The Definitive Guide to the Arbitration Agreement Between Slovenia and Croatia, pt. 4

Stand-off between Slovene and Croat police near Hotiza in 2006 (photo: Tadej Regent/Delo)

Tee-minus-six days and counting. The debate on the Arbitration Agreement is in its final stages, with neither side as yet delivering a crushing blow. But the night is still young and there’s ample time until Friday evening both for opponents as well as proponents of the Agreement to give it one more shot at securing those extra percent of votes which will quite possibly tip the balance.

Curiously enough, both sides seem to expect to lose the vote which is quite possibly a first. Obviously one of those sides is wrong, but – neglecting the possibility of false modesty – this does show that things have long since gotten out of control, that uncertainty runs high and that the whose shebang will probably go down to the wire.

Beating the drums

As the clock ticks away, we are witnessing final pushes by both sides to win at least some of the undecided vote. In case of PM Borut Pahor and government this means generating (artificially or otherwise) a wide range of support by people and organisations who previously did not support arbitration or had at the very least voiced concerns over it. Every party in the coalition is organising its own round tables, debates and Q&A sessions. This is aimed at both reassuring the faithful as well as trying to convince those who might still have doubts.

Alternatively, organisations like WWII veterans’ organisation came around and are now supporting the Agreement although its leader Janez Stanovnik (a prominent diplomat in 60s and 70s, the last president of Slovene socialist presidency and as of recent honorary citizen of Ljubljana) months ago said that asking a third party to decide the issue goes against what this country fought for. But apparently a push came to a shove and now organisations like Stanovnik’s are rallying behind the Arbitration Agreement.

On the other hand, the opposition is trying to up the ante. Days ago Janez Janša said that there are alternatives to the Agreement. At first he said that his SDS will present alternatives a month after the referendum, but when pressed on it, he said that alternatives include a) bilateral agreement based between the two countries based on Drnovšek – Račan Agreement, b) an arbitration agreement which excludes use of international law and c) an arbitration agreement which would at the very least specifically say that Slovenia has access to the high seas.

You will note, no doubt, that for all the hubbub about high treason, betrayal of vital interest and supposed ceding of holy Slovene land and seas, Janša’s alternatives go very much in the same direction as does the Pahor-Kosor Arbitration Agreement. Even more, he made his “alternatives” public only after it was dug up that Janša in 2007 said that he cannot imagine any sort of arbitration court awarding Slovenia less than the Drnovšek- Račan agreement of 2001. In all fairness, it should be written that his position now is that this agreement is paving the way for exactly that: Slovenia getting less that the Drnovšek-Račan agreement.

But as things stand, this agreement is most likely to be used as a reference point anyway, since it was the closest two countries ever came to an agreement, while (non)use of international law and the phrase “territorial access to high seas” is something Janša and his SDS have always held against the agreement at hand.

These issues were detailed in English days ago by Žiga Turk, former minister of development during Janša’s stint as PM. Turk, who (slightly off-topic) is rumoured to be a possible SDS candidate for Ljubljana mayor in autumn municipal elections, basically sets out a set of grievances opponents of the agreement have been voicing over and over ever since the Agreement was signed. His post, although not as nearly unbiased as he claimed and en passant accused yours truly of resorting to political spin, does show that the bottom line lies somewhere else.

Territorial claims

This is about territory. Wile the Arbitration Agreement settles on 25 June 1991 as “day zero” and a starting point for settling the dispute, the opposition sees this as an opportunity to undo some of the historical injustices Slovenes had to endure throughout history. Specifically: After the Free Trieste Territory was divided between Yugoslavia and Italy, it was only Slovenes which were left on the “wrong side” of the border, thus disenfranchising Slovenia in favour of Croatia.

Ergo, Croatia should make concessions to Slovenia to “right this historical wrong”. And just how should Slovenia go about this? According to SDS leader Janez Janša (as stated Sunday last on POP TV) Slovenia should claim sovereignty not only over the entire Bay of Piran but also over the Savudrija area on the other side of the bay, land which on 25 June 1991 was undisputedly Croatian.

Stop. Rewind. Play. President of the largest opposition party, former prime minister of this country and former chairperson of the EU Council stated a territorial claim against a neighbouring country. Ladies and gentlemen, this is how wars start.

Sure, you could say that this was just impotent rage or a cheap bluff by a politician afraid of losing a big part of his political platform. But there’s more to that than meets the eye. There’s a pattern. During his re-emergence as defence minister during the short-lived centre right government of Andrej Bajuk, Janez Janša (after yet another incident in the Dragonja area, now known as Jorasland) proposed that Slovenia send special police forces to the disputed area to enforce Slovenian sovereignty over the area (link in Slovene). Nothing ever happened, since Bajuk’s government was thrown out of office in favour of Janez Drnovšek and his then-almighty LDS.

However, six years later, this time with Janša as prime minister, another incident took place, this time in the Hotiza area in Prekmurje region, where Croatia began constructing levies on another patch of disputed area. This time Janša and his government did send special police units to the area, resulting in a stand-off that he and his Croatian counterpart Ivo Sanader had to solve by meeting in person in the area (link again in Slovene).

