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Hess, Sebastian

Kuznetsova, Anna

Vogt, Bernhard

European markets for meat: real opportunities for Ukraine?

Radziwill, Artur

Smietanka, Pawel

CASE Network Studies and Analyses
No. 386 EU's eastern neighbours: institutional harmonisation and potential growth bonus

Stanko, Nick

  
 
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The International Institute for Middle-East and Balkan Studies (IFIMES) in 
Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. 
Ambassador dr. Stanko Nick1, member of the IFIMES International Institute and 
former Ambassador of the Republic of Croatia has presented his view of Croatian-
Slovenian relations, laying stress on the resolution of the sea border dispute. His 
article entitled "BALKAN PROBLEMS AT EUROPE'S DOOR" is published in its 
entirety. 
 
 
 
Dr. Stanko NICK  
-  Member of the IFIMES International Institute 
-  former Ambassador of the Republic of Croatia  
 
 
BALKAN PROBLEMS AT EUROPE'S DOOR 
 
          It was a wonderful sunny afternoon in early autumn of 2000. A Croatian 
Navy patrol-boat was gliding along the Adriatic coast in the "role" of a presidential 
yacht with a handful of passengers on board – President Stjepan Mesić and President 
Milan Kučan with about ten companions – all very good-humoured after some most 
friendly talks (which in fact did not bring the two nations any closer), enjoying the 
voyage in the Dubrovnik waters and admiring the spectacular view of the steep coast 
and picturesque islands. At one moment President Kučan, jokingly yet trying to 
continue previous discussion, remarked: "See, Stipe, how much sea and how many 
islands Croatia has. Would it make a difference if you gave Slovenia that little piece 
we need to get out to the open Adriatic Sea?".  As I was standing next to President 
                                                          
1 Dr. Stanko Nick was born in 1935 in Zagreb. He was awarded doctor's degree in international law and 
international relations at the University in Belgrade. He entered diplomatic service in 1958. He was the 
chief legal adviser in the SFRY Federal Secretariat for Foreign Affairs and in the Ministry of Foreign 
Affairs of the Republic of Croatia, former adviser to the President of the Republic of Croatia Stjepan 
Mesić, former Ambassador of the Republic of Croatia to Hungary, OSCE conciliator, member of the 
Venice Commission, author of numerous books and articles and lecturer at several faculties, 
diplomatic academies and universities.  
  
 
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Mesić I asked him if I could comment on that. Receiving his positive hint I turned to 
our Slovenian guest: "With all due respect, Mr. President, have you posed a similar 
question to the Italians?  Namely, they have even more sea than Croatia – Italy is 
surrounded by water on three sides…"    
 
IN REALITY THERE IS NO "PROBLEM" 
 
  Years have gone by. Slovenia's policy on the so called  "problem" of the 
Piran bay has shown that our neighbours have not forgotten anything nor have they 
learnt much during these past years. First of all it should be noted that in reality the 
"problem" does not exist. The thesis on the exit to the high seas (this term does not 
even exist in international law!) was initially launched as a test balloon or perhaps a 
very naive attempt to conceal or attribute secondary importance to numerous 
unresolved questions between the two states which sprang up after the disintegration 
of SFRY (such as the Ljubljanska banka debt, Krško nuclear power plant, unusual 
occupation of Sveta Gera alias Trdinov Vrh and other). As time has passed the thesis 
was increasingly used by Slovenia's political parties in their fight for power, 
attributing it the character of a first-class, existential or even vital national question, 
until it eventually assumed monstrous dimensions and turned into a usual case of 
territorial revindication in an attempt to extend the territory of one state on account 
of the neighbouring state and at the same time being used as a means to exert 
pressure on Croatia and even to condition its candidacy for the Euro-Atlantic 
integration. On the other hand, it should be also noted that reactions in Croatia, 
especially in the public and sometimes in the media, were often precipitate and 
poured oil on the flames. 
 
