Plenkovic’s Playing of Cards With a High Stake

In the first days of the previous week, exactly on Wednesday, September 13, something that every politician most fears of happened to the president of the Croatian government, Andrej Plenković.

Specifically, the content of his new plan of relations with Slovenia was revealed at least a day earlier than he wanted. This did not happen due to diplomatic clumsiness or possible internal political conspiracy. The reason for this was very simple. On that day, the Zagreb weekly “Globus” published the author’s text of academician Davorin Rudolf about the non-painful solution of the border dispute with Slovenia.

If we were to understand it as an accidental writing of the influential Croatian professor of international law and the former minister of foreign affairs and ambassador, we would have been wrong to do so. Specifically, the academician Rudolf is also a key participant in all the turnarounds in the negotiations between Slovenia and Croatia up to now, precisely that advisor to the Croatian presidents who has always been able to determine the point at which the negotiations should be suspended or cancelled. I am not referring only to relatively arrogant ultimatum sent to the late Prime Minister Ivica Račan today that he must publicly renounce the already initialled Border Agreement reached with his Slovenian colleague, Dr Janez Drnovšek, but primarily to the academician’s letter sent in September 2009 to the then Croatian Prime Minister Jadranka Kosor. He told her that he was giving an irrevocable resignation to the position of President of the Mixed Part of the Croatian Slovenian Commission for the preparation of a draft agreement on the settlement of the border dispute with Slovenia and informed her that her agreement with then Slovenian Prime Minister Borut Pahor was unacceptable and dangerous for Croatia. Just a few days later, when Ms. Kosor wanted to completely soften him and appoint him her personal adviser, when refusing the request, he told her that she was making a big mistake. He also explained that any ambiguity in the arbitration procedure could be resolved only by the arbitral tribunal, and not by the states in dispute, which also would not be able to influence it. That is why the one-sided statements adopted in the Croatian Parliament had no special weight and that it was of crucial importance that both Croatia and Slovenia, after the pronouncement of the judgment, would have to fully fulfil the arbitration decision. And that he did not want to participate in that treason.
Therefore, it is not exaggerated to estimate that Rudolf’s explicit opposition to the Agreement has started the time of search for the possibility of a Croatian exit from arbitration.

Eight years later, at the beginning of last week, Plenković announced that on Thursday, September 14, 2017, he would invite the presidents of all Croatian parliamentary parties for urgent consultations. The subject of the meeting should have been only one, which is relations with Slovenia. The question of what could be so different and new that it was necessary to call for such a wide circle of participants, was followed by more or less mysterious hints that Plenković had a great plan which he had to present to the invited participants as soon as possible. This was immediately followed with the assessment that perhaps only the decision on respecting the judgment of the international arbitration court was being prepared.

The reasons that would supposedly led to such a conclusion seemed quite rational. With such a political decision, Croatia would avoid the danger of losing reputation in the international community due to non-compliance with international legal obligations, and at the same time remove doubts about its credibility and the assessment that it could act similarly in relation to other international treaties. By closing the border issue with Slovenia, the neighbouring state would gain space for incomparably more complicated, and the harder to solve and burdened with history of wars border issues with Bosnia and Herzegovina, Serbia and Montenegro.

If the preparations of borders solution with the last two countries mentioned above are in a state of complete standby, and they are even avoided in Zagreb, however, sensitive unresolved border issues with Bosnia and Herzegovina require an immediate response. Firstly, because of the open state controversy about the border between the two countries at sea and almost incredible story that Dr. Franjo Tudjman, when he signed the Bosnian border agreement with the Bosnian president Dr Alija Izetbegovic in 1999, was deceived. As well as that the complete action was conducted by a Sarajevo geodetic engineer, Radovan Vuletić, who allegedly, with the Croatian colleagues with whom they jointly marked the border, kicked the border stone on one of the islands of Veliki and Mali Škvoj during the breakfast, thus allowing for a large border fraud at the damage of the Republic of Croatia. Today, when Croatia wants to build the so-called Peljesac Bridge and, despite the Bosnian-Herzegovinian territory in Neum, directly connect the south of Croatia, it is certainly followed with calls from Sarajevo that in accordance with the signed, and never ratified treaty Tuđman- Izetbegović, the border between the two countries, and therefore the border at sea, should first be determined before the start of the construction. In addition, large European funds needed for the project are expected in Zagreb. Therefore, because of this completely specific, this time financially measurable reason, it is not possible to postpone the problem with Bosnia and Herzegovina.

Serbian President Aleksandar Vučić confirmed his visit to Croatia. It is to be expected that, since he had the courage at home to open an internal discussion on the status of Kosovo, he would like to open the border issue, especially on the Danube River, with Croatia. It is for these reasons that it may have seemed reasonable that Plenković may wish to pragmatically propose a recognition of an arbitration judgement on determining the border with Slovenia at a meeting with the presidents of all the parliamentary parties.

