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.


Jan Havlicek said...

I think that Croatia will be a part of EU, because not only business is business, but policy (as well as "europolicy") is business too. Slovenia will accept Croatia enter EU. 26 countries have no problem with entering of Croatia. This problem is not legal but this is problem of policy of EU and leaders of EU (we will see if EU has leaders good leaders).
Jan Havlicek

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