  Let us disentangle this complicated situation piece by piece. As it is 
generally known, the north part of the Adriatic gradually narrows until somewhere 
below 45°30' of north latitude the total width of the sea falls below 24 nautical miles 
of Croatian territorial sea on one side and Italian sea on the other side. At that point 
the line of the high seas ends and further to the north the respective parts of the 
territorial sea belonging to both countries gradually narrow. Slovenia has a relatively 
small part of eastern Adriatic coast, but still comprising the port of Koper and the 
towns of Izola, Piran and Portorož, which is enough to keep it out of the group of so 
called land-locked countries which have no sea coast at all. Dear God endowed some 
countries with lots of sea, some with little sea, and some with none at all; some again 
have mountains while others not, and some have both, while others have none of 
these features but still manage to live happily. So what is it that Slovenia wants in this 
concrete case? Most of all, a direct connection of its territorial sea with the high seas 
(the so called  "exit"). What would it get from this? Absolutely nothing that it already 
does not have! The Convention on the High Seas (Geneva, 1958.) and particularly the 
1982 UN Convention on the Law of the Sea guarantee all states (even those which are 
land-locked) the freedom of navigation, the so called exit or – using the term from the 
1982 Convention – the freedom to fly over the high seas, the use of ports and 
  
 
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everything else provided for in these international documents. Croatia has even 
offered to support this status with special international guarantees (although that is 
not necessary with the already valid Convention), but Slovenia did not accept that 
offer. The same context could be applied to the next item on the list of Slovenia's 
demands – the Piran bay (or Savudrijska Vala as we like to call it in Croatia, probably 
to highlight Croatian character for at least one half of this bay) which Slovenia claims 
in its entirety. The main reason for this unprecedented demand is that Slovenia hopes 
its territorial sea could thus extend at least a little bit closer to the desired line of the 
high seas. However, to the regret of Slovenians, that is still not far enough, since the 
Piran bay lies about fifteen miles north-east from the nearest point of the high seas. 
Moreover, the international law lays down some long-established principles (which 
were clearly codified in the new Convention) on delimitation of the sea border, and 
there is not even one case of a state having the coast where already a few metres from 
that coast the sea would belong to another state. Another reason for Slovenia's 
demand is the right to fish. The interest of Slovenian fishermen to fish in the whole 
Piran bay or even beyond that is surely a strong motive, but it would be much easier, 
faster and less complicated to resolve that issue through agreements (of course with 
appropriate compensation which is usual practice in the world). The Slovenian 
international "cuisine" therefore prepared a thesis of the so called corridor, i.e. a 
narrow passage running through Croatian territorial Sea which would belong to 
Slovenia and connect "Slovenian" territorial sea (read – the Piran bay from the Cape 
of Savudrija which lies in the Republic of Croatia) with the high seas. Of course, 
Croatia is not ready to give up a part of its territory nor aquatory since there are no 
reasons for such "bestowal". If Croatia is to be blamed for anything, it is for the wrong 
position it assumed at the very beginning of the talks on delimitation of the sea in 
order to show "goodwill" to Slovenia,  although some prominent experts on the law of 
the sea and experienced diplomats had warned that the international law knows no 
"goodwill" but only provisions written in laws and the Convention.  Unfortunately, 
this indulgence only encouraged unfounded appetites of the other party.   
 
                     There are also some relevant written texts in this field. Croatia and 
Slovenia accepted the often cited Opinion No. 3 of Badinter Commission that the 
borders of former republics of SFRY should become the borders of new states, and 
they both agreed that the situation as at 25 June 1991 should be used as the criterion 
for the delimitation of the territory. The problem is that the two states do not agree 
on what the situation on that important date was. Although the text of the Opinion 
No. 3 does not mention the sea border, there is no doubt that it could and should be 
applied also to this issue. Another important document is the Memorandum of the 
Republic of Slovenia of 7 April 1993, followed by three Slovenian texts sent during 
1999 and one non-paper communicated from the Croatian side. Since my article is 
too short for a detailed analysis of above documents, I recommend the interested 
readers to consult Prof. Vladimir Ibler's "Međunarodno pravo mora i Hrvatska" 
[International law of the sea and Croatia] (Barbat, Zagreb 2001.) which includes also 
texts of the most important conventions. Worth mentioning is also the so called 
  
 
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Drnovšek-Račan agreement which the Slovenian side persistently recalls.  Namely, 
the delegations of both countries examined the question of delimitation of the Piran 
bay (again without participation of Croatian experts on the law of the sea) and agreed 
on the text which was initialled by the leaders of the two delegations in the presence 
of prime ministers Ivica Račan and Janez Drnovšek. However, the text of the 
agreement was never signed and the Croatian Parliament rejected to read it. Legally 
the agreement does not even exist and one needs not be and expert on international 
law to know the meaning of initialling a draft agreement  – it represents merely a 
confirmation that the draft is technically correctly written, copied or translated, 
without going into its content. 
 
