Nationalistic Approach to Foreign Policy and its Influence on the Process of the European Integration

Case of the Piran Bay Dispute between Slovenia and Croatia

Andria Merabishvili

July 2009


CEU9830

Part I: Case

Introduction

On a rainy afternoon, two bored border guards from Slovenia sat outside the restaurant. They could smell the roast pork inside but didn’t dare to enter.  The reason is that the tavern Kalin is situated right on the border of Slovenia and Croatia.  One half of the tavern belongs to the Slovenian town Obrezje, while another half – to the Croatian town Bregana.  Slovenes can have roast pork, but in order to wash their hands before dinner, they have to cross the border to use bathroom which is on the Croatian side of the restaurant.  The pool table also belongs to Croatia.  To prevent any confusion, Sasha Kalin, the tavern’s owner, has painted yellow line across the floor to mark the border between two countries.  Since 2004, this yellow line has become borderline of the European Union.

Slovenes and Croats have different language, but they share common Roman Catholic religion and common history as a part of Austro-Hungarian Empire and Yugoslavian Federation.  In the 90s, when all the Balkans were in war, Slovenia and Croatia have not fought against each other. But today, the border dispute has become so problematic issue that some call it the last war of the Balkans.  A symbolic one, but still a war.  The main object of the dispute represents a small bay of Piran in the northern Adriatic Sea, the area which covers not more than 20 square kilometres of water surface.  According to today’s international law, the bay of Piran is divided right in middle, forming two equal areas of water surface.  The northern one belongs to Slovenia and the Southern one – to Croatia.  Slovenia doesn’t agree with this status of border demarcation, claiming that it needs a bigger part of the Piran bay to ensure direct pass into the international waters (high seas) for its ships.  This would mean extending its territorial waters beyond 12 miles, the limit defined by the international law, and ratified by Slovenia.  Slovenian claims are based on the argument that the country had free access to the international waters while being part of Yugoslavia. Slovenian politicians have presented the concern that without territorial connection with the international waters, Croatia could limit “harmless passage” to its ports contrary to international agreements and practice, which would complicate Slovenia’s sovereignty at sea and would cause economic damage.  Because of these concerns, Slovenia invokes the principle of equity due to unfortunate geographic conditions.

History of the Dispute

The dispute between the states arose since 1991 when they both gained independence.  In the period of Yugoslavian Federation, the borders weren’t obstacles for ships of Slovenia and Croatia to cross whenever they wanted, because all the waters belonged to one federation.  Now those borders represent sovereign states, hence the conflict began among them. Since 1991, the problem has become more and more complicated.

In 2001, prime-ministers of both states, Janez Drnovšek and Ivica Račan made the so-called Drnovšek-Račan agreement, which defined the entire border between the countries, including the maritime border.  According to that agreement, Croatia would get approximately one third of the gulf and a maritime border with Italy, while Slovenia would get a corridor to the international waters.  This solution included a Croatian maritime enclave between Italian and Slovenian waters, which is in contrary to the international law that prohibits sovereignty over parts of the sea unconnected to the land.  However, unlike its counterpart in Slovenia, Croatia’s parliament has not ratified the agreement.

In 2007, prime ministers Sanader and Janša agreed to solve the problem before the International Court of Justice in Hague.  According to Slovenian proposal, both sides could dispute any part of the border and ask for it to be drawn at court.  But in December 2008, Slovenia blocked the opening of several chapters in Croatian negotiations for membership in the EU and returned to its positions before the agreement.

Today

Slovenia is a full member of the European Union that gives him a right of veto over any integrational process including the negotiations over Croatian membership.  This leverage strengthens Slovenian positions in the dispute with Croatia, while the latter is trying to become the EU member in the nearest future.  Samuel Zbogar, Slovene foreign minister, explained their veto in the December negotiations.  He is arguing that maps that Croatia had provided during its accession process could prejudge a solution to their long-running dispute.  With the initiative of the EU commissioner Olli Rehn, the European Commission in January suggested forming a special mediation group to help solve the long-running dispute, which could be chaired by former Finnish president and Nobel Peace Prize winner Martti Ahtisaari.  The major mechanism to solve the conflict was EU-directed negotiations.

The both sides were agree in spring 2009, but only in case if some amendments would had been made in the plan.  But this small details made situation much more complicated.  Slovenia wants the conflict to be solved in the political manner with consideration of the political fairness according to which a state has a right to have a direct access into the high seas.  On the other hand, Croatia insists on the judicial way of solving the problem that unables Slovenian claims about political fairness to be considered during the process of the solution.  Slovenes are not going to carry on the negotiations if their amendments aren’t taken into consideration, while Croats refuse to accept those points presented by the rival side.  According to Tomislav Jakic, a foreign policy adviser to President Stjepan Mesic of Croatia, ”Slovenia is misusing its position as a member of the EU and thinks it can blackmail Croatia and in this situation his country is not ready to pay with its territory for the accession into the EU.”

