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.

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.

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!

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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.

Slovenia is Enlarging EU

Ovo je link na službene web stranice katastra općine Piran

Could this be a solution?

After having seen the direction in which the so-called "national interest" is heading, let me suggest an alternative way how to get out of the Slovenian-Croatian meta-dispute.

1. Slovenia should immediately unblock the negotiating chapters;
2. A panel of three wise men should be appointed to decide on the method of solving the dispute
   
3. The panel would be appointed in the following way. Slovenia and Croatia should agree to nominate one person of undisputed credibility to the panel, who shall not be a citizen or resident of either Slovenia or Croatia. The two shall agree, by mutual consent about the third member;
4. The panel of Three Wise Men should decide before which international court, tribunal, arbitration or other dispute solving mechanism should the dispute be brought;
5. Slovenia and Croatia should commit to accept, legally and politically, the decision of both, Three Wise Men and of the tribunal of their choice.

What is "national interest"?

Slovenian president Mr. Danilo Türk in an attempt to justify Slovenia in blocking accession negotiations with Croatia due to a territorial dispute recently said that the decision to block was necessary for protection of Slovenian national interest.

Let us read something about national interest:

Second, expression "national interest" is absent from EU legal vocabulary. Try to type expression "national interest" into EUR-LEX search engine.

Or, let us try with a softer definition of "national interest" - public policy. Well, the European Court of Justice, in its standing case law defines it in the following way:

"Reliance by a national authority on the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to one of the fundamental interests of society." (see e.g. Case C-50/06, European Court reports 2007 Page I-04383)

Or is it maybe that national interest of any European state, member or candidate, would be better served by setting aside territorial claims and keeping-up to the basic values of the European Union?

Slovenia is undermining the idea of the founding fathers

"Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity." reads the Schumann Declaration of May 9, 1950.

That solidarity has been the essence of European integration during more then 50 years. Europe's identity resurrected from the ashes of the WWII and started to be construed towards common European values. Embracement of those values assumes renouncement of selfish national interests as a token of building a common European future. Those values are enshrined in Art. 6 of the EU Treaty and have become an inextricable part of acquis communautaire. They are also made part of Stabilisation and Association Agreements as their essential element and condition for accession to the EU.

European Union committed to open the door for membership of states of South East Europe once they meet membership criteria. With that aim in view negotiations with Croatia are underway. Yet, on December 18., 2008 Slovenia blocked opening or closing of 10 negotating chapters, due to the territorial dispute between the two countries. The Slovenian move is seriously calling in question the Commission-set date for completing the technical negotiations by the end of the term of the Commission in 2009.

Croatia is not blocked because of her failure to comply with negotiating benchmarks or membership requirements, but for a selfish urge of Slovenia to have an upper hand in the territorial dispute with Croatia.

This opinion is not about the territorial dispute. It will be settled in a court of law or another international tribunal where one of the litigants will win and another loose and the loosing party will accept the outcome. What this opinion is about is an unprecedented and distructive move of Slovenia to reject the solution proposed by the French presidency, and to condition accession of a candidate country by imposing its unilateral views on the other party in the dispute.

It is Europe I am talking about. The Europe, envisaged by its founding fathers, who counted on solidarity as a token of common future. The Europe where border disputes are despised and set aside and those who invoke them marginalized and exposed to shame.

Europe should construe its identity against negative historic experiences. Against fascism, communism and populist nationalism. All the mentioned historic ideologies have territory and national sovereignty in their core.

European Union must not succumb Slovenian populist demands. Slovenia should be told that the position of her government misfits European union. Even worse, it jeopardizes both its internal fundaments and its external policy. European union has invested enormous efforts in order to stabilize the Balkans. A clear result of those efforts can be seen in slow but steady progress of all countries of the Western Balkans towards the EU. Slovenia is already a Member State, Croatia is negotiating membership, Macedonia is a candidate country. Montenegro just applied for the membership.

If Slovenian claim is accepted as a legitimate one by the 26, it will destroy the moral underpining of Europe to act in the region and it will fuel territorial claims which are not in short supply, among candidate and potential candidate countries. Needles to describe the potential of destruction.

Slovenian blocade has to be put to an end at once! This is an appeal to Europeans not to accept populist territorial claims that Slovenian government smuggled into the negotiating process.

Siniša Rodin

Jean Monnet Chair
University of Zagreb, Faculty of Law


P.S. Dec. 19, 2008.

As reported by Slovenian press, Slovenian president Mr. Danilo Türk said that the decision of the Slovenian Government was "neccessary for protection of national interests." Danilo Türk: "Odločitev slovenske vlade glede Hrvaške je nujna za obrambo nacionalnih interesov"

What national interests is Mr. Türk talking about? Territorial interests? Europe has been through too many tragic historic conflicts that were based on that kind of logic. European Union was created to put an end to the zero-sum game where protection of national interest of one state is served only where the Others lose. Territorial disputes have no place in the EU, nor in the membership negotiations.