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C O N F I D E N T I A L SECTION 01 OF 03 LJUBLJANA 000358 
 
SIPDIS 
 
E.O. 12958: DECL: 11/18/2019 
TAGS: PGOV PREL EUN HR SI
SUBJECT: SLOVENIA-CROATIA: NOW THE HARD PART 
 
REF: LJUBLJANA 347 AND PREVIOUS 
 
Classified By: CDA Brad Freden, E.O. 12958, reasons 1.4(b) and (d) 
 
¶1. (U) This message contains an action request.  Please see 
paragraph 12. 
 
SUMMARY 
 
¶2. (C)  The signing of the historic border arbitration 
agreement November 4 by the Prime Ministers of Slovenia and 
Croatia is just the first step in a complex domestic process 
that will challenge Prime Minister Pahor and his government 
as they seek ratification of the politically sensitive 
agreement.  The PM's greatest challenge will come from 
opposition leader Janez Jansa, who sees the agreement as 
flawed and Pahor as politically vulnerable.  A Constitutional 
Court review and some form of a referendum will delay and 
further complicate the process, making final ratification 
unlikely before late winter or even early spring next year. 
As Prime Minister Pahor's government moves forward on the 
arbitration agreement, the United States will need to 
continue engaging the Slovenian government, opposition and 
public to ensure successful ratification of the agreement. 
Assistance from EU member states and conservative European 
politicians will be important in convincing Jansa to moderate 
his opposition.  End summary. 
 
BACKGROUND 
 
¶3. (SBU)  After a long slog of negotiations and heated 
domestic debates, on November 4 Prime Minister Borut Pahor 
and his Croatian counterpart Jadranka Kosor signed an 
arbitration agreement which is expected to bring a solution 
to an 18 year old border dispute which stems from the 
dissolution of the former Yugoslavia.  Slovenia's Ministry of 
Foreign Affairs praised the historic agreement, with a senior 
official saying that once the agreement was ratified by both 
parliaments, Slovenia and Croatia's border dispute would 
essentially be resolved.  However, the signing of the 
arbitration agreement by both Prime Ministers is just the 
first step.  Both governments now have to take the agreement 
to their respective parliaments for ratification.  Prime 
Minister Pahor faces a tough battle in Parliament and will 
need to convince fence sitters within his own coalition that 
the arbitration agreement is ultimately in Slovenia's best 
interests.  He has staked his political future on a 
successful outcome.  The PM will also have to sell the 
agreement to the Slovenian public who will likely vote on it 
during a referendum.  In a country where referendums are a 
popular political tool and voter turnout tends to be low, 
Pahor will need an aggressive public relations strategy to 
ensure that those in support of the agreement come out in 
force to vote for its passage. 
 
RECENT DEVELOPMENTS 
 
¶4. (SBU) On November 17, the government endorsed the text of 
the arbitration agreement and sent it to Parliament for 
ratification.  It also endorsed the PM's proposal to submit 
the agreement to Slovenia's Constitutional Court for review. 
The government has asked the Court to review only one part of 
the agreement: Article 3(a) which tasks the arbitration 
tribunal to rule on the land and sea border.  The Court will 
need to rule on the compatibility of the arbitration 
agreement's 3(a) with Article 4 of the Constitution which 
says that "Slovenia is a territorially unified and 
indivisible state" and the text of the Basic Constitutional 
Charter which states "the border between the Republic of 
Slovenia and the Republic of Croatia is that which existed 
between those two Republics within the SFRY as previously 
constituted." 
 
¶5. (C//NF) Contrary to earlier expectations, the government 
did not ask the Court to rule on whether ratification 
requires a simple or two-thirds majority, a decision which 
the opposition immediately criticized.  However, 
Constitutional Court Justice (and former Ambassador to the 
United States) Ernest Petric told CDA November 18 that the 
court could choose to rule on this question, citing the 
principle of connexity.  Petric did little to conceal his 
view that the arbitration agreement should have a two-thirds 
majority, saying that such important decisions should be 
based on broad consensus, "not passed by one or two votes." 
 
¶6. (SBU) Parliament will wait to take any further action on 
ratifying the agreement until it hears back from the Court. 
It is unclear at this point how long the Court will take to 
conclude its review, but all indications are that this 
process will take weeks, possibly months.  To speed this 
 
LJUBLJANA 00000358  002 OF 003 
 
 
process up, Prime Minister Pahor has specifically requested 
the Court to make this review their top priority, but no one 
expects a decision before the beginning of next year.  If the 
Court gives its green light, Parliament would then vote on 
ratification.  If the Court were to find the agreement 
unconstitutional -- an unlikely worst-case scenario -- the 
government would face two options; propose a constitutional 
amendment or withdraw from the agreement and propose new 
border negotiations. 
 
¶7. (SBU) Also on November 17, the government adopted its own 
statement on the arbitration agreement in response to the 
earlier unilateral statement issued by Croatia.  While the 
full text is yet to be released, the government's website 
issued the following Slovene language statement: (begin 
unofficial translation) "The Republic of Slovenia declares in 
accordance with international law that the Croatian 
unilateral statement given in connection with the arbitration 
agreement does not have any effect on its contents and sees 
the November 9, 2009 statement by the Republic of Croatia as 
unacceptable and without any effect on further procedures. 
The Republic of Slovenia declares that the task of the 
Arbitral Tribunal is to determine the territorial contact of 
the territorial sea of the Republic of Slovenia with the open 
sea (junction of Slovenia with the open sea), therefore 
preserving the right of Slovenia to the junction with the 
open sea that Slovenia had on the day of its independence on 
June 25, 1991.  The Republic of Slovenia also declares the 
arbitration agreement is to be defined in accordance with the 
common meaning of terms in the provisions of the agreement." 
(End unofficial translation). 
 