All the attempts by EU enlargement commissioner Olli Rehn to set up a form of international mediation between the two countries to break the deadlock has failed since the very first announcement of the EU-directed negotiations plan.  In June, EU-led talks to agree on a form of arbitration in the dispute failed as well and the issue now seems as blocked as ever, making Croatia’s hopes for membership by 2011 very unlikely.  That was followed by the resignation of Croat prime-minister Ivo Sanader, who was the head in the talks over the Bay of Piran during the spring 2009.

So the status quo looks like this: Croatia with the aspirations for the EU membership in the nearest future doesn’t compromise with its counterpart Slovenia over the Piran bay issue.  Hence the Croatian accession talks have been postponed without any definite future date by a veto from the Slovenian side.  On the other hand, Slovenia who is fighting for almost two decades for the Piran bay, has the best chance to make rival Croatia agree on his terms in order to gain the accession in the European Union.  The dispute over the tiny bay of Piran led to the bigger problem, which is affecting not only these two states, but also the whole European Union.

After describing the situation and defining main challenges for both rival sides, it is time to reveal the different aspects of the conflict, mostly judicial and political ones, and assess the case from those perspectives.

Part II: Analysis

International Law

If we look at the case from the judicial angle, it will become obvious that Slovenia with its stubborn policy and the use of veto opposes the rules and norms of the international law and the articles of the Treaty of the European Union (TEU, The Maastricht Treaty).  It erodes the credibility of the EU in international law and the implementation of the EU’s international treaty obligations under the Stabilisation and Association Agreement (SAA).  In essence, Slovenia is causing the EU to violate Article 120 of the SAA with Croatia, violates his membership obligations based on Article 10 of the EC Treaty and obstructs the Common Foreign and Security Policy (CFSP), especially the conditionality policy.

The conditionality policy for countries of Western Balkans was introduced by the European Commission in 1996.  In 1997 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 1999, following the commission’s proposal for the creation of a Stabilisation and Association Process (SAP) for the countries of South-Eastern Europe, including Croatia.

According to Sinisa Rodin, A Jean Monnet Chair and professor at Zagreb University, “the main conditions to be complied with by those countries were specified as compliance with democratic principles, human rights and the rule of law; respect for and protection of minorities; market economy reforms; regional co-operation and compliance with obligations under international peace agreements.  The conditionality policy can be effective only if the EU is able to realize its promises and if states that are its object can benefit from implementation of difficult political, economic and legal reforms.  Conditionality has to be strictly linked to the fulfillment of democratic, economic and accession criteria.  Above all, it has to be principled and applied in good faith.” However Slovenia’s blockage of Croatia’s accession negotiations falls outside of the EU’s external policy goals.

Slovenia is making Croatia’s accession to the EU conditional to cession of territorial waters in the Northen Adriatic.  Such a cession would extend Slovenian territorial waters beyond the 12 miles line from Slovenian soil – a request that is contrary to international law and which no political faction in Croatia is prepared to accept.  In this way, a territorial claim has become a condition for accession.

Under Aricle 10 of the Treaty Establishing the European Community, “Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment 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.”

The EU conditionality policy is one of member states’ obligations under the Treaties.  The Slovenian territorial requests are blocking the process of enlargement and pre-accession reforms in Croatia.  Other countries in the region are taking notes.  If the EU has nothing to offer in return, the conditionality policy is bound to fail and the region will lose incentives for reform.

So we can make some inferences from the judicial overview of the case of the Bay of Piran.  The Slovenian blockade runs against its Article 10 obligations under the EC Treaty.  Slovenia’s request to extend its territorial waters beyond the 12 miles line from her soil makes a mockery of international law and undermines the rule of law principle covered by Article 6 of the TEU.  If making the accession conditional to 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.

After reviewing the judicial aspects of the case, let’s move on to another, more interesting aspect of the dispute between Slovenia and Croatia.  In the next part, the case will be reviewed from the political and theoretical angles.

Nationalistic Approach to Foreign Policy

It was already mentioned that conflict goes on over the tiny bay of Piran.  The coastal territories doesn’t represent an object of the dispute.  Furthermore, the coastal territories of Croatia near the Piran bay isn’t populated unlike the Slovenian side of the bay’s coast, which is a very densley populated area with the town of Piran as the largest settlement in there.  It can be impied from this picture that the economical activity on the Croatian side is meaningless, thus making this place not very important for the economy of the Croatian state. The only economical activity is fishery, that can not be the real argument for Croatia to stop its way to the European integration.

There is another factor explaining Croatia’s firm position over the Piran bay issue: in case of Slovenian direct access to the international seas, Croatia will be left without direct maritime border with Italy, which is a very important economic issue for the Croatian government.

