SLEEPING WITH PENGOVSKY

Just a quick update on the Pahor-Kosor agreement. After Slovenian PM Pahor took some serious flak for making the deal (words like “high treason”, “complete failure” and “utter defeat” were used”), the very same thing is happening in Croatia, where words like “deception”, “lies” and “betrayal of vital national interests” were used.

Symptomatically, both PMs are being vocally criticised by their respective opposition. In Slovenia, the People’s party (SLS) and the nationalists (SNS) are saying that the deal did not go far enough and that it basically concedes territory, while in Croatia, which finds itself in the early stages of a very hot presidential race, the highest ranking political casualty to date is Davorin Rudolf, who resigned as chief negotiator on the border issue. He stated that the second proposal by EU Commissioner Olli Rhen (the one which is stipulated in the agreement as the starting point for continuation of negotiations) is extremely bad for Croatia and that he will have nothing to do with it. Curiously enough, he resigned yesterday, was then reportedly persuaded by PM Kosor to become her personal advisor on the matter, but today he publicly stated that he will not accept any position vis-a-vis the issue. On the Croatian political front the Social democrats (SDP) and Democratic Union of Istria (IDS) say that the deal went too far and that it basically – concedes territory. Sounds awfully similar to what is being said in Slovenia. Go figure.

On that note, let it be known that although it criticised PM Pahor heavily, Janez Janša’s SDS abstained from the vote on lifting the blockade of Croatian EU negotiations. I guess that they are a bit unsure about how to play this thing. They know that Pahor went out on a limb, but voting against and then being proved wrong would be highly embarrassing, besides, they can’t afford to be made look uncooperative after they nearly derailed Croatian NATO entry by defending their creative accounting techniques earlier this year.

Pengovsky doesn’t know much about how things stand in the ruling coalition in Croatia, but he has it on good authority that the ruling coalition in Slovenia only grudgingly OK’d the broad outlines of the deal. There seems to be precious little enthusiasm for the agreement on either side of the border. Afterall, even pengovsky was unsure about what to make of it.

But the way I see it, if both of them are being called names for making the deal, then they must be doing something right.

Yesterday Slovenian parliamentary committees for foreign relations and European matters voted in favour of lifting the blockade of Croatian EU negotiations. In a joint session which lasted for several hours PM Borut Pahor explained the details and the mechanics of the deal he made last Friday with Croatian PM Jadranka Kosor.

As you know, at the centre of things is a letter PM Kosor sent from Pahor’s office to Swedish PM Fredrik Reinfeldt.There were conflicting accounts as to what was written in that letter, especially with relation to the exact wording and the effect it will have on past attempts to settle the dispute, most notably the Drnovšek-Račan agreement. Yesterday PM Pahor’s office finally released the original letter and put a stop to speculations. It is clear now. The Pahor-Kosor agreement nullifies any prievous agreements as well as unilateral actions. Therefore, there is no more Drnovšek-Račan agreement.

The important bit of the letter with the wording “documents or actions taken unilaterally” (source)

Things, however, were happening at lightning speed. Just as Kosor’s letter hit the mailboxes and caused a modest-to-severe elevation of some people’s blood pressue, a press release by Croatian foreign ministry was published (Croatian only), saying that the bottom line of the agreement indeed is that the dispute will be solved along the lines of what EU Commissioner for enlargement Olli Rehn proposed just before Croatia walked out of negotiations.

And last night I stumbled across Swedish PM’s reply to Jadranka Kosor (again, Croatian only), where he informs her that a special accession conference will be hels as soon as 2 October, because Slovenia informed the presidency that it has no more border-related reservations against negotiations with Croatia. Furthermore, PM Reinfeldt wrote that it is understood that the dispute will either be solved by arbitrage or by direct negotiations. And finally – and this is the most important bit – he writes that both letters (Kosor’s original letter and Reinfeldt’s reply) will become an integral part of accession documents.

