I spoke with the Prime Minister on Tuesday morning, in his office on the sixth floor of the government building.
Miro Cerar, in pretty bad mood, due to the new suspension of negotiations with the unions, was preparing for the session of his office and, in particular, for the agenda item with a very ordinary, almost boring name, a letter to the European Commission.
A week ago, the government had already considered the confidential document, obtained the necessary political and parliamentary consent for it, and yesterday, the ministers had the document at their tables for the second time. Of course, the mere fact that the letter will be sent from the address of the Slovenian government sufficiently assures that its content cannot be followed by the most exciting letter of European literature, as in Kierkegaard’s Journal du Séducteur, in which Johannes writes to Cordelia about the soul which is boiling as the turbulent sea in the whirlwind of passion.
The long-lasting, very precise and carefully protected from the intrusive eyes and ears preparation of a letter on legal proceedings against the Republic of Croatia due to the implementation of the arbitral award, proves that it is not a question of possible usual correspondence. The announcement of the letter itself to be sent to the President of the European Commission today, has pointed to the discomfort of the recipient and the desire that the sender may eventually change his mind.
We have to send the letter, Cerar told me on Tuesday, because the dispute over the recognition of an arbitration award on the border between Slovenia and Croatia can be obtained only by legal means, because we simply do not have the other way.
European Commission President Jean-Claude Juncker is not happy with the letter from the Slovenian government. In the first place, because he knows that he will have to decide on its content. And then because he probably himself prepares the necessary response to the Croatian rejection of the European legal order and the judgement of the arbitral tribunal. Lastly, because he knows that a letter from the Slovenian Government, which is basically just an introduction to a possible lawsuit, is already a factual start of the proceedings under the lawsuit before the International Court of Justice in Luxembourg.
It is important how the European Commission will decide on the letter. Will it judge that it is a politically sensitive matter and behave as if it does not exist or will it make a decision and answer the letter. In addition, a slightly forgotten document which, according to Junker’s order, was prepared by the Legal Service of the European Commission less than a year ago, will play an important role. The key thesis of this significant legal opinion is that the arbitration, the judgment on the determination of the border between Slovenia and Croatia, is the result of a valid international agreement and is also stated in the Croatian Treaty on Accession to EU Membership. For this reason, they wrote, the European Union is a legal participant in the proceeding because the case has a direct legal effect on European law.
According to my predictions, and the available public documents confirm this, the Republic of Croatia is preparing a reply to a letter sent today from Cerar’s government offices. Most likely the official Zagreb will refer to three theses.
First, that they were forced to agree on the Arbitration Agreement, that the Agreement signed by the then Croatian Prime Minister Jadranka Kosor was the result of the Slovenian politic of blackmailing the weak country who wanted to become a member of the European Union. That is why the arbitral award for Croatia is not obligatory, which should mean that the border issue between the states is not formally resolved. It is also necessary that this problem is, citing, undramatized, as Prime Minister Andrej Plenkovic says, because it is not a big issue that should be considered outside the relationship between Zagreb and Ljubljana.
Another thesis is the rejection of the jurisdiction of the European Commission, because it is alleged that its decisions have no legal effect, and that its advice and recommendations are not binding.
The third part of the Zagreb answer is unlikely to be public, but it will repeat the old thesis that Croatia is ready to share its dominant position in the Adriatic Sea only and only with the Republic of Italy, as well as that it has the right to declare the exclusive economic zone at sea and so expand its jurisdiction. This will be accompanied by an old proposal on the common Croatian-Slovenian management of the Piran Bay, similar to the German-Dutch agreement on the Dollart Bay in the Wadden Sea.
The European Commission has three months to respond to Slovenia.
In Brussels, this will be firstly a time that Croatian diplomats and their publicly less known government colleagues will dedicate to persuading that the arbitration agreement was never the part of the Croatian Agreement on Croatia’s accession to the European Union, and that Slovenia was politically aggressive and malevolent.
Of course, the facts are different.
Croatia was not forced into the arbitration agreement. On January 6, 2006, then Prime Minister Ivo Sanader, at one of his party’s meetings in Split, sent a message to Slovenia that everyone in Ljubljana should know clearly that the Drnovšek – Račan agreement for Croatia was dead and that he invited for a new start of negotiations and international arbitration on the border between the two countries. At the same time, Croatia systematically sent the European Commission a falsified map on the border with Slovenia. In the expectation that the arbitration might not happen for years to come.
Sanader then agreed to Janez Janša’s proposal on an article of the Agreement, which would introduce the principle of justice. He also agreed on the insinuation of the Holy Chair, which translated the Latin justum et aequom into a just and fair solution and justified the request that arbitrators, in addition to legal ones, must seek just solutions.
And quite at the end. Slovenia agreed to Croatia’s key request that it could continue and conclude European negotiations even before the implementation of the arbitration award.
The government’s letter will begin its tough Brussels trip next week. We shall have to be persistent and patient, Cerar told me on Tuesday.
Borut Šuklje 