However, it could not have been so. Croatia simply cannot change its internal political consensus and reject its position on the judgement of the arbitral tribunal. Even from the fear that in Belgrade, as well as in Sarajevo, and consequently in Podgorica, they could propose an international arbitration institute to help resolve border disputes. However, this is not the only and key reason. The current State Secretary of the Slovenian Ministry of Foreign Affairs Iztok Mirošič, in the first days of this April, explained to me the series of consequences that were related to the arbitration court ruling on the South China Sea and possible parallels with the then still awaited ruling on Slovenia and Croatia. When I read my note of our conversation again today, I come to the key part. Mirosic’s assessment was that Croatia would not recognize the arbitration judgement, and that it would propose a new bilateral agreement on the co-management of the Piran Bay, which would exclude the Slovenian direct contact with international waters.

I think that Plenkovic’s intention to convene a meeting of the presidents of all parliamentary parties was exactly that one. Proposal to Slovenia on co-management of the Bay.
However, academician Rudolf was faster. The reason was really very bizarre. Specifically, the weekly “Globus”, in which its authorial text was published, is of the date of Friday, September 15, 2017. And in fact, it was already available two days earlier, that is, the day before the meeting, with such a significance of the announced meeting. Rudolf assessed that both the presidents of the government, both Plenkovic as host and Cerar as guest, at the scheduled Zagreb meeting, carefully guarded date then was Tuesday, September 26, 2017, could reach a solution with coffee and in five minutes. The content of this solution being kept in secret for more than two decades, escaping to all negotiators, was allegedly relatively simple. The countries would nevertheless agree on a joint participation in the implementation of the most sovereign government in the Piran Bay.
In the international legal language, such joint authority in a particular area is called a condominium or co-ownership. So, the Bay would not be divided, nor would it territorially belong to Slovenia or Croatia, nor would it be extraterritorial. So, Rudolf says, in those five minutes, the presidents of governments would agree on a new bilateral agreement on the condominium between Slovenia and Croatia.
Precisely because of the publication, a day later, on Thursday, September 14, Plenković could not repeat it anymore. For that reason, he recalled to the well-known thesis on the consent of all parliamentary parties to agree with the Croatian Parliament’s decision on nullity and non-recognition of arbitral judgement, and that new bilateral talks with Slovenia would be needed for starting a new agreement on the right to joint fishing in Piran Bay. The aforementioned appendix was quickly forgotten because the participants of the meeting were informed that that part of the fishery was regulated in 2001 when the Agreement on Border Traffic and Cooperation was adopted, in which in one of its parts the Slovenian fishermen are allowed to fish up to the height of Vrsar. And that it is precisely this part that no Croatian government accepts and will never accept.
Therefore, Plenković only stressed that it is necessary to start new negotiations and that an arbitrary ruling for Croatia is unacceptable.

Only a few days later, Plenković and Dr Cerar met on the margins of the General Assembly of the UN, and announced that the Slovenian Prime Minister will visit Zagreb on Wednesday, September 27, 2017. Nothing in this report hinted to good. On the contrary, it was clear that even the minimum preconditions were not met for a meeting with such a scope. Of course, in diplomacy every conversation is necessary and consequently also good, but only if the subject of the discussion is determined. Plenković just repeated in New York that it is necessary to resolve the border issue with Slovenia through new bilateral negotiations.

This repetition was first assessed by the president of the state, Borut Pahor, with the thesis that the accepting itself that we are ready to discuss the implementation of the arbitration agreement with the new bilateral agreement would mean that the legal value of the arbitral award was essentially reduced.

This was followed by Plenković’s speech before the General Assembly and his assessment of Slovenia and the unacceptability of the arbitration agreement. His estimate was that Dr Cerar would most likely (he had spoken to him) reply to him, and that it would be all. But the agreement on the Zagreb visit is final and unchangeable. The New York presentation of the Croatian president was planned, and every single word about the nullity of the arbitration agreement was carefully placed. After this speech and its content, the eventual Cerer’s visit to Zagreb and talks with the Croatian Prime Minister would have a completely different meaning. However, this would no longer be a discussion of the implementation of the arbitral tribunal’s ruling, nor about the way in which the agreement was to be implemented, but the talks according to which the Croatian Prime Minister would have a lot of reasons for the messages that the time of new negotiations on the co-management of the Piran Bay had come.

Dr. Miro Cerar had to cancel his visit to Zagreb. And Plenković did not expect such a response.

For the Republic of Slovenia, the border issue with the Croatian is definitely resolved with the arbitration judgment.

Zagreb should simply be left the time to recognize it.

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