EXECUTIVE SUMMARY
1. Slovenia's maritime territorial claim against Croatia cannot be satisfied except by overturning existing laws of the sea to which all UN member states are party.
2. The delineation of the Slovenian-Croatian maritime border should be treated as an issue separate from the issue of Slovenia's demand for direct territorial access to international waters.
3. As a legal rather than a political question, the Slovenian-Croatian border dispute should be resolved by the Council of Judges of the International Court of Justice.
Compromise is a modern notion. It sounds attractive to any reasonable politician. In today’s complex and interconnected world, black-and-white solutions are indeed rare, and compromises must be sought. 'Compromise' has become a term often used, but also often misused. A wise man must be able to distinguish those areas where compromise ought to be sought from those in which there should, and can, be no room for compromise. Wisdom lies precisely in that – in the ability to comprehend the space within which we can make choices, and in awareness of the lines that must not be crossed.
Slovenia claims to have the right to territorial contact with the high seas. Is it possible, in the context of the Croatian-Slovenian delimitation dispute, to achieve a compromise solution to that key claim? First of all, it must be clear that – no matter how the Bay of Piran/Savudrija is eventually delimited – the resulting Slovenian baselines will always remain more than 12 nautical miles away from the nearest high seas (i.e., from 'Point 5' under the 1975 Osimo Treaty). This is so even if the entire Bay should be (hypothetically) regarded as internal waters of Slovenia, and a closing line at the mouth of the Bay thus be determined as a straight baseline. In order to arrive at a 12-nm distance from Point 5, Slovenia would need to extend its baseline considerably outside the Bay – but such a baseline would not be related to the Bay, nor to its own coast. In fact, the closest point on the coast located at a distance of 12 nm from Point 5 lies well beyond the area of dispute: it is where the northernmost Croatian lighthouse is situated.
Because of those facts, there are two obstacles on Slovenia’s road to 'territorial contact' with the high seas.
The first obstacle is the United Nations Convention on the Law of the Sea, currently binding156 states parties, including Slovenia (and all other EU member states). According to Article 3 of that Convention, no state has the right to a territorial sea exceeding 12 nautical miles, measured from baselines. In other words, in order to achieve a compromise enabling a 'territorial exit', or contact, with the high seas, Slovenia would need to obtain the approval of at least 155 other states parties to the UN Law of the Sea Convention; they all would need to agree that the territorial sea can extend beyond 12 nautical miles. But even that would not suffice, since the provision of the Convention on the maximum 12-nm breadth of the territorial sea is a rule of customary law, and is thus binding for all countries in the world. In its claim to territorial contact with (or 'exit' to) the high seas, Slovenia thus stands alone – against the rest of the world.
There is, however, another possibility for jumping over those long 12 miles, and the obstacle there may seem somewhat less daunting.
Basically, that approach would involve following the saying, 'if Mohammed won’t come to the mountain, the mountain must come to Mohammed' (replacing 'won’t' with 'can’t'). In other words, since Slovenia is too far away from the high seas, then it is the high seas that should be somehow brought closer to Slovenia. The only way to make that happen would be for Croatia to renounce part of its own territorial sea – that portion which stands between Point 5 under the Osimo Treaty and the reach of Slovenia’s territorial sea in accordance with international law. That is the sea area to which, due to the 12-mile rule, Slovenia cannot otherwise have any territorial rights, even theoretically. In other words, that is the area of the sea that cannot be within the subject of dispute. What then would a compromise related to that area consist in? It would involve Croatia’s renouncing a part of its territory to which it is fully entitled under international law. The correct term for that would not be a 'compromise', but a gift. A gift of something that every state jealously guards and defends: its territory.
How, then, in such a situation can a 'wise man' help, whether in a council or alone – and even if a Nobel Peace Prize laureate? Certainly not by proposing a change in the UN Convention on the Law of the Sea, since that could not be considered 'wise'. But also not by suggesting that Croatia should renounce a part of sea area that is under its sovereignty in accordance with international law, since that would be in direct contradiction not only with the UN Charter, but also with the broader ideals of peace and harmony in the world.