And now, he’s willing to do it all over again.

How so?

Speaking from a political science point of view, this quite probably has to do with what is today predominantly understood as a right-wing definition of a nation, which is defined by its borders. Borders which separate “us” from “them”. Remember, this is not just about exercising sovereignty. For the opposition it is about righting a historical wrong. However, there are other wrongs, much closer to present which would probably have to be dealt with.

As readers of this blog know, what were once administrative borders between republic became international borders between sovereign nations once Yugoslavia broke apart. In case of Slovenia and Croatia this mean that the two nations had to establish checkpoints and border crossings. And this where Slovenia made a crucial mistake early on. When establishing its checkpoint on what was later to become Dragonja international border crossing, the first Slovenian government for one reason or the other decided to pull back the position of its checkpoint some two hundred metres inland. Upon seeing this Croatian authorities established their checkpoint north of the bed of the river Dragonja, effectively putting the median line between two checkpoints further north, thus starting this whole thing.

OK, so you’re an inexperienced and internationally unrecognised government and you just skated more or less clean out of a what could have been a prolonged and extremely bloody armed conflict, while your neighbour (Croatia) is getting gutted from bladder up. You just don’t want to press your luck. Fine, we’re cool with that. The only awkward thing is that the defence minister at the time and the person making territorial claims against Croatia today are one and the same person.

Janez Janša was an illustrious defence minister who together with Igor Bavčar (later of Istrabenz infamy), Milan Kučan and other senior leadership made history in 1991. OK, so today we have the power of hindsight and can say that they all fucked up with that checkpoint. Had they established it further south, none of this would have happened. But hindsight can be deceptive. There is no reason to berate Janša or anyone else at the time for doing what they did. On the larger scale of things we can all just thank them and whatever god we may believe in that things went as they did.

However. This does preclude anyone in Slovenia, Janša especially, from making any sort of territorial claims, especially those based on “righting a historical wrong”. Even more – holding hostage a perfectly viable agreement which can possibly bring about a border solution both countries can live with, just to save one’s face is irresponsible and a sign of petty politics. And don’t forget that Janez Janša once already resorted to such trick, when vetoing Croatian NATO entry just because his government’s creative accounting techniques were exposed.

Stop fooling around and get back to the facts

So, where was we? Ah yes. The bottom line is that for all the talk about history, rights, wrongs, dos, don’ts and such, it all boils down to how one reads articles 3 and 4 of the agreement, as detailed by fellow Twitterer Matjaž Janša (no relation to SDS leader Janez Janša, link again in Slovene) Opposition for some reason believes that the court will interpret it in Croatia’s favour. God knows how they came to that conclusion, but there you go.

True, there is little-to-none judicial practice on “junction to high seas”. But this does not play against Slovenia. Quite the opposite. This will allow the arbitrary court to create international law rather than simply refer to existing laws. If anything, this increases the chances of a solution both countries can live with. Even more: since the Agreement sets 25 June 1991 as “date zero” this also means that there is a real chance of the court pushing the border on the river Dragonja south, thus automatically rejecting Croatian claims that border runs down the middle of the Bay of Piran and making it all the more likely that both countries will get what they want: Croatia to keep its maritime border with Italy and Slovenia to keep its access to high seas. I’m not saying it will happen, I’m saying there’s every chance of it happening.

What do the polls say

Depends. There were a couple of polls early last week which showed that a majority was against the deal, but last polls again show a majority in favour of the referendum. Slovenian election legislation prevents media from publishing polls a week before the vote, so any data which might be available will be “internal”. A notable exception being Mladina weekly. The magazine announced yesterday on its Twitter account that it will run a longitudal poll from tonight until Friday. It will publish its results in its webpage in clear violation of the election law. They’ll probably get fined for it, but the media has for years now been trying to change this part of the law which in all honesty is rather redundant in an era when people get their information on the net 24/7.

Informed guesses vary wildy, but – as mentioned in the beginning – people on both sides are seeing internal polling results and are not happy. It will quite probably come down to turnout, although pengovsky heard an estimate of as much as sixty percent of votes in favour of the agreement, but that is probably overly optimistic no matter how you look at it.

So what was that MS word thing?

Oh, that 🙂 Well, it was funny really. You remember the last time around, when opposition was trying to declare the Agreement null and void? Well, it turned out that the MS Word document they sent out as a press release was actually created on a computer belonging to Ministry of foreign affairs. According to media reports an investigation was launched into the matter but it will probably come down to nothing, and for two reasons: One, SDS said that they were merging documents and that the original »author« watermark remained. And two, it is very likely that the document was (largely) written by former foreign minister Dimitrij Rupel, who is still employed at the ministry, but is being tasked only with keeping a ficus and producing CO2. And given the fact that Rupel’s list of transgressions against his employer is already as long as pengovsky’s you-know-what (microphone chord, you pervert!), this only adds one notch to a long and distinguished line of misdemeanours.

Anyways, this concludes the lesson for today. Tune in tomorrow for a brief update