Reinfeldt’s letter is of astronomical importance. It clearly states that the only way a deal will be reached is either by arbitrage or direct negotiations, which means that the International Court in the Hague (which was Croatia’s favourite venue of solving the dispute) is off the table. It was widely held that this particular court would have ruled completely in favour of Croatia, because it has little history of coming with outside-of-the-box solutions, which is clearly needed in this case. And secondly. By becoming an integral part of the negotiation documentation, both letters will also become part of the accession treaty, just as the Croatian maritime documents which started this whole thing.

So what we now have are established broad rules of the game which are not inherently bad for Slovenia nor are they inherently good for Croatia. And that is good. It is now becoming clear that both sides conceded a lot in the last few months, ehich is why the deal doesn’t seem so raw any more.

Pengovsky obviously was not the only one scrathing his had and going “asphinchtersayswhat?” after PMs Pahor and Kosor struck their deal on Friday. Neglecting for the moment the cat-calls and accusations of high treason, which predictably originanted on the more, shall we say, territorially-minded parts of Slovene political right wing (specifically, the Nationalists and SLS), a lot of questions were raised during the weekend and some of them went along the lines of my Sunday post

PM Borut Pahor on state television (source: ibidem)

Things heated up especially after Croatia hailed the agreemet as a triumph of their diplomacy and started selling it by saying that “Slovenia finally realised the error of its ways”. As you know by now, the only thing worse than a Croat saying to a Slovene that the latter is wrong, is a Croat saying that the Slovene admitted that he is wrong (it works the other way around, too). As a result, PM Borut Pahor went on live TV on Sunday, which is not your usual time for prime ministerial visits to state TV network, and explained the whole thing so that a four year old child could understand it.

Unfortunatelly, in a true Marxist manner there were no four-years-olds present, but let me try to make head and tail out of what was said:

Borut Pahor said that the key to the whole thing is the Croat concession that both sides will continue where they left off on 15 June 2009. To jogg your memory a bit, that is the date wen Croatia walked out of negotiations led by EU Commissioner for Enlargement Olli Rehn. Accoring to Pahor, Rhen’s final proposal on the method of solving the dispute proposed that an ad-hoc panel of arbiters would decide the issue, keeping in mind the fact that Slovenia needs access to high seas and that the deal must be ratifired before Slovenian parliament votes on Croatian EU entry.

This is of course very much different from the text of the Pahor-Kosor agreement, where it is stipulated that the method od solving the dispute (not the solution itself) will be agreed upon until the Slovenian parliament vote. And furthermore if the solution were to include some form of direct access to high seas, then the documents which Croatia included in the negotiation process will indeed have no effect on the border question, a point which pengovsky was very anal about even on other blogs.

However… Croatian PM Jadranka Kosor also did some ‘splainin’ and she said that nothing beyond the text of her letter to the Swedish EU presidency was agreed upon. I.e.: there are no deals under the table and Rhen’s proposal was not part of the agreement.

So, confusion looms. Technically, both Pahor and Kosor can be correct. It could be that Pahor is simply connecting the dots and saying “if we do A, than B necesarily follows”. But this may turn out to be a gamble of cosmic proportions. Because if we don’t have a deal on the border by the time Croatia concludes the negotiations, or – even worse – if we don’t even have a deal on the method of forging a deal, or – worst of all, but not at all impossible – if Croatia goes bad on its word, Slovenia will be out of options and will be faced either with swallowing hard and ratifying Croatian EU entry or derailing the entire enlargement process. None of which sounds like an apetising option.

The only thing going for us right now is the fact that Croatia will be faced with two more blockades immediately after Slovenia withdraws its objections. The Netherlands is blocking negotiations on judiciary, because Croatia is not fully cooperating with the Hague Tribunal, while the UK apparently has misgivings about Croatia (not) fighting the corruption and is keeping that particular chapter shut until further notice.

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.