Arbitration Revisited

The call received by the Slovenian and Croatian governments to take part in the yesterday’s hearing in front of the permanent Court of Arbitration was responded with a momentary and expected response that the representatives of the government in Zagreb shall not participate in the hearing. Actually, the Minister of Foreign Affairs Kovac, in the response, only repeated what was said during the last parliamentary elections, then as the international secretary of the largest Croatian opposition party. That the Croatia is out of the arbitration, that is, it is no longer a party to the process, and that, subsequently, rejects the invitation of Arbitrators. At that time his arguments were completely identical to those promoted by the Prime Minister and the President of the largest party in the Government Zoran Milanovic. Only, then Prime Minister and current Representative in the Parliament added a warning neglected that, in this case, European Commission is involved in matters that are none of its concern. Therefore, it should not burden itself unnecessarily and out of its jurisdiction, including the hearing of the result of arbitrary agreement. He concluded repeating the official political parole that the arbitrary agreement no longer exists for the Republic of Croatia, and that a new path shall be found for agreement with Slovenia and that we should start over.

The Prime Minister of Croatian government at that time, Milanovic, did not mention the European Commission and statements on the operation of the Court of Arbitration by accident. Namely, he knew very well that the active presence of European institutions, with the preparation and signing of the Arbitration Agreement is the weakest link of its argumentation on specific and sudden exiting from the obligatory agreement on solving long term border dispute between two countries.

Late President Dr. Janez Drnovsek, on one of its meetings with his colleague at the time, Croatian President Stipe Mesic, in November 2005 in Rogatec, somewhat summarized the key points of all past attempts to solve the border dispute between two countries. His argumentation and Mesic’s response even today, after the middle of the visit of the Slovenian Parliament President Dr. Milan Brglez in Zagreb and with the absence of Croatian representatives in front of the Court of Arbitration, raise interest.

Drnovsek’s two key thesis were that it would be best to solve open border issues through the bilateral agreement, in direct negotiations between Slovenia and Croatia. A political and diplomatic effort of ten years was dedicated to it that led to an agreement acceptable to both parties, that was rejected by the Croatian side at the end. Therefore he suggested Mesic that both countries decide that there are no more negotiating options, that they do not see the path further in bilateral negotiations, for all possible options of the solution were analyzed in the last fifteen years, reached a sound agreement Drnovsek-Racan, that was rejected again and that it would be reasonable to seek aid from a third party, that is, decide on Arbitration.

The response came at the end of June the following year. The Government of Croatia, of Dr. Ivo Sanader and the strongest opposition party, of later Prime Minister, Milanovic, feel that all options of bilateral agreement are exhausted on open issues with Slovenia and therefore the proposal on Arbitration is the new official Croatian initiative.

Drnovsek continued meeting with Mesic until the sudden cancellation of the last meeting that was to be held by mid February of 2007 in Bjelovar. Drnovsek knew that the repeating circle of initiated and terminated negotiations just at the very end and constant proposals on new beginnings should be stopped. Including the cancellation of Bjelovar talks. He started a new period of waiting for the new Arbitration proposal. Two years later, after intensive negotiations, it was signed by Prime Ministers at that time, Borut Pahor and Jadranka Kosor.

Now, at the very finalization of the operation of the Court of Arbitration and announcing the decision, it is clear that the Republic of Croatia cannot accept the decision of the Permanent Court of Arbitration on the border dispute with Slovenia. Primarily because it would become an instrument for solving border issues with all neighboring countries, that Croatia does not want.

The intent of Republic of Croatia is partial resolution of border disputes with each country separately, and above all, with different rules of issue solving for each country. An example. If principle shall be valid for setting borders on the river Mura, then, opposite principle is the desire regarding the border setting on river Danube with Republic of Serbia. The same one that is rejected as inappropriate in the discussion with Slovenia.

Additionally, there are other issues with the Arbitration. The task of the Court is to set the exit to the open sea for Slovenia. Recognition of such decision would include the recognition of the principle for determining similar dispute, in determining exiting of Bosnia and Herzegovina to the open sea and would cause direct continuation in solving the border dispute with Republic of Montenegro. Let’s stop at these two reasons Croatia suddenly canceled Arbitration Agreement with Slovenia signed and ratified by both Parliaments.

Croatia evaluated that it was better just to repeat the established and familiar diplomatic principle on setting the border line negotiations that are canceled as a rule at their very end for one reason or another. This happened with negotiations with Slovenia, Bosnia and Herzegovina, and even Montenegro. Negotiations with Serbia did not really start.

They missed the key difference in the Arbitration Agreement related to all past negotiations with Slovenia. It was stated in the preamble of the agreement signed on November 4th 2009. Quote.

The Governments of two countries agreed “considering the fact that they have not resolved an issue in numerous attempts regarding the border at land and sea and with the approval and mediation of the European Commission they form a Court of Arbitration…” For this reason the Arbitration Agreement was signed by, not only the Prime Ministers at that time, Borut Pahor and Jadranka Kosor, but, for the EU Council chairmanship Fredrik Reinfeldt. It was no longer a mere agreement on solving border issues between two states, but became an obligatory international document on dispute resolution and setting borders between Slovenia and Croatia.

Or, as stated by Drnovsek on Rogatec talks so long ago, we do not wish to be a part of the European problem with our border dispute, but a part of the solution. By setting a principle, an Arbitration, we can help EU in solving other issues in the region. He though, naturally, on all open border issued of Republic of Croatia with other neighboring countries.

Signed and Parliamentary confirmed and adopted mandatory international obligations cannot be ignored and pretended they do not exist. In the same manner Croatia simply denied the agreement signed with the President of Bosnia and Herzegovina, Alija Izetbegovic, by Dr. Franjo Tudjman, or reached agreement that was a result of long term negotiations of Drnovsek and Croatian Prime Minister Dr. Nikica Valentic. This is not the reason for this document, Arbitration Agreement, is of key significance for the continuation of Croatian negotiation on full EU membership, and, for one of the versions of the Agreement included a provision on time period determination of the operation of Court of Arbitration and full membership of the neighboring country in the EU.

This is the reason for Milanovic’s subsequent issues with the role of the European Commission in this dispute and the later proposal of the new Minister of Foreign Affairs of Croatia Kovac that new solution is necessary for the resolution of border disputes based on international law and bilateral agreements. And that this is the reason for visiting Slovenia with the proposal on new initiation of talks Ljubljana – Zagreb and no longer Ljubljana – Brussels – Zagreb.

Namely, he knows very well that the key task of Croatian diplomacy and politics is to persuade the Slovenian diplomacy to consent to a new beginning. With new bilateral negotiations this includes a specific existing from Arbitration Agreement for Slovenia.

The response of Slovenia can be relatively simple, respect the regulated international obligations and ratified agreements, and that the neighboring country has the option to propose to the Court immediate execution of harmonized and signed bilateral agreement Drnovsek-Racan.