The international arbitration court decision is balanced and reasonable and Slovenians and Croats should be able to live with it, writes Žiga Turk.

Žiga Turk is a professor at the University of Ljubljana who has twice served as a minister in the Government of Slovenia and is secretary-general of the Reflection Group for the Future of Europe.

The story so far. By 2009, Slovenia missed the opportunity to resolve the border issues with Croatia before the latter joined the EU. The key element of the dispute was the maritime border and the territorial contact of Slovenian waters and the high seas so that Slovenia would not be in that respect a “disadvantaged” country. A compromise was reached to let an arbitration tribunal decide on the border. Not everyone in Slovenia, including me, liked it (blog).

In late 2014, Slovenian Foreign Minister Karl Erjavec undiplomatically bragged that the decision was going to be very good for Slovenia. In 2015, Croatian media published recorded conversations between a Slovenian diplomat and a Slovenian member of the tribunal discussing the proceedings. Croatia, then already a member of the EU, used it as a pretext to withdraw from the arbitration agreement, retracted its tribunal member and decided in parliament it would not respect the court’s decision. The court nevertheless decided to continue the work and in June 2017 published its verdict.

The verdict is OK

The decision did not grant Slovenia what was its main objective – territorial access to the high seas. On the other hand, it did award Slovenia the majority of the Bay of Piran (see point A on the map) and a generous right of passage through Croatian waters to the high seas (area of junction, green). As a result, Slovenia is in no position to claim an economic zone in the Adriatic or make trouble should Croatia decide to do. The main strategic objective of Croatia has in this way been taken into account.

Even though Slovenia did not achieve its stated goal, the ruling coalition has been presenting the results of the arbitration as its huge success. Part of this presentation – aimed at the domestic audience – is openly and loudly pushing Croatia to accept the agreement.

All efforts of Slovenian diplomacy – most recently at the Bled Strategic Forum – are geared towards convincing our friends (who also happen to be Croatian friends) to put pressure on Croatia to accept the agreement.

Each time Slovenia calls on Croatia to accept the agreement and each time Croatia rejects it, the delusion of the success of the process for Slovenia is reinforced and Croatia is dug deeper in its rejection of the verdict. This is not leading anywhere. Which is a pity. Looking at the geography of Northern Adriatic and the Slovenian coastline, the court’s decision is balanced and reasonable and Slovenians and Croatians should be able to live with it.

Two ways out

I see two ways out. Either both countries accept the verdict of the arbitration tribunal or both countries agree on another proposal for their borders.

A narrative that helps Croatia accept the agreement is speculative but could very well be true: we know that Croatian intelligence had access to phone conversations between Slovenian diplomats and one tribunal judge. It is quite possible it also had access to other communications and learned what the decision of the court in 2015 was leaning towards. Because the expected decision was very bad for Croatia – quite unlike the final one – Croatia pulled out of the arbitration to prevent being forced to accept an unacceptable verdict.

After Croatia withdrew from the arbitration, the tribunal very likely took extra measures to make sure that no one would be able to claim it had made any favours to Slovenia – a country, mind you, that had improper communication with one of the judges. Or that it was not fair to Croatia – a country that left the tribunal. And the tribunal changed the verdict in favour of Croatia.

The irony, in short, is that because Croatia left the arbitration, it got a deal with which it can live, but formally cannot accept. It was a smart decision that produced results. The Croats should congratulate themselves, give a medal of honour to the secret service that was wiretapping the tribunal members, and somehow accept the verdict.

The second possibility is finding a way for Slovenia to reject the arbitration results as well. Should Croatia offer Slovenia a deal that is better than what Slovenia was awarded by the tribunal, Slovenia should not have a problem accepting the offer. Such a proposal could include making some stretches of the land border more practical (following rivers, not cutting houses in half), while not making the sea border one inch worse for Slovenia.

One thing Slovenia should not do, however, is to enter any kind of new negotiation with Croatia. Obviously, they are better at playing these games.