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Arbitration Agreement Slovenia / Croatia – what next? Highlights from the interview with Mr. Thomas Bickl , researcher at Duisburg-Essen University

26.10.2018 – The interview

The problem

Thomas Bickl :” The arbitration award is a binding settlement of a bilateral issue between Slovenia and Croatia. For a start, it has nothing to do with the EU. However, both States are members of the EU, and every EU Member has rights and obligations.

And this is where the EU aspect comes in.

Slovenia basically claims that Croatia prevents it from reciprocal access to the territorial sea for fishing purposes, and that Zagreb prevents Ljubljana from exercising fisheries control functions on its territory, i.e. in Piran Bay and in the territorial sea according to the delimitation made in the arbitration award. “

Activity of the European Commission

Thomas Bickl: “The European Commission was very actively engaged in silent diplomacy up until mid-March 2018 to get the two parties together to agree on a bilateral agreement. At some point, there must have been an informal proposal trying a new formula in Piran Bay, but Juncker did not propose it to the prime ministers Cerar and Plenković in the end.

There is, however, little the European Commission can do for the moment anyway. They have not issued an opinion on the article 259 infringement and the Slovenian complaint in March within the three-month deadline.

Had the Commission issued an opinion in favour of the Slovenian claim, everyone would have seen this as supporting Slovenia in what still is a bilateral question between two EU member states in essence. Legally, Slovenia has strong arguments, but the Commission’s stance was that it would want to stay neutral. In the end, the European Court of Justice will hand down its judgement anyway. Besides, the Commission can still decide to submit an opinion during the CJEU procedure. As any EU institution [deleted] can and also any EU Member State, Italy, Austria, Romania, Sweden, in principle anyone. Also, we should not forget that if there is a bilateral agreement on implementation, Slovenia can withdraw the lawsuit. So I think this is perhaps also why the Commission wanted and wants to keep its role as a potential mediator.

The Commission received some criticism for not taking a clear stance on the infringement of the EU law, from the Slovenian government and very recently also from the Slovenian MEPs across the political spectrum. I think the Commission knew that the lawsuit was going to be brought before the European Court of Justice by the Slovenian government anyway.”

National stand and the Slovenian MEPs

It was good that the outgoing government after the June general election checked with the leaders of the political groups in the “Zbor” whether there was still broad support for that move.” [1]

Thomas Bickl : “In this lawsuit Slovenia has [deleted] strong legal arguments. And it is difficult to see how Croatia could join Schengen without implementing the arbitration award on the border with Slovenia who already is a Schengen member.  Besides, there are a couple of other border issues with other neighbors. [deleted].”

What next?

Thomas Bickl: The arbitration award is not dead. It is alive and a binding legal settlement of the border issue. The problem with awards in State-to-State arbitration is that they are not enforceable. They are, however, enforceable indirectly as far as EU law is concerned. In the Croatia-Slovenia case, it is about the application of EU law in a Member State’s territory. And there is no way out of a CJEU judgement for any EU Member State. Legally and politically this is just not possible. So we will see the gist of the arbitration procedure implemented.

Arbitration has a very crucial role to play, also with other bilateral territorial disputes elsewhere in the successor States of Yugoslavia, if you look at the land border between Croatia and Serbia on the Danube, or the normalisation of relations between Serbia and Kosovo, in particular the thorny issue of recognition of Kosovo. We must make arbitration more robust, however. I think the lesson learnt from the Slovenian example is that illegal communication with members of the arbitral tribunal is a no go. No country can afford that politically any more. And we know that, like it or not, any country has different means to control whether such communication is actually happening.

The arbitration award, i.e. the decision of the tribunal from 29 June 2017, is a balanced one. It has secured the access link between Slovenia and the high seas in the Adriatic. This was part of the mandate for the tribunal, i.e. the Arbitration Agreement signed between the two parties in November 2009, where not only strictly legal but also more political criteria such as good -neighbourly relations were applied to the settlement of the high-seas access question and the maritime border. That mandate also included the settlement of the land border. For that, the tribunal was bound by international law so the tribunal had to limit itself to looking at which country could prove factual control of the territory or cadastral evidence. Interestingly, the tribunal also applied that concept to Piran Bay, and this is why it went for the 80-20 division as the Bay had been predominantly but not fully policed and used for fishing by Slovenia up until 1991.”

[1] Franc Bogovic (EPP / SLS) signed a letter to President Juncker on the arbitration and estimated that it is currently the best option to reach an agreement. The letter, initiated by Igor Šoltes, was also signed by Tanja Fajon (S & D / SD) and Ivo Vajgl. MPs Peterle, Zver, Šulin and Tomc did not sign the letter (MMC on September 27, 2018). Romana Tomc stressed that in spite of all the mistakes and damage done in it to Slovenia, the arbitration agreement (from a legal point of view) must be respected. Milan Zver, however, believes that the agreement can be reached only through dialogue.

Source: Euportal

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