However, both of these arguments will become absurd, if Croatia integrates into the EU.  According to the four freedoms principle of the EU, these two challenges will disappear, because Croatia will have access not just to the border of the Italy, but beyond that border too and beyond any other border of the EU member state.  What is more, Croat fishermen will be able to fish not just in every part of the Piran bay, but also in every part of the EU waters.  So we can see that economical motives are not the real arguments for Croatian side to refuse its way to the EU.  Otherwise, Croatia would have accepted Slovenian position and wouldn’t have halted its own pursuit to the European Union.  So why does Croatia continue its non-compromise policy when there is a membership in the EU with a bigger economic gain on the other side of the weighing-machine?

On the other hand, in case of Croatia’s membership in the EU, Slovenian “dream” of accessing the high seas, which is in the basis of this conflict, will automatically come true, again with the means of the “good old” four freedoms principle of the European Union.  So why does Slovenia block its neighbouring state in the accession talks?

From the said above, it can be concluded that not Croatia, neither Slovenia acts like a rational state in this case.  The issue of the Piran bay is not indivisible to the result which can be received if both sides change their position and Croatia gets into the EU.  In this hypothetical scenario, both sides will be winners and according to a rational choice theory, the states acknowledging this probability of gain, should behave rationally.  But in reality, we have different kind of state behaviour, which is based not on rationality, but on some other notion.

Slovenian journalist Tania Borcic Bernard, who lives in Zagreb, says that “the politicians of both sides, can not comporomise, because they will loose lots of votes in the elections. It is the issue of national identity.” Identity is a very important thing in regard with the state which had war for freedom several years ago.  It can be said that the Balkans is the place of nationalistic ideology unlike other European regions, such as Benelux, for instance.  In Balkans, national identity, not the economic gain, defines the policy.  It explaines the situation perfectly.  Population of both countries prefer their national identity to be secured even with the regard of the tiny Piran bay which, in case the status quo is vindicated, has no economic or security importance for either states.  National identities form a national preference inside the state on the low level, which is then revealed in the foreign policy through the interstate bargaining.  In this model, it can be seen how a nationalistic mood serves as a defining factor for foreign policy of a sovereign state and then, how it affects, according to this case, the process of the European Integration.  Let’s look on the issue from the all-European perspective.

The dispute in the EU context

Until Slovenia blocked Croatia’s EU accession negotiations in December, Brussels had insisted their border dispute was “a bilateral issue” which should not impede the process of Zagreb’s European integration.  EU talks with candidate countries are meant to be a technical process, where political issues have little role to play – but this is not always the case.  Slovenia’s prime-minister Borut Pahor indicated that it is member states’ right to be allowed to raise political issues during the process: “Whenever a country would have a feeling that its sovereign rights or let’s say so national interests could be jeopardised, I think it has a right to say to other member states that it is facing a problem… This is a very pragmatic approach.”

Croatia, for its part, has criticised allowing high politics into membership talks.  Ivo Sanader of Croatia claimed that bilateral issues should not be part of EU accession talks.

According to Gergana Noutcheva, an analyst specialised in South East Europe with the Brussels-based think-tank Centre for European Policy Studies (CEPS), “Slovenia’s behaviour and its firm position in this dispute does not make a good impression in the European Union.  Because Slovenia is now an EU member state – it joined the bloc in 2004 – it is in a position of force and what it is doing now is a sort of blackmail.  It is rather Balkan behaviour and not very ‘European.’ The other member states should bring Slovenia to its senses.”

From that, we can conclude that the dynamics of this particular case with strong nationalistic features totally opposes not just the norms and principles of the EU, as we discussed in the previous chapter, but also it contradicts with the core values of the European community.

Except of the Piran bay case, there are several others that serve as an excellent example for the nationalistic view of states in regard with the EU integration matters.  The EU talks with Turkey and Macedonia have also been facing political hurdles because of historical disputes with EU members Cyprus and Greece.

EU candidate, Macedonia, has been unable to even start EU accession talks for almost four years due to a dispute with Greece over its name.  Turkey, for its part, has been facing firm opposition from Cyprus, an already-member state of the EU for almost two decades.

These are the main challenges of the process of European Integration that EU faces today.  In future, as it is already envisioned among the European states and politicians, all the states of the Western Balkans, are considered to become the members of the EU.  From the cases discussed here, it is obvious what enormous political challenges do these future member states of Balkans have on their way to the EU.  In consideration with the contemporary disputes and conflicts between other Balkan states (Bosnia-Herzegovina and Serbia dispute over Republika Srpska; Serbia and Albania dispute over now-independent and future-EU-member Kosovo; Macedonia and Greece dispute over the name of the former).  In this situation EU needs to step up and find out new effective mechanisms to avoid such challenges to the integration and development of the European Union.

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