The Wire: Arbitration Agreement Edition

In the good old days, men were men, women were women, Eccentrica Gallumbits, the triple-breasted whore of Eroticon Six was Eccentrica Gallumbits, the triple-breasted whore of Eroticon Six and Slovenia-Croatia border disputes flared up every summer. Like clockwork. Then came the Arbitration Agreement and put an end to all that. And I’m not talking about hipsters here, if you catch my meaning. Since yesterday, however, it feels like the good old days.


Arbitration Tribunal in session (source)

Croatian daily Večernji list ran a bombshell of a story, claiming Slovenia acted in bad faith vis-a-vis the Arbitration Tribunal and had the country’s agent with the court Simona Drenik (full disclosure: pengovsky knows her personally) discuss tactics of Slovenian case with Jernej Sekolec, the country’s appointee to a five-member tribunal. Obviously all hell broke loose, with the Croats going all Captain Renault on arbitration and hinted at bailing out of the proceedings, which, if the three phone records are to be believed (and so far no-one has denied their authenticity), were going well in Slovenia’s favour.

There are multiple aspects to the issue, not in the least why exactly were the records made public now, when they were apparently made between November last year and January this year. But while Croatia is crying foul, the debate in Slovenia immediately took on a holier-than-thou attitude, taking the Zagreb spin at face value and started dissecting the Sekolec-Drenik convo, looking for clues to support Croatian claims. Which are, well, on rather thin ice.

Namely, Croatia claims that Slovenia tried to influence the tribunal consisting of three independent experts plus an arbiter from either side by coaching the national arbiter in aspects that are beneficial to the Slovenian cause. Well, is the Pope Catholic? I mean, both sides have put forward a memorandum stating their case and left it to the tribunal to decide on the merits of claims. The fact that both countries agreed to appoint a national arbiter shows that the conflicting parties wanted to have a) continuous oversight over the proceeding (as opposed to being merely informed of the decision) and b) the ability to at least try to steer the deliberations to their benefit. Sekolec at one point even implies that everyone subscribed to the tacit understanding that the national arbiters are by default biased (duh!) by hinting at the three foreign experts (occasionally?) meeting separately to discuss the issues at hand.

The gist of the story is that the tribunal is due to release a binding decision in December and – apparently – award two-thirds of the Bay of Piran to Slovenia and provide for a short corridor to international waters. Thus a key Slovenian maritime goal would have been achieved, after more than two decades of border incidents and even armed confrontations on land and on the sea. Which explains why the Croatian side went public with the wiretaps only now and not immediately after they were recorded.

For all intents and purposes, this is a major intelligence scoop by Croatian spooks. Despite the prevailing narrative of “amateur hour”, Slovenian foreign ministry takes security pretty seriously. Doubly so in the case of the arbitration. This, pengovsky knows for a fact. So what we are dealing with here in all probability is not two bureaucrats with a frivolous attitude towards security but rather a major breach or even an inside job (conspiracy theories! \o/). Which means that Slovenian spook services will have a lot of explaining to do.

But the main takeaway here is not that Sekolec and Drenik were indeed confabulating (no-one on the Slovenian side denied the authenticity of the recordings and both have since resigned) but that the Croats went public with phone taps at all. Which means either that a) the breach was since sealed (unlikely, given the panic on the Slovenian side) or b) the wiretap had lost operational potential and Slovenia achieved what it wanted regardless. Which left Zagreb only with the nuclear option, to burn their asset and hope the whole thing takes the arbitration agreement with it.

Doubly so when one takes into account the fact that the final decision of the tribunal is to be published in December, awfully close to Croatian parliamentary elections where the incumbent left-wing government is apparently poised to lose to HDZ, prompting PM Milanović to suck up make overtures to right-wing voters to try and turn the trend. Should the tribunal indeed award more than a half of the Bay of Piran to Slovenia, the projected defeat of the Milanović government would most likely turn into a rout, especially since the Blut-und-Boden rhetoric is even more hyped-up in Croatia as it is in Slovenia. So while official Zagreb is professing its shock and innocence, the conclusion here is that the other party is trying to mitigate the disastrous effects a decision, favourable to Slovenia, international credibility be damned.

Interestingly, while Croatian political class is united feigning disbelief (former PM Jadranka Kosor, who signed the agreement with Slovenian then-PM Pahor, called the deal null and void), it is getting a lot of help from Slovenia as well. Not only did PM Cerar and FM Erjavec immediately leave Sekolec and Drenik hang out to dry, the two have been treated to a generous helping of proper backstabbing, either by various elements of the opposition, trying to cash in on the panic or by would-be arbiters who failed to wiggle their way into this story. Case in point by judge at the Constitutional Court and a long-time diplomat Ernest Petrič who saw it fit to delve right into the fray (Slovenian only).

