Dec 7, 2009

Croatian Yearbook of European Law & Policy

NEW!!! Vol. 5 of the Croatian Yearbook of European Law & Policy just published. More information at

Jun 30, 2009

Bundesverfassungsgericht Creates a new Hurdle for the Lisbon Treaty

On June 30, 2009 German Federal Constitutional Court passed its judgment on constitutionality of ratification of the Lisbon Treaty. The key part of the decision is the following:

4. a) The Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Bundestag document 16/8489) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law insofar as rights of participation of the German Bundestag and the Bundesrat have not been elaborated to the extent required taking into account the provisos that are specified under C. II. 3.

b) Before the entry into force of the constitutionally required legal elaboration of the rights of participation, the Federal Republic of Germanyʼs instrument of ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (Federal Law Gazette 2008 II page 1039) may not be deposited.

In brief, the Lisbon Treaty is not infringing the German Basic Law, however, the legislature did not comply with constitutional requirements when implementing constitutional guarantees of participation at European level. Accordingly, national legislation has to be changed, before ratification process can be completed.

Jun 19, 2009

End of Conditionality

Conditionality policy for countries of Western Balkans was introduced by the European Commission in 1996. On 29 April 1997, following the Commission’s report, the EU General Affairs Council adopted a regional approach introducing political and economic conditionality for the development of relations with countries in the region. That approach was further developed in June 1999, following the Commission’s proposal of 26 May for the creation of a Stabilisation and Association Process (SAP) for the countries of South-Eastern Europe, Croatia included. The main conditions to be complied with by those countries were specified as compliance with democratic principles, human rights and rule of law, respect for and protection of minorities, market economy reforms, regional cooperation and compliance with obligations under international peace agreements.

Conditionality policy can be effective only if the EU is able to live up to its promises and if States that are its object can benefit from implementation of often difficult political, economic and legal reforms. Conditionality, therefore, has to be strictly linked to fulfillment of democratic, economic and accession criteria. Above all, it has to be principled and applied in good faith.

Yet, Slovenian blocking of Croatia's accession negotiations drops out of EU's external policy goals. Slovenia is conditioning Croatia's accession to the EU by cession of territorial waters in the Northen Adriatic. Such a cession would extend Slovenian territorial waters beyond the 12 miles line from Slovenian soil, the request that is contrary to international law which no political option in Croatia is prepared to accept. In this way, a territorial claim has become a condition for accession.

Under Art. 10 of the Treaty Establishing European Community, "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."

EU conditionality policy is one of the Member States' obligations under the Treaties. Slovenian territorial requests are blocking the process of enlargement and pre-accession reforms in Croatia. Other countries in the region are taking notes. If EU has nothing to offer in return, the conditionality policy is bound to fail and the region is loosing incentives for reform.

Slovenian blockade is running against her Art. 10 obligations under the EC Treaty. It is making a mockery of international law and undermining the rule of law principle enshrined in Art. 6(1) of the Treaty on European Union.

If conditioning accession by territorial concessions is not put to an end, the EU's conditionality policy is bound to fail and the rule of law is bound to be eroded. In order to remain credible, the EU will have to address the issue, not excluding a possibility of invoking Art. 7 TEU procedure.

Feb 19, 2009

Did Slovenian referendum torpedo mediation?

After having blocked Croatia's accession talks with the EU, Slovenia moved forward and called a referendum to exclude Croatia from NATO membership. In my earlier posts I proposed a mechanism for negotiated settlement of the territorial dispute. However, new developments render the proposed mediation politically improbable if not impossible. In this post I am trying to summarize political and legal arguments which advocate against Slovenia's position and to explain why the dispute should be brought before the International Court of Justice, the jurisdiction of which Slovenia does not accept.

1. EU was created in order to avoid territorial disputes. The idea of the founding fathers, Monnet and Schumann was to create economic cooperation and functional spilover in order to avoid territorial disputes. EU membership must not be conditioned by territorial claims. Slovenia is driving EU hostage of its territorial claims and perverting the idea of the founding fathers. Not to be forgoten, international recognition of Slovenia followed only after her statement that she has no territorial disputes with neighbors;

2. Slovenian position is damaging EU policy towards the Western Balkans. If Slovenia has right to block EU talks, then EU should adopt a common position that territorial claims are a legitimate part of the accession conditionality, so that everyone else can do the same. Also, it has a destructive potential of seting aside international law as a criterion for dispute settlement in the Western Balkans. Remember, negotiating framework obliges Croatia to settle disputes by means of international law. Slovenia signed the negotiating framework in the Council;

3. Pahor government has put on the fire by blocking EU negotiations and now has problems to contain the nationalists who accepted his method across the board (NATO, but also internal matters, like the budget and similar);

4. Negotiated settlement is now impossible, since its outcome is not legaly binding. Even if some kind of settlement is reached it will be subject to Slovenian referendum, as only 2500 votes can trigger it and we have seen that nationalists have that potential;

5. Essentially, there is a little substantial difference between Pahor, the Slovenian parliamentary majority (and opposition) and extreme nationalists. This is witnessed by the resolution of Slovenian parliament of yesterday (February 19) where it is clear that Slovenia claims territorial waters within Croatia's 12 mile boundary (and beyond Slovenia's 12 mile line), as well as some soil, which is at least contentious;