SLOVENIAN CASE – A DANGEROUS PRECEDENT FOR FUTURE 
CANDIDATE STATES 
 
                      Little by little, things became complicated. A few metres from the 
Croatian-Slovenian border (on Croatian side) on the left bank of the Dragonja river, a 
local clown (it is not excluded that he was encouraged and assisted by certain political 
actors from the other side of the border) hung out on his house the Slovenian flag and 
the banner with the inscription "This is Slovenia, too". As that did not produce the 
desired effect, he started to cross the river a few metres below the official border 
crossing point and to provoke incidents in various other ways. The temperature was 
rising on both sides. Journalists, experts and "professionals" tried to prove that their 
country was right and they even strove to win international  support. In Croatia, 
appeals were made to boycott Slovenian products, which are largely present on 
Croatian market shelves, while in Slovenia, public opinion polls were organised 
showing Croatia as the least popular country. "We won't go skiing to Slovenia!" (or we 
won't spend summer holidays in Croatia) was the next campaign.  Slovenia now no 
longer demands only the extension of its aquatory, but puts under question the whole 
of its eastern border. Croatia's plan was to become a full NATO member at the 
beginning of April 2009 and to conclude the EU accession talks by the end of 2009. 
In February Slovenia suddenly established that the documentation submitted by 
Croatia to the European Commission contained certain elements which prejudiced 
the border between the two states and decided to block the accession process over a 
series of chapters. This was followed by an absurd political turnabout. In the general 
psychosis against Croatia, Slovenian parliament was on its way to block also Croatia's 
membership in NATO (which was on one hand self-contradictory since Slovenia like 
all other NATO members already voted in favour of Croatia's membership, while on 
the other hand it was logical since the conditions for EU and NATO membership are 
almost  identical). However, when the "big brother" in NATO made it clear that they 
do not want anyone to block the enlargement, Slovenian Prime Minister Borut Pahor 
obviously found himself in an unpleasant situation when he had to calm down the 
temperature and enable the accession process to continue. Thus both Slovenian 
President and Prime Minister started to appeal to the citizens not to sign the proposal 
for referendum, while the Government and National Assembly stated they would do 
  
 
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everything in their power to avoid  the referendum. Still, one small non-parliament 
party managed to launch an initiative for a referendum on Croatia's membership in 
NATO. Regardless whether they succeed with the referendum, the statutory time-
limit for collecting signatures will prevent the planned accession of Croatia (and most 
probably also Albania which will be the "collateral victim" of the circumstances) at 
the next NATO summit in April. Moreover, Slovenian legislation has not provided for 
the minimum voter turnout for a referendum to be valid and therefore the decision 
supported by the majority of voters, regardless how large it is, is regarded as the valid 
one. Obviously, the resolving of open bilateral issues should be separated from the 
negotiations on membership in international organisations and unions (there have 
been several such cases in Europe in recent years), and that should apply to both EU 
and NATO. Slovenian case could represent a very inconvenient and dangerous 
precedent for future candidate states. 
 
OFFERING A "POLITICAL" RATHER THAN A LEGAL SOLUTION 
 
  What is the way forward? How to find a way out of dead-end situation 
and cut the escalation spiral? 
 