Curiously enough, the only two high-profile individuals who have appealed for calm and warned against buying into the Croatian narrative are the two people who at the height of their game were seen as arch-enemies – Janez Janša and Gregor Golobič

Both appeal for calm and point out that it is Croatia which is in a weaker position, a stark opposite to the prevailing narrative of a Slovenian diplomatic failure. The President, however, who in his capacity as PM signed the Arbitration Agreement in 2009, was  – 24 hours after the crisis erupted – making hay while sun shone. Literally.

But, to be fair, the man did later say he expected the tribunal to finish the job. Whis it apparently intends to do, as per tweet of this Večer newspaper reporter

Just how exactly this will play out, is hard to say. But it does suggest Croatia found itself in a spot so tight, FM Vesna Pusić stated publicly that it doesn’t matter who made the tapes or how Croatia obtained them. Now, this is a bit of a Catch 22 situation for them, as problematic activity was detected by problematic methods and revealing that makes Croatia just as problematic as it believes Slovenia is. Which doesn’t exactly further their cause. Not to mention that wiretapping senior officials is somewhat frowned upon in this day and age. In the final analysis, the releasing of the tapes seems more like a domestic policy stunt to cover their asses if the tribunal really does decide to award a large part of the Piran Bay to Slovenia than anything else. But for all the talk about declaring the agreement null and void, just because they don’t like the result, it is worth to remember that one series which dealt with wiretapping, bad life decisions and tautologies.

A deal is a deal.


P.S.: For a good take on the issue, friend and colleague Nataša Briški provides over at Metina lista (Slovenian only)

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Agent provocateur and an occasional scribe.

12 thoughts on “The Wire: Arbitration Agreement Edition”

  1. There is only one question you need to ask yourself: would you be writing the same kind of post if the shoe was on the other foot – if Slovenia caught Croatians cheating? I don’t think so. You would be irately demanding a halt to all proceedings. There is some kind of doublethink in Slovenia where you seem to think that all means are allowed & justified but only in the singular case if Slovenia is deploying them and if they serve Slovenia well. Here you have the arbiter, a judge, conspiring ex parte to introduce evidence after the evidentiary part of the procesdings has concluded. Jesus.

  2. The answer to your question is: yes, I would. You see, contrary to what you may think or – if I may venture a guess – project on others, I think precious little of this country’s government, let alone of this country as a whole. I love it, but it really is a sorry-ass excuse for a country. Which is why I find the sudden surge in Croatian media heroism laughable.

    No offense, but your media (at least the part we get here), as if on cue, became this huge mouthpiece for the bi-partisan blah-blah where the government and the opposition are trying to out-do each other in who will present a more vigorous posture vis-a-vis the current omnishambles. Now the media – specifically, Večernji list – are asking Qs in Brussels, reading from a government-issued cue card, making fools of themselves and earning smirks across Brussels.

    As for Slovenians, well, as per usual, we try to outdo each other in adding insult to injury. While you guys unite the front to the point of absurdity, we immediattely go for each other’s throats, while the other side makes progress. Luckily for us, your leaders are in this case even more incompetent than ours.

    As for the doublethink: what would happen if it suddenly transpired that Croatian arbiter Vukas did exactly the same thing? Confabulate with the Croatian agent(s)? Lemme guess: suddenly that would become an act of patriotism supreme.

    The same goes for the wiretap. I mean – eavesdropping on an EU co-member and NATO ally? Cute. But OK, I might even get that. Life’s a bitch, it’s a dog eat dog world out there, if you can’t stand the heat, get out of the kitchen, all that jazz. But it is precisely that which gives Croata zero credibility crying foul re Sekolec-Drenik convo.

    They broke the rules. Maybe. The tribunal will decide (but for the sake of the argument, let’s say they did). Croatian spooks listened in, breaking a shitload of rules, written and unwritten ones.

    And you accuse Slovenia of doublethink? C’mon, you can do better than that…

  3. I don’t know what questions those amateurs might be asking in Brussels, but they would never outdo the foolishness of Slovene professionals.
    Let me get straight to your suppositions and innuendo(s) – if it transpired that Vukas was proven doing the same, I think it would be regarded as an act of supreme foolishness, but only in the case the Croatian side was so precisely briefed about the whereabouts of the case as the Slovenian obviously is – and if it was also thus perceived going in favor of Croatia. I invite you to guess why, my next paragraphs are a clue..
    Next – Sekolec and Drenik (and her boss) did break the rules, no maybes (more doublethink from you, I’m afraid). On the other side, MAYBE Croatian spooks listened to them. Maybe Styria just bought somone else’s tapes. It doesn’t matter here what you believe, it only matters what you can prove. (So don’t tell me what we know, or don’t know. I think we know the law.)
    The Croatian side now has incontrovertible proof that the Slovenian government’s agents conspired to influence the process, conspired to unlawfully introduce new & doctored ”evidence” and was briefed in detail on discussions and opinions that were supposed to be confidential and in camera. I’d like to ask you – what state with even an ounce of national self-respect would even consider continuing to take part in a process that was so comprehensively tainted?
    And don’t get me started on the heroism of Slovenian media. They heroically and immediately counterattacked the sole three Slovenian legal experts who dared point out that the basics of any judicial and legal process protected even by the Slovenian contitution were willfully undermined by their own side. It is laughable how hard those ‘impartial’ journalists try to protect their nation’s ”national interest”.

