BORDER DISPUTE WITH SLOVENIA DERAILING CROATIA'S

C O N F I D E N T I A L ZAGREB 000869 SIPDIS E.O. 12958: DECL: 12/17/2018 TAGS: PREL EUC HR SI SUBJECT: BORDER DISPUTE WITH SLOVENIA DERAILING CROATIA'S EU JOURNEY REF: A. LJUBLJANA 537 ¶B. LJUBLJANA 536 ¶C. LJUBLJANA 515 ¶D. ZAGREB 841 ¶E. ZAGREB 834 ¶F. ZAGREB 785 ¶G. ZAGREB 762 ¶H. ZAGREB 734 Classified By: Classified By: Daniel Meges, Pol Officer, for reasons 1. 4 (b) & (d). SUMMARY -------------- ¶1. (C/NF) The optimism that existed in Croatia two months ago that the new government in Slovenia would enable Zagreb and Ljubljana to move forward on the ongoing border dispute has disappeared. On the eve of a Dec. 19 EU-Croatia accession conference meeting, where it is widely expected that Slovenia will block the progress in opening and closing of several chapters in Croatia's EU negotiations, local media and Croatian politicians are increasingly worried that Croatia's NATO membership might also become a victim of the dispute. The one encouraging sign is that, even as government statements display Croatia's irritation at what they see as Slovenian blackmail, top officials, including PM Sanader, have rejected suggestions in the public and the media that Croatia should consider retaliatory measures such as a consumer boycott of Slovenian products. END SUMMARY. NO PROGRESS ON GETTING PAST SLOVENE OBJECTIONS TO CROATIA OPENING MORE CHAPTERS WITH THE EU -------------- ¶2. (U) With the failure of French efforts to broker a compromise statement that nothing in the accession process should prejudice the resolution of the border dispute, Slovenia is poised to block the opening of several chapters and the closing of at least three chapters at the EU intergovernmental conference on December 19 in Brussels. Croatia is likely to be able to open just one chapter (public procurement),and provisionally close just two (intellectual property, and economic and monetary policy). 3.(SBU) Slovenian DCM to Croatia, Minister Robert Krmelj (please protect),met with Poloff on December 16 and gave us a sharper focus on what Slovenia considers to be "prejudicial material" in Croatia's submissions. Slovenia has carefully combed through all of Croatia's negotiating positions, which themselves contain no prejudicial material, but often reference current and, at times, past Croatian laws. The laws referred to in the negotiation package frequently then make reference to action plans, executive orders, or implementation plans (sub-legal acts) that contain maps or other specifications regarding the scope and dimensions of the border. Slovenia argues that because its parliament must approve the opening and closing of each chapter, Croatia could claim that this parliamentary approval consitutes a "state blessing" of the material, giving it some legal weight in any future border arbitration. Thus, Slovenia seeks the exclusion of Croatian laws that reference any sub-legal acts that contain prejudicial material from Croatia's negotiating positions. ¶4. (SBU) Krmelj argued that when Slovenia passed a law or adopted a sub-legal act that involved the Croatian-Slovenian border, it always included a footnote indicating the final border demarcation is unresolved and is subject to a dispute. By contrast, Ljubljana claims, when Croatia enacted certain laws, such as the exclusive Ecological and Fisheries Protection Zone, or numerous sub-legal acts, it simply pocketed Slovenian concessions that were made during the never-ratified Racan-Drnovsek border deal of 2001. Moreover, Krmelj argued, the GoC failed to acknowledge corresponding Croatian concessions nor did it indicate that the border demarcation remains unresolved. Krmelj noted that Slovenian politicians across the political spectrum view the lack of footnoting by Croatia's legislature as a deliberate attempt to prejudge the border. Therefore, Slovenia has been seeking that Croatia amend all the laws and sub-legal acts that contain these prejudicial references by including the appropriate footnotes clarifying that the border is still subject to dispute. ¶5. (SBU) Croatian officials insist that they want to handle the border dispute bilaterally, preferably on the terms of a 2007 agreement between Sanader and then-Slovene PM Drnovsek to refer the dispute to third-party arbitration (REFTELS). For this reason, the GoC offered to make statements guaranteeing that nothing in their accession negotiating positions would be used in the border negotiations, or could prejudice that outcome. Any border arbitration, however, is likely to take many years (see para 9),so the Croatians fear indications from Ljubljana that a final resolution of the border dispute could be a pre-condition for Croatia's EU membership. In the Croatian view, the French effort to turn Croatia's offer into a formal declaration was the best way to keep the border discussions in the bilateral track. ¶6. (SBU) According