EU Court Urged to Shy Away From Slovenia & Croatia’s Border Fight

(CN) — It’s not for the European Court of Justice to wade into an international territorial dispute between the Balkan nations of Slovenia and Croatia, a magistrate with the court said Wednesday.

Advocate General Priit Pikamäe said in a legal opinion that the dispute was outside the jurisdiction of the European court. His opinion is not binding, but the court gives great weight to advice by advocates general. It was not available online when the court circulated a press release about the case.

Slovenia is asking the European court to force Croatia to accept a 2017 ruling by the Permanent Court of Arbitration that granted Slovenia possession of most of the Bay of Piran and an adjacent area in the Adriatic Sea. The bay sits on the border between the two countries on the Adriatic Sea.

Croatia has refused to accept the international tribunal’s ruling, arguing that irregularities occurred during the proceedings that makes the ruling unlawful.

“This dispute goes back to the dissolution of the Federal Republic of Yugoslavia, and the question arose what would be the proper boundary between these two republics,” said Alex Oude Elferink, director of the Netherlands Institute for the Law of the Sea at Utrecht University, in a telephone interview with Courthouse News.

After gaining independence, Slovenia and Croatia disagreed on where the border should be drawn, not just in the Bay of Piran but also along their land borders.

But the fight over the Bay of Piran has become central to the dispute and a source of conflict between Slovenian and Croatian fishermen and governments. Fishermen on both sides have been slapped with hefty fines for alleged violations of territorial waters.

In seeking admission to the European Union, Croatia agreed that it would settle its boundary dispute with Slovenia, which entered the bloc before Croatia in 2004. Croatia became an EU member in 2013.

Elferink said the EU played an important role in getting the two sides to present their dispute to the Permanent Court of Arbitration. He said Croatia agreed to take the dispute to The Hague-based tribunal only because it wanted to gain membership to the EU.

But a scandal broke out when Croatia media revealed a Slovenian arbitrator, Jernej Sekolec, and a Slovenian agent, Simona Drenik, held conversations on the telephone about the case. Both resigned in 2015, but Croatia alleged that the process had been tainted and demanded a new tribunal be set up.

The Permanent Court of Arbitration declined to start the proceedings over and in 2017 awarded most of the Bay of Piran to Slovenia. Croatia refused to accept that ruling. The court’s rulings are considered final and legally binding.

“This is a very politicized issue,” Elferink said. “I think in the end the ruling was not that bad for Croatia, but for political reasons Croatia will not accept this outcome.”

He said Croatia’s government may feel compelled to continue the fight to ward off criticisms from political opponents that it sold out Croatian interests.

“Is it such a significant loss?” Elferink said about the Bay of Piran. “It really is a small bay.”

Croatia is rich in coastline with numerous bays, inlets and islands, while Slovenia’s coastline is much smaller.

Elferink said the advocate general’s opinion stating the European Court of Justice does not have jurisdiction over an international law case was “reasonable.”

“It is not a matter of EU law,” he said. “I would expect the ECJ [the European Court of Justice] would rule the same.”

Slovenia first asked the European Commission to declare Croatia in violation of the law by not accepting the Permanent Court of Arbitration’s ruling. But the commission declined to take up the matter and Slovenia turned to the European Court of Justice.

Slovenia argues that Croatia is in violation of EU laws because it has failed to honor its commitment to settle the boundary dispute through the arbitration tribunal.

Slovenia also says Croatia is preventing it from “fully exercising its sovereignty” and is in breach of the “duty of sincere cooperation” EU members make, according to a news release announcing the advocate general’s opinion. The written opinion was not immediately available.

Croatia says the Court of Justice has no jurisdiction to rule on the matter.

In his opinion, the advocate general said the ruling by the arbitration panel is not a legal matter that the EU as a whole has adopted, as it has done for international conventions. As such, the advocate general said the tribunal’s ruling should not be construed as falling under EU jurisdiction.

The advocate general also said Slovenia’s other related claims that Croatia is violating EU laws are moot because the tribunal’s judgment remains under dispute.

“He is therefore of the opinion that, from an EU law perspective, the boundary between those two Member States has not been established,” the news release from the court states.

Pikamäe also found that the alleged infringements of EU law “are ancillary to the issue of determining the boundary between Croatia and Slovenia.”

“Determining that boundary is, by its very nature, a matter of public international law in respect of which the Court does not have jurisdiction,” the press release found.

Slovenian officials said they hope the court will take their side.

“Slovenia believes that its legal arguments will be heard, notwithstanding the Advocate General’s Opinion,” Slovenia’s Foreign Minister Miro Cerar said in a statement.

Cerar said the opinion had no bearing on the tribunal’s ruling on the boundary dispute. He called on Croatia to abide by the tribunal’s decision.

(Courthouse News reporter Cain Burdeau is based in the European Union.)

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