  4. Doctored evidence? That’s just batshit crazy. Cherry-picked, perhaps. But then again, both sides did precisely that, trying to frame their case.

    As for proof, well, that’s for the tribunal to decide. Croatia went into rapid-fire mode in these past few days, upping the ante every time a senior gov’t official opened their mouth. Three days in and Zagreb is already trying to jump ship. Even though the agreement states it is for tribunal to interpret the text of the agreement and possible misbehaviour of the parties involved.

    Self-respect is also a much maligned word here, neither of the countries should be quick to use it. I mean, here we are, quarter of the century into our respective statehoods and we couldn’t solve a tinsy-tiny border issue? Imagine what would happen if there were any natural resources at play. No, really, neither country deserves any respect for their conduct on the issue during their entire scope of existence.

    So you suggest Croatia bought/got the recordings from a third party? Must be the Americans then. Or maybe Austrians. Or maybe it was an inside job. It don’t matter. The mere fact that Croat gov’t will not even discuss the origin of the recordings suggest they’re playing an angle here, just as Slovenian government is.

    And you got Slovenian media coverage plain wrong, so no points for that one. And we didn’t even begin to discuss the fact that Croatia is already well into (unofficial) election campaign, making the bravado all the more undestandable, but no more irrefutable than any other legal claim out there.

    But I’m confused by one thing: if (and I stress the if) it turned out Croatian arbiter Vukas was coordinating with Zagreb as well, why is it that it would only be bad is the result went in Croatia’s favour? I thought it was the actions that bothered Croatia, not the end result per se?

    Or could it be that Croatia never had the intention of honouring the end result if it did not meet its expectations?;) #MeBeingEvil

  5. The Tribunal can’t decide anything authoritatively if its foundations have been compromised. It might have just as well decided then to go through with Sekolec on board, I mean, why not? I don’t think the other arbiters will want to continue though, because I’m sure they don’t like the fact that Mme Drenik was proven to be listening in on their supposedly confidential discussions through someone they trusted and definitely thought he should know better.
    Let me also gently point out that the Croatian govt doesn’t own anything and doesn’t need to own up to anything. The recordings were published in newspapers in two countries, both newspapers having non-croatian corporate owners. There is no buying, selling or ownership of any kind involving the Croatian govt, no matter how hard you try to inject that conjecture here as fact.(Btw, why on earth would it be called on to explain and account for someone else exposing the other government as cheats? Please, do explain) The more important fact is that no one in any slovenian official capacity dared categorically deny they were genuine. While their official actions pretty loudly confirmed they are nothing but…

    So much doublethink clouds your reason. The hypothetical unearthing of those hypothetical Vukas’s shenanigans would only be materially bad if the result was going in Croatia’s favor because, obviously, it would give the other side the perfect opportunity and plausible basis to get out of a badly developing and unfair situation. To do damage control before the intended damage was done.
    And that is precisely what Croatia is now doing. It was warned by Erjavec in a timely fashion, wasn’t it?
    If only this leaked AFTER the award, your media would be laughing so hard, sardonically, at their Croatian colleagues’ anguish thinking how great the home game was played and how successfully the Cros were played by Slos. And how poor naive Cros now have to ‘honor the end result’ anyway, ”they did sign up to it, poor bastards”. ”All is fair in love and arbitrage”, they should have known!
    Wouldn’t they?

  6. Let me also gently point out that the Croatian govt doesn’t own anything and doesn’t need to own up to anything.

    Riiight. Those recordings were probably brought to Croatian media by rainbow-farting pink unicorns.

    As for other members of the tribunal being uncomfortable, you’re spot on. Because the question one should be asking, whose convos were tapped as well.

    The Tribunal can’t decide anything authoritatively if its foundations have been compromised.

    Quite au-contraire. I refer you to Artice 3, paragraph 4 in connection with Artice 10 of the Agreement.

    While I fully understand the Croatian need to get out by any means possible, this is precisely what the Agreement was designed to avoid: that a party, unhappy with the result would sabotage its implementation. Which is what Croatia is doing right now.

