First, there was an announcement of a new large complication between Slovenia and Croatia, then an urgent press conference of the Croatian Minister of Foreign Affairs Vesna Pusić and shortly after that news of convening an extraordinary session of the Croatian parliament with a single-point agenda.
All these acts together, with also urgent session of the Croatian government, were intended only to establish a political need for the decision on the grounds of suspicion or even rejection of the ruling of the Court of Arbitration in The Hague. That is, institution chosen, determined and given mandate by two countries through mutual agreement, to solve the long-standing dispute on border between two countries.
It is necessary to find a reason for such a radical decision, for intervention in the work of the arbitral tribunal. The fact is that it is a very unusual and almost unknown manner in the process of issuing a ruling. First, there was an attempt with a comment of, the truth is, quite unnecessary appearance of Slovenian Minister of Foreign Affairs at one of the local televisions where he explained about his feelings on how well we stood in the judges’ assessments. The principle of the manner of work of judges was not respected this way, to say at least, as well as established way of communicating decisions, and that the commenting on the work of the arbitral tribunal and its upcoming decision was unacceptable.
However, this was not sufficient reason, also because the court rejected, on the complaint submitted by the Croatian side, the possibility of any impact on its decisions, including the possibility of information leakage. The court warned both sides on dignified acting and seriousness when mentioning the institution.
It seemed that the two countries would wait for the final decision of judges after this complication.
And this is where the complication we are witnessing and following these days really starts.
Well, the reason is not only the ruling on determining the border line between Slovenia and Croatia. No, the reason is in the mode of the Arbitral Tribunal work itself and the example which has become a code of conduct for resolving outstanding border issues of Croatia with all neighbouring countries. With Serbia, Bosnia and Herzegovina and Montenegro. The decision of the Court of Arbitration in the Slovenia – Croatia case would be only a confirmation of the thesis that the work of the arbitrators is an acceptable way also for planned arbitrations with the aforementioned Croatian neighbours.
Nothing happened overnight, nor did the Croatian government receive a letter in the mailbox from an unknown friend with information collected by tapping the Slovenian member of the Arbitration Court and high official of the Ministry of Foreign Affairs Simona Drenik. On the contrary, it was a planned project with two objectives: the relativization of the proceedings, and second, ending of all intention on new arbitration assessments for the outstanding border issues with neighbouring countries.
First, immediately after the beginning of the arbitration with Slovenia, an influential professor Davorin Rudolf questioned the plans to resolve the same border dispute with Bosnia and Herzegovina using the same legal tools. His question was whether it was worth to endanger the border agreement signed by heads of state Franjo Tuđman and Alija Izetbegović and start a new dispute with neighbouring country because of two completely empty mini small islands, Veliki and Mali Skoj and cliff Lopata. His answer was confirming, with the argument that it was necessary to think about the consequences caused by such a move in solving other border disputes, even with Slovenia. Rudolf continues that these islets and cliff are really entered into the demarcation between republics of 1974, however, that this is just a consequence of grossly groundless intervention of an authorized Bosnian surveyor, not noticed by his Croatian colleagues and all subsequent negotiators on the border including Tuđman’s experts. Professor Rudolf concluded that all Croatian agreements on maritime borders with its neighbours are bad, because under-prepared negotiators and politicians with insufficient patriotic feelings had been negotiating all this time. The end was that Croatia has the most unfavourable agreement with the Republic of Montenegro, which is a real disgrace, because it’s not just about the sovereignty over the Prevlaka peninsula, but also about the sea border and the legal regime along the Prevlaka.
This was followed by a second move. In May 2012, the notable academician, Chief Professor Vladimir Ibler, published a discussion named Arbitration Agreement between the Government of the Republic of Croatia and the Republic of Slovenia. In this text, the academician defends a thesis, I summarize, that one can hardly overlook the transparency of intentions, that the arbitration agreement is intended to facilitate fulfilment of the demands of one side at the expense of other. He is convinced that this was a clear territorial claim at the expense of the integrity of the Croatian state territory.
A similar argument stated by Professor Rudolf in the Montenegro case.
Approximately one year ago, Croatia determined, in spite of the signed agreement with Podgorica, the border demarcation at the open sea, in accordance with the principle that the sea border is determined from the end point on the land. Interim agreement of 2002, and I followed its preparation as an ambassador quite directly, Croatia thereby sees as final, and overlooks that both countries are preparing for the process of arbitration on the border. Croatia actually declared an epicontinental zone. The dispute became hot again when the Croatian Prime Minister Zoran Milanović accused Montenegro that they included the area around cape Prevlaka for the exploration of oil and gas. It is the sea surface of about 1800 square kilometres.
I followed the speech of the Croatian Ambassador Mrs. Ivana Sutlić Perić in Podgorica In May of the current year. She rejected a possibility to resolve outstanding border issues with the help of international arbitration, because it was supposedly expensive and again promoted Interstate Court in The Hague as the trial place.
Obviously, there was a change of decision on the arbitration court as a place for resolving outstanding border issues with neighbouring countries in Zagreb.
In late 2012, the then Croatian President Dr Ivo Josipović, lectured on defence and foreign policy of Croatia on one of the private Zagreb universities. He spoke also on border disputes. In particular, he mentioned the Republic of Serbia, where primarily demarcation on the river Danube was an issue, where the Serbian side defends the border line in the middle of the river, and Croatia demarcation by municipalities. It is approximately 145 km, including Vukovar and the Island of Šarengrad, which two state commissions have been trying to resolve without success for twenty years already. Dr Josipović repeated at a lecture the thesis of which he spoke at a meeting of heads of state of the region on Jahorina earlier. He said back then that Croatia had to start negotiations on arbitration agreements with Serbia, Bosnia and Herzegovina and Montenegro based on then internationally promoted and respected way of solving the border disputes, the agreement with Slovenia.
The Republic of Croatia has adopted a new strategic decision. Arbitral tribunal is no longer a place of decision on outstanding border issues. I am not convinced that the official Slovenian foreign policy registered this change. Zagreb sought reason for relativization of already done work in the case of Slovenia – Croatia ruling, and rejection of all already reached agreements on arbitration with other neighbours.
What followed was an action, as they would say in the slang of the great master of spy novels le Carré. The apartment or telephone or official office of senior official Simona Drenik were under surveillance. And then the footage waited. The only thing necessary was to choose the right moment.
We have been following these days the development of the story.