REFERENDUM -- NOT IF, BUT WHEN AND IN WHAT FORM? 
 
¶8. (SBU) Once the court gives the go ahead (barring no 
constitutional problems), the government can then call for a 
consultative referendum, an action which it has already 
endorsed.  Voting can only take place after a 30 day period 
passes, and must happen within one year.  A simple majority 
in Parliament (46 of 90) is needed to approve the referendum, 
which is ultimately non-binding.  Pahor has already publicly 
stated that he would like the consultative referendum to pose 
a very general question, perhaps as simple as "do you support 
the arbitration agreement?"  This is most likely a tactical 
move on Pahor's part.  The opposition could theoretically 
call for a legally binding legislative referendum after 
ratification, but only if it asked a different question, as 
Slovenian law does not permit two referendums on the same 
question within one year.  By making the consultative 
referendum question sufficiently general, Pahor can preempt 
the opposition by not allowing them much wiggle room to 
proffer a new question on the agreement. 
 
¶9. (C) In fact, the biggest obstacle facing the agreement on 
the Slovenian side is the leader of the largest opposition 
party, former Prime Minister Janez Jansa.  Jansa will likely 
continue to severely criticize Pahor and the government, 
ostensibly because the agreement excludes the principle of 
"ex aequo et bono" -- the power of the arbitrators to 
dispense with consideration of the law and consider solely 
what they see to be fair and equitable in the case at hand -- 
and because the tribunal's decision will come after Croatia 
is a member of the EU.  Jansa is unlikely to publicly change 
his position and has already said numerous times that he is 
in favor of a subsequent legislative referendum on the 
agreement as soon as it is ratified.  When CDA recently met 
with Jansa's primary foreign policy advisor (and former 
Foreign Minister) Dmitrij Rupel, Rupel complained about the 
government's failure to consult with the opposition and noted 
his party's fears that Croatia would not implement the 
arbitration tribunal's decision if it lost.  Rupel also told 
CDA that the SDS was disappointed with the new timeline, 
which meant that the arbitration tribunal's decision would 
come only after Croatia signed its EU accession agreement. 
In response, CDA made it very clear to Rupel (and by proxy to 
Jansa) that the United States would be extremely disappointed 
if the Slovene Democratic Party (SDS) was to blame for 
blocking the arbitration agreement. 
 
COMMENT: A ROLE FOR THE UNITED STATES 
 
¶10. (C) Our public maneuvering room is limited by the sense 
among some parts of the Slovenian public and political elite 
that Washington pressured Ljubljana into making concessions 
to Croatia.  We will need to avoid playing into that 
perception and the belief among some that the U.S. is willing 
to sacrifice Slovenia's interests in order to ensure 
Croatia's quick entry into the EU.  Senior contacts in the 
MFA and Prime Minister's Office have privately cautioned us 
about the possible negative consequences if we were to take a 
 
LJUBLJANA 00000358  003 OF 003 
 
 
very public stance on the arbitration agreement -- we could 
come across as meddling in Slovenia's internal affairs. 
Until the agreement is ratified by both parliaments, our 
public message should remain one of quiet support for the 
agreement and its ratification.  The Commission and the 
Presidency are in many ways better positioned to carry the 
public diplomacy water, though we have few illusions that 
they will.  Brussels and Stockholm should be conveying the 
message that the arbitration agreement is good for Slovenia, 
good for Croatia and good for Europe. 
 
11.(C)  While his substantive grievances may be real, Jansa 
is also clearly playing politics.  His goal is to weaken 
Pahor's government and embarrass the PM personally, perhaps 
setting the stage for early elections.  He seems willing to 
sacrifice the arbitration agreement on the altar of his own 
ambition.  Our goal is to convince him that the price for 
doing so would be too high.  Slovenian officials welcome our 
engagement with Jansa.  We will continue to engage him and 
his surrogates privately.  However, our chances for success 
will increase dramatically if we convince our European 
partners to engage.  We need help from EU member states and 
conservative European politicians who know Jansa personally. 
Jansa listens to and respects German Chancellor Merkel 
perhaps more than any other European leader, and Merkel is on 
record as supporting Croatia's accession as soon as possible. 
 Jansa's SDS is also a member of the European Peoples Party 
group, which supports Croatia's EU membership.  Jansa needs 
to hear the same message from Washington, Berlin and 
Brussels:  while this may not be "the best" agreement, it is 
certainly a good agreement.  More importantly, it is the only 
agreement on the table.  If it fails, Croatia will either 
join the EU with the border issue unresolved, or Slovenia 
will block its neighbor's accession indefinitely.  The later 
outcome is unacceptable to the international community and 
detrimental to Slovenia's own interests.  It will leave 
Slovenia isolated.  If he consistently hears the same message 
from not only Washington but also his conservative European 
friends, Jansa may be convinced to moderate his position. 
 
12.(C) Action request:  Post requests Department engage 
like-minded Member States -- and especially the Germans -- 
with the goal of convincing EPP politicians and MEPs to lobby 
Jansa on behalf of the agreement.  End action request. 
 
 
FREDEN