    I’m not saying Slovenian side didn’t fuck up. It clearly did. But both parties have agreed beforehand to let the tribunal decide just how big this and any other fuck-ups are.

    Also, if Croatian side is so sure of its case to dissolve the tribunal, why not then make a motion to the tribunal to do so. Surely, a 4-1 vote in favour is guaranteed, no?

    Oh, and BTW, saying that convos with national agent are only bad if they result in a favourable decision only exposes the double standards you apply to the issue.

    And just a protip: playing the victim won’t help. I know the usual mantra in Croatia is that Slovenia is constantly fucking it over, but guess what. The mantra is exactly opposite in Slovenia. Conclusion? The victim argument disappears in a puff of logic.

    We really should grow up.

  7. @Tomislav: Is it true that the Croatian arbiter lived/stayed at the Croatian embassy? If so, do you in all sincerity believe that he did not talk to anyone while there?

  8. @ pengovski How can the Croatian side be ”unhappy with the result” when there is no result yet, and therefore, no implementation? 🙂 (Thankfully) It is unhappy with the process that is now undermined by a few sorts of illicit & (il)legal behavior.

    For the conversations being bad – I’m not applying double standards, I’m applying Slovene (and your) standards. Almost no one in Slovenia thinks and even fewer dare mention that the conspiracy is wrong, if anyone does, they are immediately confronted in person or online (Sancin – ”maybe rules broken” > Vasilika reprogrammed overnight, now she’s cool, Miha Pogacnik – ‘traitor’, I fret for Verica Trstenjak after today’s article of hers in Delo). It’s like the only thing of consequence is that it is so cruel and unheard of that they were caught conspiring.

    Is it true that the Slovene now ex-arbiter went to Slovenia and, moreover, visited Simona’s home, as he said on the recording? He could have also personally briefed Erjavec, for all we know, we definitely know now he had no scruples nor integrity as a judge, which he was, lest you forgot. Now him briefing Kahrl is unproven, as Vukas talking to anyone, but we do have things we know for sure. And that is that Jernej conspired ex parte with no less than the agent in the proceedings, practically the only person he was absolutely and undoubtedly and totally prohibited from conspiring with. And tainted the whole process.

  9. I haven’t because I tried to make you understand something on your own. I guess I’ll have to be direct. And it was a question, not questions.
    Vukas could have lived/stayed in Croatia if he wanted to. I don’t know really where he resides, but nothing forbids his staying in the Croatian embassy if that is where he is. He can talk to anyone there, he just has to be careful about what he is talking about, and who with exactly, and who could be listening. It seems thus far he has been smarter than, let’s enumerate, a foreign affairs minister of an EU member state and a formerly respectable judge.

  10. @Tomislav: Would advise you to read more carefully. I posed two questions. I guess I’ll have to be direct, too. I sincerely doubt that impartiality can be expected either from the Slovenian or from the Croatian judge in this matter. I am quite certain that this is clear to the Slovenian side, to the Croatian side and to the international community. Which goes along with the composition of the court, i.e. one national judge each and a majority of three international judges who apparently at times met on their own, without the two national judges. Now if the Croatian judge indeed chose to stay at the Croatian embassy, it would be highly naive to believe he had no particular motive to stay there other. Furthermore, judging from the news in Slovenian media over the past couple of days it would appear that Slovenian intelligence services have been successful in a feat mirroring the one with the consequences of which we are dealing right now. This holier than thou attitude might crumble in a fantastic glory quite soon if it hasn’t already. With Slovenia appointing a highly esteemed international judge in lieu of its national judge, Croatia barely has a foot to stand on to be screaming bloody murder. Beginning to look rather foolish, I’m afraid.

  11. @dr.filomena
    You don’t expect me to debate your hopes, dreams and other hypotheticals, and to attempt to prove that something didn’t happen, do you? It is very childish and I won’t engage in it.
    Besides, you are missing the basics. Nobody expects the national arbiters to be impartial. It is expected that they act lawfully when they withdraw to deliberate in camera – to keep discussions in confidence, not to mess with evidence and not to conspire with the parties, brief them or be briefed by them.
    I hope you realize, and I hope the court will soon refrain from further discrediting itself (they are serious people) by insisting on continuing, that the arbitration is publicly and politically indefensible in Croatia now, as the public has been notified not only of an unfavorable award in the offing but also of some unsavoury methods employed in reaching it. The only viable method that could keep the process is a total reboot right from the start, redoing the whole process with new arbiters, but you can’t blame Croatia for trying to use this moment of maximum leverage to try to bring the matter to the ICJ, which the Slovenian side is trying to avoid at all costs, knowing fully that its teritorial demands cannot be LAWFULLY met. Slovenia did use its moment of maximum leverage to force Croatia into arbitration, didn’t it? Croatians are not ”hlapci” either.

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