EXECUTIVE SUMMARY
1. The Italian and Slovenian bullying of Croatia over the latter's Ecological and Fisheries Protection Zone threatens great economic and ecological damage to the EU's foremost applicant.
2. The EU, in supporting the unprincipled stand of two existing EU members on this issue, is sending out a negative message to the Balkans and the world generally.
3. The EU must not allow existing members' vested interests to determine its judgement when resolving disputes involving applicant countries.
The European Union is exerting formidable pressure on Croatia, a candidate for EU membership, not to apply the country's Ecological and Fisheries Protection Zone (in fact, an Exclusive Economic Zone) in the Adriatic Sea to the vessels under EU flags. This is not the first time that the Croatian desire to join the Union is being used for bullying the country and keeping it confined as long as possible to an undefined Balkan grey zone together with other ex-Yugoslav countries. A new and dangerous element in the latest threat to Croatia's accession aspirations is, however, that it is being done both at the expense of international law, which Croatia followed, and in direct contradiction of the EU's own declared fishing and environmental policies.
A complete disregard for procedures, rights and obligations under the venerable UN Convention on the Law of the Sea does not bode well for the credibility of EU efforts to preach the rule of law to the Balkan nations. The apparent ease with which the Commission and the Council of Ministers have put aside the Union's principled defense of the fishing stock and environment as soon as the interests of one of its larger members were in question is equally disturbing.
How could the Union allow itself to be maneuvered into such a legal and political morass in this matter? To answer this question, one has to take into account both its legal and its political dimensions.
The legal position of the European Commission is that Croatia, in order to be admitted as a candidate country in 2004, promised not to apply its Ecological-Fisheries Zone to EU vessels. As the proof of such a promise, the Commission points to the Agreed Minutes of a meeting at which Croatia informed representatives of Italy and Slovenia that the Croatian parliament – after considerable arm-twisting from the EU - decided to exempt EU vessels from the Ecological-Fisheries Zone rules 'until a fishery agreement is reached'.
In Croatia's view, the Minutes represented information on a unilateral decision which could be rescinded in much the same way as it was originally taken, and which had none of the legal details associated with international agreements. While the character of the Agreed Minutes could perhaps be the subject of a learned debate, the document would still be legally invalid as a formal international agreement on another basis: the UN Convention on the Law of the Sea (UNCLOS). This requires that parties intending to conclude an agreement modifying or suspending certain provisions of the Convention applicable solely to relations between them, should notify all other States that are party to the Convention (today there are 155 such States), through the UN Secretary General as the Convention's depository, of their intention to conclude such an agreement prior to concluding it. This requirement of UNCLOS has not been respected in this case; thus, even under the hypothesis that the Agreed Minutes were an agreement, its conclusion would not be in accordance with the obligations of the parties under the UNCLOS.
A session of the European Council, which followed immediately after the Agreed Minutes were signed, tried to give them a semblance of a formal international document by enumerating it among the grounds for granting Croatia the status of a candidate country. The formal recognition of the status did not, by the way, move Croatia very far along the road towards the EU. The start of negotiations was put off for more than half a year because of completely false allegations that the country was harbouring a war-crimes indictee, sought by the ICTY in The Hague - the indictee in question was eventually arrested in the Canary Islands. Even after the start of negotiations, the Commission has been systematically dragging its feet and it is by now evident that the negotiating process will therefore be quite time-consuming. So, for all the optimistic political rhetoric, which is part of the stick-and-carrot game of conditions in Brussels, Croatia is still quite far from becoming a full member. The Adriatic Sea cannot wait that long.
Three and a half years have passed since Croatia excluded EU (read Italian) vessels from the Ecological-Fisheries Zone rules. After seven rounds of technical meetings (held in 2007), supposed to produce a fishing agreement, none is in sight while the fishing stock in the Adriatic Sea is getting seriously depleted. In the meantime, Italy (and Slovenia, on obscure grounds known only to its political classes) proclaimed their ecological zones. Results of monitoring projects by the DG-Joint Research Centre of the European Commission have shown a high frequency of polluting incidents in the Adriatic, a small, semi-enclosed, relatively shallow and therefore highly sensitive sea. Both the fishing and environmental situations are becoming serious threats to Croatian tourism, a strategic sector of the country's economy. Hence, Croatia must act, and act now, for its own – but also for Europe's – good.
