We had dinner with Dr Janez Drnovšek in the restaurant “Bevanda”, after his visit to Belgrade. The owner worked in the then very famous restaurant with the same name in Opatija before bloody Yugoslav wars, and went to Belgrade with the war consequences. And he knew how to prepare fish. This is how it was supposed to be also that June evening in 2002. During the dinner, the two of us talked as usual, daily things about this and that. Somewhere between my fish and his beans, he asked if I remembered the Opatija restaurant with the same name and negotiations about the sea and the land border with the then Croatian Prime Minister Dr. Nikica Valentić. Then he just added that not even the agreement signed with the new Croatian Prime Minister, Dr. Ivica Račan, seems to make things go well.
In late August of the same year, I visited Drnovšek, at his home in the urban centre Murglje, in Ljubljana. He commented with concern about new complications and provocation in the Piran Bay. He showed me the letter sent to him by Ivica Račan. We talked primarily about the part of the letter where the Croatian Prime Minister said for their agreement, referring to Drnovšek – Račan agreement, signed and ratified, that there was no political will in the Croatian territory, therefore it could not be a platform for further bilateral talks. He proposes a new potential solution in the second part of the letter. I quote: “There is a strong political consensus in the Republic of Croatia on international arbitration as a tool for resolving outstanding border and other issues between the two countries”.
Today, after all yesterday’s discussion in the Croatian Parliament and the government’s decision to withdraw from the proceedings and the ruling of the arbitration tribunal, aforementioned Račan’s letter becomes important again. The president of the Croatian government proposed arbitration for the first time and as the first to propose it, in the early fall of 2002.
Drnovšek was against. He estimated that they should continue with already signed agreement and look for possible minor changes.
Of course, he was aware of the whole series of accusations that Croatian politicians and lawyers threw at Račan. Nevertheless, even with the rudeness of confrontation, Drnovšek was convinced that it was possible to keep the agreement. It would be a political proof that the states can find the necessary solutions by themselves. At the time of dialogues on European Union membership, important for both countries. The invitation from former long-time foreign minister Dr. Mate Granić, for the Croatian government, as he said, to decidedly and immediately reject the signed agreement with Slovenia and offer obligatory international arbitration, did not seem important to him. We talked more about the letter sent to the Croatian president in May 2001 by another former foreign minister, Professor Davorin Rudolf. Primarily the part of the text where politically influential professor emphasises that any such resolution of the maritime border with Slovenia would be a precedent for maritime border with Yugoslavia, that is, Montenegro. It is worth quoting Rudolf’s letter here. The conviction that the boundary line in the Bay of Kotor would be possible, a straight line from cape Konfin to cape Oštro had been already expressed in Montenegro, which means that Croatia would remain with only a narrow strap of sea, directly near to Prevlaka coast, which was quite similar to the Slovenian demands in Piran. End of quote. Rudolf then asks Račan to immediately withdraw from the signed and ratified agreement with Slovenia and proposes, among other things, the arbitration resolution on border dispute.
I personally found aforementioned letter, also with information about a very unpleasant and excluding meeting of Croatian professors of international law with Račan, critical.
Also because of the comparisons stated at the same time that the Croatian, this is how they named it, precedent in the agreement with Slovenia would pave the way for similar proposals in the event of bilateral agreement with Bosnia and Herzegovina.
I can recall the smile of both presidents, Dr. Franjo Tuđman and Alija Izetbegović, when they announced that they had signed an agreement on border, during the first meeting of the Stability Pact for South Eastern Europe. Later, Tuđman’s signature was not very significant. When the Croatian government wanted to send, I repeat again signed agreement for ratification, a new key argument appeared that Croatia would abandon a part of its territorial sovereignty with this act. Proposals for some kind of arbitration that should replace what was signed later appeared here too, but they also slowly faded, at least in the judgment of the Director of the Adriatic Institute of Croatian Academy of Sciences and Arts, Vladimir Đuro Degan, that the signed agreements would be legal in arbitration too.
Drnovšek believed that Slovenia and Croatia can find a solution to the outstanding border issues after negotiations that had lasted for more than ten years.
Therefore, he continued dialogues with President Stipe Mesić. He actually certainly discussed this with him in 2000. We were his escort with Dr Dimitrij Rupel at lunch hosted by Mesić at the Presidential Palace in Pantovčak. A few years later, on 9 April 2005, the decision of the Croatian head of state was final. The agreement Drnovšek- Račan is not acceptable for Croatia, therefore, insisting on it does not make sense, regardless of who will have power in Croatia.
Drnovšek nonetheless insisted. The signed agreement, having the institutions of the two countries behind the signatures could not simply be erased. He also emphasized that the agreement Drnovšek – Račan reached the possibility that solves both land border and sea border issue. And that precisely this would be the most important argument of Slovenia in the case of arbitration. He understood that dialogues about the border were closed with precisely this agreement, that the agreement was confirmed by the two governments, and that the agreement with the Prime Minister Valentić was abandoned by Croatia in its concluded form, even after negotiations lasting several years. He believed that they could find that negotiating space with Mesić despite everything that would allow its final confirmation with, he said, new, minor changes in relation to the concluded and signed agreement.
After the negotiations between Janez Janša and Ivo Sanader, a new twist came.
And that was the agreement between Prime Minister Borut Pahor and Prime Minister Jadranka Kosor. The agreement was welcomed and presented as a successful possibility of solving outstanding border issues between the countries and in the region. In September 2009, the agreement was welcomed by Academician Rudolf, then advisor to Kosor, with the note that if someone wanted to renew the agreement Drnovšek-Račan today, it would only mean a political suicide, and added almost casually that Croatian border disputes with neighbouring countries must be resolved before an international court precisely because of it.
Just one year later, in March 2010, both notes become critical. Croatian Academy of Sciences and Arts organized a discussion titled Challenges and Prospects in Maritime Code and the Law of the Sea – the Interests of the Republic of Croatia. This was precisely the first time where an opinion that the expected arbitration would only follow the contents of the Agreement Drnovšek-Račan was expressed. Also a lawyer, Davor Vidas, added that it was a political improvisation, not a compromise.
However, it was many years ago. And there was still a long way to the decision of the arbitral tribunal. With the approach of arbitral decision, the estimates of influential Croatian international lawyers have radicalized. First, that the Arbitration Agreement was written following Slovenian wishes, then in 2012, that this recognized the right of arbitration judges to, and I quote: “force us to abandon indisputably Croatian sea and offshore, and that such method of resolution will have consequences to ways of resolving outstanding border issues of Croatia with other countries.”
Yesterday’s discussion in the Croatian Parliament politically confirmed it. However, with the essential difference to all earlier cancellations of negotiations with Slovenia. The difference is that key European and American actors attended the Arbitration Agreement, concluded by Borut Pahor and Jadranka Kosor, and also that the agreement and complete documentation and all arguments of ten-year history of negotiations between the two countries became the property of the international court of arbitration.
Drnovšek spoke in detail about that, as a possibility that it would no longer be possible for someone to simply say we suspend the negotiations, as it was a repetitive practice of Croatian politics, that night in the restaurant “Bevanda”.
Borut Šuklje 