to Krmelj, Slovenia made several amendments to the French text to increase the level of legal assurances from Croatia, but Zagreb objected -- with support from the French EU presidency (REFTEL A & D) -- that the Slovenian demands went too far in prejudging the border in favor of the Slovenian position. Krmelj indicated that Slovenia would not withdraw its amendments to the French proposal, and it was up to Zagreb to accept them if they wanted to move forward on opening and closing more EU chapters. On December 18 Prime Minister Sanader indicated that Croatia was not going to accept the Slovenian amendments. LJUBLJANA COMMITTED TO CROATIA'S NATO MEMBERSHIP, BUT WORRIES THAT POLITICS COULD INTERFERE -------------- -------------- ¶7. (C) Krmelj noted that the Slovenian government had submitted the protocol for NATO membership for Croatia and Albania to parliament. He stated that the GoS clearly supported Croatia's NATO accession, and there is broad support in Slovenia for Croatia as a member of NATO. It was now up to a parliamentary committee, in conjunction with parliamentary and constitutional experts, to determine the required majority in parliament needed to pass the protocol. He opined that based on precedents with Bulgaria and Romania this would likely mean a 2/3 majority to ratify Croatia's entry into NATO. He predicted that the parliamentary committee would finish its work by mid-January 2009 with a debate and vote on the topic a few weeks later. He then stated that while ratification of this protocol was not seen as problematic a few months ago, things were different now. Slovenian Prime Minister Barut Pahor would have to be very cautious, as the debate on Croatia would likely be "very difficult" and "intense." Krmelj noted that there were several strong parliamentarians from "liberal" parties that had the "wrong" thinking about NATO and Croatia's membership in NATO. He surmised that Pahor would need external help, primarily from Croatia, in terms of positive press and a diffusion of bilateral tension in the run-up to the NATO vote, to secure a positive result. ¶8. (C) Krmelj acknowledged that Slovenia was under a lot of pressure in the EU to back down on the border issue and allow Croatia's EU accession process to move forward. This pressure, however, made it more difficult for the government to deal with the border dispute and bolstered those that want to see the issue brought to a public referendum. He suggested that Brussels only eases its pressure on Ljubljana when Slovene officials raise the prospect of a referendum regarding Croatia's eventual EU membership. He noted that an Irish referendum blocked the Lisbon treaty, and now the Irish are getting concessions from Brussels. He added that nobody wants Croatia's NATO membership to be brought to a public referendum, but claimed that under Slovene law, demands from just ten parliamentarians could force a referendum on the issue. ARBITRATION EFFORTS STALLED -------------- ¶9. (SBU) Krmelj also stated that efforts to take the border dispute to arbitration had largely stalled over the terms of the arbitration. He indicated that there was still no agreement as to the venue, notwithstanding the Lake Bled agreement to take the issue to the International Court of Justice, nor on the legal framework for deciding the case. Slovenia continues to insist that the concept of equity and fairness, or "ex aequo et bono" (REF H),be the primary factor in deciding the case. Zagreb argues the standard rules of international law should be applied to the dispute. The Croatian government has made some private inquiries to international legal experts on how the concept of ex aequo et bono could be applied in this case, but the paucity of rulings employing this principle in international legal fora precluded Zagreb from reaching a firm conclusion. COMMENT -------------- ¶10. (C//NF) The Croatians are stuck. A senior Croatian official acknowledged to PolCouns in early November that the GoC has no real strategy for resolving the ongoing border dispute beyond the effort to get it to arbitration, and that Zagreb was surprised by Ljubljana's hardball negotiating tactics over the EU chapters. A few months ago, Zagreb hoped that the new Pahor government would drop what Croatia saw as former FM Rupel's tactic of trying to use the EU process to pressure Zagreb on the border, but this hope has quickly evaporated. Croatian officials appear sensitive to the risks should public rhetoric escalate further, but Slovenia's decision to block so many accession chapters has become the number one topic of discussion here. The issue is not going away since eventually Croatia has to figure out a way to get these chapters open. Now that the Dec. 19 deadline is passed, the GoC must consider what actions it might take to persuade Slovenia to put Croatia's EU accession process back on track. END COMMENT. WALKER