away. No more dispute, no more SLS.

The situation is only slightly better with Janez Janša’s SDS. In all honesty, the largest opposition party is not nearly as much dependant on this issue, but as it tries to dominate the political right wing, the party and its leader have moved further to the right on this issue, so solving the dispute would mean a major drawback in voter animation and a lot of resources go to waste.
Curiously enough, the only one who will probably not get hurt either way, is Zmago Jelinčič of Slovene National Party. Although the leader of nationalists is currently farting in Croatia’s general direction, he and his »post-modern« politics are just as capable of supporting Croatia and even demanding the Slovenian constitution be amended to include special rights for Croatian minority in Slovenia. Whatever brings votes 😀

On the others side of the aisle, however, the stakes are even higher. Should PM Pahor pull this off and achieve a favourable result, he would have achieved probably the only remaining “holy grail” of Slovene foreign policy and quite rightly enter the history books. Which would be all the more stunning given the fact that a lot of people did not think he’d last a year in office. Pahor was right the other day when he said that part of Janša’s opposition has to do with the fact that Janša failed, while Pahor came oh so fucking close to heaven.

The Deal

So, what decision will the court reach? No one knows and those who say they do, are either presumptuous morons or lying bastards. Probably both. However, since most of you already think of pengovsky as a moronic presumptuous lying bastard, I’ll give it a shot 🙂

Despite the fact that the Agreement gives the court ample room to manoeuvre, there is only so much it can do. The closest two countries ever came to a deal was the oft-cited Drnovšek – Račan deal (see picture above) and it seems reasonable, that the court will revisit it. However, that will likely be the starting point, rather than the end of the arbitrary process. Proponents and opponents of the agreement in Slovenia are spewing ash and sulphur at each other at the rate that would make Eyjafjallajökull blush. More on that and on the latest polls tomorrow, but in all the brouhaha one thing sort of vanished from the radar: the possibility of a condominium.

Pengovsky has a hunch that what the court will look at is the possibility of declaring the famed “Drnovšek-Račan” corridor a condominium instead of declaring it a part of the high seas (as per the above agreement). I’m not saying that it will happen, I’m just saying that it might very well happen, because there’s only so much you can do to have the cake and eat it.
By declaring the corridor a condominium, both countries would exercise full sovereignty over that particular strip of the sea. Slovenia would have sovereignty over the part of sea which has direct contact with international waters, while Croatia would at the same time maintain a direct maritime border with Italy.

Tune in tomorrow, to see how the two sides are faring ten days before the referendum, what the polls are saying and why “defenders of holy Slovene soil” have such a hard time accepting the fact that the issue might actually get resolved.