Behind the legal rashomon and practical consequences, there are serious political problems. Where did it all go wrong? To understand it requires some insight into the vagaries of European politics which, as so often in the past, have been particularly evident in the Balkans. Had it not been for a few decisive interventions by the United States during the second half of the nineties, the region would under the splintered EU stewardship have remained the powder keg of the continent.
It is unfortunate, but not entirely unexpected, that the European powers showed themselves unable to use wisely the breathing space created by the Dayton/Paris agreements and the Kosovo interregnum. Recent developments in Kosovo, Macedonia and Bosnia-Herzegovina show that the powder keg syndrome could easily recur. Even the secondary objective of the Western policies, to keep Russian influence out of the Balkans, has not been achieved. On the contrary, Russia has chosen the Balkans as one arena in which to project its new power and ambitions.
The simplest and most straightforward postwar EU strategy in the region would have been to help the states emerging from the break-up of Yugoslavia to grow economically and politically stable and therefore to have an inherent motive to be good neighbours. They would have joined the EU on individual bases as they closed the development gap. An important part of making this process irreversible would have been for all the former Yugoslav states to have admitted responsibility for whatever war crimes they committed, and particularly for Serbia's leadership to have acknowledged Serbia's responsibility for the war of aggression which was at the root of it all. None of this happened.
For a variety of unsound reasons resulting from the absence of a genuinely unified European standpoint, the EU opted to turn a blind eye not only on the causes of the war but also on the option of lifting the Balkans economically out of the doldrums. Instead it stuck to different versions the so-called regional approach, which had the practical "advantage" of being many things to many people and cost much less than an all-out development drive.
On the one hand, the Commission conditioned the accession of individual Balkan countries to the EU by imposing on them broad, far-reaching and unevenly applied agenda. Croatia, which normally would have qualified to be somewhere in the middle of the ten EU candidates admitted in 2004/2005, was instead left in the middle of nowhere. Or rather, it was left amidst ex-Yugoslav countries minus Slovenia plus Albania, where it stands for one-sixth of the population and one-half of the GDP.
This, on the other hand, was exactly where the European Commission wanted Croatia to be. The Commission's regional approach has essentially viewed problems in various countries of the area as interconnected and impossible to resolve separately. The Commission has publicly been praising – and frequently been using as a bargaining carrot – the idea that individual countries should follow their own dynamics of accession to the Union. Its true strategic emphasis, however, has been on attempts to build up collective structures and regional treaties, to permeate the area with a new regional identity, with EU membership as an ever-present but elusive fata morgana. It is now plainly evident that this approach, rich in wishful thinking and short on cash, has been a resounding failure.
The use of Croatia as a pawn in this geostrategic game has had some rather unfortunate consequences for the country. Croatian governments of different persuasions, eager to leave the Balkan fray and join the EU as soon as possible, felt that no sacrifice was big enough if it promised to bring the country closer to becoming a member. The EU negotiators, on the other hand, found a simple technique of double-talk quite efficient. Conveying to their gullible partners, and to the Croatian public, the impression that membership is within reach, they were able easily to win negotiating points. Then, in the next step, some other issue would become a critical one or a new twist in the negotiating sequence would prolong the process. Like Alice, Croatia got used to running fast just to stay put in a Wonderland which was not of its choosing.
On the other side of the bargaining table it helped to create a rather unflattering cockiness, best evidenced in the case of the Ecological Fisheries Zone. A normal, civilized way of approaching fishing and ecological problems in the Adriatic would have been to accept well-established international rules of creating and managing such a zone, let its members Italy and Slovenia negotiate fishing quotas and smoothly take over the management of fishery policies once Croatia became a member.
Instead, a country behaving strictly according to the rules of an important international treaty has been bullied into both breaking with its procedural obligations and violating its spirit. When Croatia, more than three years later and faced with the increasingly disastrous consequences of the void created in the Adriatic, tries to return to established norms of international behaviour, one of the highest bodies of the EU, its Council of Ministers, threatens in the worst imperial manner to block its way into Europe despite the praise it lavishes on many other aspects of reforms in Croatia. Is this the message the European Union wants to send to an increasingly restless Balkans? Or to other neighbours and the rest of the world?
Branko Salaj was Croatian Minister of Information in 1991-92, Croatian ambassador to France in 1992-95 and to the Netherlands in 1995-97, and director of the Hina news agency in 1997-99.