  There are of course numerous mechanisms for peacefully resolving 
disputes among states, such as negotiations and consultations, good turns, 
investigation commissions, mediation, reconciliation, compensation, arbitration and 
resolving of disputes before the court or through international organisations. Both 
Croatian and Slovenian side had opted for such approach at a very early stage. 
However, the problem arose as they could not agree on the formula to be applied for 
the peaceful resolution of the dispute. Croatia is ready to leave the case to the 
International Court of Justice in the Hague and submit to the judgement based on the 
valid international law, while Slovenia  – undoubtedly aware of its weak legal position 
– demands some kind of mediation or reconciliation, i.e. a procedure in which a third 
party has the right to submit a proposal and the formula for resolving the dispute, 
which is not based on law but on the equity or ex aequo et bono principle (whereby 
the mediator only offers technical service of transmitting messages, establishing 
contacts, providing venues for negotiations etc.). Clearly the equity principle is and 
can not be in contradiction with the international law. It is usually applied by 
international judicial bodies as a complementary means  in cases which are not at all 
or not sufficiently covered by international or multilateral  agreements. That category 
certainly does not include delimitation of the sea which is regulated in detail by the 
up-to-date convention. At this point I would like to warn of the danger of calling a 
third party (or third parties) for help. An example of such third-party assistance 
would be a three-member panel of experts recently proposed by the European 
Commission – its aim would be to increase the pressure of the international 
community on Slovenia because of its unusual and unacceptable blocking of Croatia, 
and on Croatia in order to force it to accept at any price some offered ("political" 
rather than legal) solution only to get rid of the problem (while this would bring 
  
 
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another trophy to some impostor guru pretending to be a successful mediator and 
peacemaker - there were quite a few such gurus during war clashes in the territory of 
former Yugoslavia), not paying much attention to the real interests of both parties to 
the dispute. 
 
HOW TO "CONQUER" THE WHOLE ADRIATIC? 
 
  Croatia and Slovenia have a very long history of coexistence in the same 
geopolitical space. The two nations shared the good and the bad times, they were 
never at war with each other (until now, add the cynics) and often they together 
resisted the aggressors. No doubt, there are many interests and good reasons to 
continue that co-operation and to help each other today and in the future, and those 
interests are much more valuable and important than any minor discords that have 
generated over the last few years.  We need no mediator, peacemaker or arbitrator 
and most probably neither the international court to resolve our discords. All we need 
is to show patience and tolerance on both sides, to make conscious efforts to control 
inflamed passions, to avoid pouring oil on the flames and provoking extremist acts 
and incidents, and to think how to help one's neighbour rather than to hurt him.   To 
start with, we should intensify expert dialogues (not only on the law of the sea and 
borders but also on fishery, environmental protection, agriculture and economy, 
fighting organised crime and other real problems that are present in both countries), 
intensify and develop cross-border co-operation as well as dialogues at the political 
level.  Should we not be able to resolve these few open questions which have grown to 
unjustifiably exaggerated dimensions during the past few years, they should be put 
away in a drawer for some time (since practically nothing depends on their 
resolving), and treated like that ridiculous casus belli between the kingdoms of 
Lilliput and Blefuscu so masterfully caricatured by satirist Swift in his Gulliver's 
Travels: should the boiled egg be opened at the small or big end? 
 
    If it turns out that such an approach can not be applied,  I am ready to 
support the position which is more and more often expressed in Croatia: EU and 
NATO membership have been our equally important priorities for many years. If 
some of the "key factors" believe that we do not fulfil the conditions for membership 
in any of the two organisations, that will not stop us from continuing the necessary 
reforms and democratic processes, not for the sake of Europe or any other side but 
for our own sake and for the progress of our country. Sooner or later, we will join 
both organisations, and we will join them simultaneously, not only because the 
conditions for membership in both are practically the same, but most of all because 
we can not allow anyone – whether big or small – to blackmail and manipulate our 
state and nation, its interests and its future. Having scored an own goal in this story, 
Slovenia will surely realise soon that its genuine and long-term interest is to develop 
friendly relations with the neighbouring state of Croatia and to offer its maximum 
assistance to Croatia to become a full EU and NATO member as soon as possible, 
  
 
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since in this way Slovenia will "conquer" not only a small part of a gulf but the whole 
of the blue Adriatic Sea. 
 
Ljubljana/Zagreb, 11 March 2009 
                                              
                                                                     International Institute for Middle-East 
                          and Balkan Studies (IFIMES) – Ljubljana 
 
                                                                     Directors: 
               Bakhtyar Aljaf                                                                
                          Zijad Bećirović, M.Sc. 
 
 
                                                    


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