Responses to the meeting, as well as to the statements that followed it, were sent to a small circle of recipients. Nobody wanted great number of public matters or even debates. It was the first days of last year’s June. The host was the Croatian Prime Minister Zoran Milanović, and his guest the Montenegrin Prime Minister, Milo Đukanović. They discussed the announced oil and gas exploration in the Adriatic Sea. We shall take all pragmatic steps so as to start exploration of sites as soon as possible and to ensure they will not be hindered by disagreements over the interpretation of the border demarcation line at sea. Thereat, Milanović opted for arbitration as a suitable way of resolving disputes between states and added that the states must respect and accept the decisions of the arbitral tribunal no matter what, and that Croatia would do so too after the decision of the arbitration tribunal regarding dispute with Slovenia.
No, that would be a new big mistake, was the content of said responses, as the resolving of border disputes by arbitration would become a model not only for the dispute with Slovenia in that way, but also with all other neighbours, primarily with Serbia. This was followed by vacations, and in late autumn of 2014 the dilemma reappeared.
Two announced tenders for oil exploration were the reason back then. Milanović responded immediately and warned the government in Podgorica that it had included the area around Prevlaka peninsula, which Croatia considers its territory, in its tender. However, Montenegrin Foreign Minister, Igor Lukšić, responded that an interim agreement on the demarcation of the Prevlaka peninsula covers only the strap of 12 nautical miles, and that his country has the right to invite tenders deeper into the open sea.
It was just an occasion to rethink arbitrations. A key argument for supporters was that the very model of the arbitration agreement as a way of resolving outstanding border issues was damaging for Croatia. Also, that the arbitration agreement with Slovenia contains a particularly dangerous part of the agreement on the decision of the arbitrators on contact with the open sea.
Apparently some kind of indications had already existed back then, but it does not mean that they were in any way stated by the Croatian member of the tribunal, Dr. Vukas, that the arbitration court would respect both the principle of fairness and the good neighbourly relations requirements in deciding on the Slovenian and open sea contact. So, they would indeed decide using the principle of fairness on contact with the open sea. Croatian legal experts warned the government again, not so rough and with threats of suspension as the Government of dr. Ivica Račan, that they must not allow the possibility that judges decide based on their own decisions about what is fair. They also added that the only right decision-making place is only and only the International Court in The Hague, which could also respect the principle of fairness, but only in the case when so authorized by both countries in the dispute.
This was enough for a different decision.
The Croatian government adopted the agreement on ways to withdraw from the arbitration process with Slovenia most likely at the end of 2014.
However, it was only the first step. To be specific, the agreement with Slovenia was not crucial, but the accepted way of resolving outstanding border issues through arbitration was crucial and decisive. And a big chance to become a model for solving Croatia’s border issues with all neighbouring countries.
So, what decisions will follow in the coming months?
To be able to define them, we have to go back. First, in 2003. One of the discussions at the Venice conference back then was the right to declare an exclusive economic zone or economic zone in the Adriatic Sea. The intention of such zone proclamation was announced by Croatia. Its explanation was that such decision was of first class economic importance for the neighbouring country, that it was legally entirely uncontroversial and that there was no statute of limitations. The estimation of the proposers was that Croatia, based on all principles of international law, could declare its direct and exclusive economic zone and that it was followed by the issue of its borders or demarcation with neighbouring countries. The proclamation on the Venice conference was questioned for this clause, since such a proclamation could determine in advance undetermined or disputed line between Croatia and Slovenia. It was also asked whether such zones even make sense in the semi-closed Adriatic Sea. However, this question echoed somewhere past. Croatian Parliament determined the validity of such declared zone only for countries which are not members of the European Union.
At the Venice conference, the Slovenian diplomacy opposed the declaration of such economic zone. The fact is that Croatia rejected all bilateral agreements already reached with Slovenia, first the Drnovšek – Valentić agreement, then the Drnovšek – Račan agreement, and any other agreements reached by the governments. It was therefore appropriate to begin to create conditions for solving the border issues by legal means proposed then by the highest representatives of the Croatian state and arbitration. Therefore, an agreement was reached with Italy on succession of epicontinental zone in the Adriatic Sea.
The Slovenian parliament adopted the Maritime Code amendments during the government of Janez Janša. It was not until all of this that made the negotiations on a compromise between the two exclusionary proposals enabled: Slovenian on the continuation of bilateral negotiations and amended Croatian on the International Court in The Hague as the only option and way of resolving border disputes.
What is forgotten today and what must be repeated is that the arbitral tribunal, as a place of decision, represented a compromise solution on which both countries agreed.
The Croatian government is now seeking for a new model for solving border disputes. The most immediate and in fact surprisingly open about it was Jadranka Kosor. It is necessary to start from point zero and opt for a different model, which is only one, and that is to appoint the settlement of disputes to the International Court in The Hague.
However, it is still only one part. Croatia needed a unilateral decision to withdraw from the arbitration agreement as a necessary requirement for the proclamation of an exclusive economic zone within the delimitation of the sea. Former deputy of the Croatian Parliament, Dr. Tonči Tadić, adds quite directly that after the proclamation of such zone in the Adriatic Sea, the international waters will no longer exist, that they start only around Otrant only because Albania and Montenegro have not yet declared such a zone. Therefore, they defend the thesis that it is first necessary to declare economic zone and only then start the agreements with its neighbours on sea border.
After Croatian accession to the European Union, a matter of moment of proclamation of economic zone, written some time ago in Croatian Law Journal, was only a political question.
And this will be the next step. A step that will follow the current decision on arbitration and its nullity, which will also probably be followed by an agreement with the Republic of Montenegro on the adoption of a similar decision and the resolution of other outstanding issues before the International Court in The Hague. With the support of the American administration and successful lobbying, primarily in the capitals of Northern Europe, which respect the Court more than the arbitration, it could become a better model for solving complicated border disputes between Croatia and neighbours.
Therefore, I believe that the Slovenian policy would have to devote in the coming weeks all its attention to a meeting of the so-called Berlin process, which will be held in late August in Vienna. German Chancellor Angela Merkel will participate at the meeting as well. One of the topics of the meeting will be the issue of borders in the region.
That will be an important decision-making place, also on arbitration. It would therefore be good and necessary to collect and convincingly present the importance of the reached compromise on arbitration between the then government of Borut Pahor and Jadranka Kosor and also achieve, with appropriate measures, a political support for such a high meeting for the arbitration models, therefore, also for the principle of fairness and respect for history as a good way to solve all other outstanding border issues in the region.
Borut Šuklje 