6. As to the territorial dispute itself I have to say three things:

a. Slovenia demands resolution based on the principle "ex aequo et bono." However, not even that can give Slovenia access to the high seas beyond 12 miles line counting from Slovenian soil. Right of innocent passage through Croatian territorial waters is not in question, and I can imagine Croatia could grant immunity from Croatian jurisdiction even beyond innocent passage to all vessels heading to and from Slovenian territorial sea . Indeed, recourse to the ex aequo et bono principle could possibly grant Slovenia approximately 2/3 of the waters in the Piran bay. However, extension of Slovenian territorial waters beyond 12 miles line is legally impossible from perspective of international law, so is her direct contact with the high seas. This is not subject to Croatia's discretion but to mandatory rules of international law.

b. In shadow of Slovenian referendum it is politically impossible in Croatia to accept anything short of an international court as a dispute resolution mechanism. Such court is the International Court of Justice, or the Hamburg LOS Court.

c. Mediation by the Ahtisari Committee can not be ruled out, however, under the three conditions. The first and the most important is the compulsory nature of the verdict which will not be subject to Slovenian referendum or ratification. It has to be accepted as compulsory in advance by both, Slovenia and Croatia. In this respect, Slovenia should change its Constitution and exempt the verdict from ratification and referendum. Second, the Ahtisari Committee could reach its decision based on both international law and ex aequo et bono, not excluding either. Third, Slovenia should lift the blockade of EU accession talks immediately and committ not to pose any other obstacles that are not related to the acquis communautaire.

7. One should look for the facesaving scenarios, but any scenario should as a minimum:

a. entail immediate lift of the blockade on accession talks. This could be accompanied by a common position of the EU that territorial claims have no place in the negotiation talks;

b. entail a reference to international law as the principal means of dispute settlement, as specified in the Negotiating framework (this does not exclude possible reference to ex aequo et bono).

Video: After having realised the proportions of damage caused to Slovenia by the anti-Croatian referendum, Mr. Pahor agitates for Croatia's NATO membership.

Feb 16, 2009

Mainstreaming Extreme Nationalism in Slovenia

On February 16, 2009, Slovenian extreme nationalist NGO "Zavod 25. Junij" instituted procedure for annulment of parliamentary ratification of the international treaty enabling accession of Croatia to the NATO. According to the Slovenian constitution, a motion for referendum can be instituted by 2500 voters. Slovenian prime minister Borut Pahor cautined Slovenian citizens against such a move. Too little too late.

Slovenian government paved the ground to this move in December 2008 by having blocked Croatian EU membership negotiation talks for territorial claims on Croatian territorial waters in the Adriatic. While EU negotiation talks were blocked by the Slovenian Government, the extreme nationalists were taking notes. And, while the EU is striving to unblock the negotiations by devising a high profile mediation committee that is to propose a solution to the border dispute, Slovenian credibility irreparably melted down.

Today, we have satisfied ourselves that 2500 extreme nationalists can flush away any act of parliament, any treaty ratification or, indeed, any negotiated settlement. In circumstances where Slovenian Government can not live up to its own 2/3 majority ratification, every negotiated settlement with Croatia that falls short of nationalists' expectations is likely to be challenged by a national referendum subject to 2500 votes.

Former prime minister of Slovenia Mr. Janša and the present prime minister Mr. Pahor deliberately drove the NATO accession ratification process into the time constraint and blocked the EU accession talks over the territorial avarice. In effect, they invited the extreme nationalists to follow the suit. In such circumstances, Croatia does not have a credible partner to strike the deal with and will have to live with this knowledge. Croatia's EU and NATO membership will be delayed. That is, however, the less dramatic point.

The bad news is that extreme nationalism in Slovenia is unleashed. Nationalists are now asking the Parliament to enact their platform and endorse their views. Some of the maximalist territorial claims are already mainstreamed by Slovenian government (see the official Slovenian map of Piran). EU and NATO will also have to live with it.

Slovenian SOCIALIST government seems to be mainstreaming NATIONALIST claims. Be afraid, be very afraid!

According to Slovenian Constitution 40.000 votes are needed to call a referendum which can strike down legislation already passed. However, 2500 votes suffice to trigger a 35 day period within which 40.000 votes can be collected. This procedure is now on track. Slovenian parliament ratified the Treaty of Accession of Croatia to the NATO by 2/3 majority earlier this month.

Jan 3, 2009

Granice nakon raspada SFRJ

Dobro, spor oko granice sa Slovenijom je realitet. Ali pogledajmo što kaže Badinterova komisija u Mišljenju #3 (The Opinions of the Badinter Arbitration Committee)

Third - Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling decolonisation issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Fase and Hali (Frontier Dispute, (1986) Law Reports 554 at 565):

Doista ne razumijem u čemu je problem? Slovenija traži da se nikakvi hrvatski dokumenti nastali nakon 25. lipnja 1991. ne mogu uzimati u obzir pri rješavanju teritorijalnog spora. Pa to proizlazi iz Mišljenja #3. Nijedan međunarodni sud ne bi prihvatio jednostrane akte bilo koje strane kao pravno relevantne. Što doista Slovenija želi i zašto Hrvatska na to ne pristaje?

Jedini dokument koji doista škodi slovenskom slučaju nije hrvatski već Slovenski. To je slovenski pomorski zakon koji je do 1993. godine definirao Sloveniju kao državu bez pristupa otvorenom moru. (vidi link)