Nonetheless, for every problem there is some key for solving it. A 'wise man' should be capable of grasping that there is indeed a key for this North Adriatic 'Rubik’s cube' puzzle of wishes and rights. There is, in fact, not one key – but two, mutually interrelated ones.
The first key involves recognizing a very simple fact. For over a decade and half, Slovenia has demanded sovereignty over the entire maritime area in the Bay of Piran, as well as a 'direct territorial exit' to the high seas. However, that is simply not one claim, but two different ones. These two claims cannot be solved together, in one and the same 'package'. They require separate solutions. The issue of delimitation between Croatia and Slovenia in the Bay of Piran/Savudrija is one thing, while the question of Slovenia’s 'exit' to the high seas is quite another. These two issues are not causally related, since, no matter how the Bay is eventually delimited, that will not create a foundation for solving the second question of Slovenia’s contact with the high seas. The first key in the hands of a 'wise men' is thus to distinguish between those two essentially separate issues. If a solution is to be found, the way must lie in addressing them separately.
The second key may seem less readily apparent, but should still be accessible to a true 'wise man'. That key involves distinguishing reality from perception. Our 'wise man' would need to unlock – each separately – two tightly closed locks of the respective two questions.
The first lock is the issue of maritime delimitation between Croatia and Slovenia. Is that a real, pending problem? Yes it is, since the two countries have not yet determined their boundary on the sea, and the only undisputed fact is that each of them has sovereignty over a part of the coast in the Bay of Piran/Savudrija. How to determine that boundary is a matter for international law. A wise man would know that the solution to such a question must lie in a judicial settlement provided by an international judiciary body. In the current situation, only those with quite unreasonable (or malicious) intentions would propose anything else.
The second lock is the question of Slovenian access to the high seas. Is that a real, pending problem? It is not necessary to be a 'wise man' to realize that, on the sea, access is made by vessels. Ships coming to Slovenia from international waters call at its sole international commercial port, Koper. After loading or unloading cargo, they depart, headed for the high seas. And how? Coming from international waters to Koper in Slovenia, ships sail along the Croatian coast of Istria. On departure, ships sail towards the high seas through the territorial waters of Italy. That is how navigation for all ships has been settled according to a routing system adopted in 2004 at the International Maritime Organisation in London – on a joint proposal made by Slovenia and several other Adriatic Sea countries.
Are there any practical difficulties in all this? Instead of being misguided by perceptions easily imposed by the use of the word 'exit' (and the consequent impression of it being 'closed') for Slovenia on the way to the high seas, we should look at hard facts. The Slovenian Port of Koper recorded 16 million tons of cargo throughput in 2008. Back in 1990, the last year when Slovenia was still a part of Yugoslavia and had allegedly enjoyed 'direct territorial exit to the high seas', annual cargo throughput in the Port of Koper had been 5 million tons. That was the situation 'as of 25 June 1991' (the date of the two countries’ independence). In other words, the argument for the ease of Slovenia’s access to the high seas is today a rather heavy one – it amounts to 11 million tons of difference. To a 'wise man', that is probably weighty enough.
When all the locks are unlocked, all the doors opened, and problems they hide exposed, it becomes clear that for a solution to the real problem – the boundary delimitation between the two countries – there remains only one 'council of wise men'. That is the Council of Judges of the International Court of Justice in The Hague. Former Prime Minister of Slovenia, Janez Janša, clearly expressed precisely that recognition when he stated – at Bled, on 26 August 2007 – that consent in principle had been reached between him and the Croatian Prime Minister, according to which the boundary dispute was to be brought to the International Court of Justice. It is now time to implement this. As to access to the high seas – Slovenia will always have that, regardless of the final solution of its border dispute with Croatia.
Dr Davor Vidas is Senior Research Fellow and Director of Maritime Affairs and the Law of the Sea Programme at the Fridtjof Nansen Institute. This article first appeared on Slovenian Pretensions.