VZCZCXRO7867
PP RUEHDBU RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSL RUEHSR
DE RUEHLJ #0388/01 3641010
ZNY CCCCC ZZH
P 301010Z DEC 09
FM AMEMBASSY LJUBLJANA
TO RUEHC/SECSTATE WASHDC PRIORITY 7606
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE

C O N F I D E N T I A L SECTION 01 OF 03 LJUBLJANA 000388 
 
SIPDIS 
 
DEPT FOR EUR/CE AND EUR/SCE 
 
E.O. 12958: DECL: 12/28/2019 
TAGS: PGOV PREL EUN HR SI
SUBJECT: SLOVENIA-CROATIA BORDER ARBITRATION: RATIFICATION 
BY 2/3 MAJORITY POSSIBLE REQUIREMENT 
 
REF: A. LJUBLJANA 385 
     ¶B. LJUBLJANA 358 AND PREVIOUS 
 
Classified By: Pol-Econ Chief Yuriy Fedkiw, reasons 1.4(b) and (d) 
 
SUMMARY 
------- 
 
¶1. (C)  As Slovenia's Constitutional Court moves forward with 
its 
review of the Slovenia-Croatia arbitration agreement, court 
justice 
and former senior diplomat Ernest Petric has asked an 
independent 
panel of former justices -- some publicly critical of the 
agreement 
-- for their opinions on the agreement's constitutionality as 
well 
as on whether ratification requires a 2/3 majority in 
Parliament. 
Justice Minister Ales Zalar told CDA that he believes the 
Court will 
be split in its review, but that he is confident the 
agreement will 
be found constitutional and the public will support the 
agreement 
in a subsequent consultative referendum.  The alternative is 
to 
amend either the agreement or the constitution, neither of 
which is 
particularly palatable. Few observers expect the Court to 
find the 
arbitration agreement unconstitutional, but a growing number 
now 
expect that a two-thirds majority will be required for 
Parliament 
to ratify the agreement. If this is indeed the case, Prime 
Minister 
Pahor will need to use all of his political and diplomatic 
skills 
to convince opposition leaders to support the arbitration 
agreement. 
End summary. 
 
COURT REQUESTS OUTSIDE EXPERT REVIEW 
------------------------------------ 
 
¶2. (U) In November 2009, the Government of Slovenia (GOS) 
submitted 
the historic Slovenia-Croatia border dispute arbitration 
agreement 
signed by both countries' Prime Ministers to the 
Constitutional 
Court for its review.  The government asked the Court to 
consider 
only one part of the agreement: Article 3(a) which tasks the 
arbitration tribunal to rule on the land and sea border. The 
review 
process is expected to last anywhere from several weeks to 
several 
months. 
 
¶3. (C) In a somewhat surprising development, on December 8, 
local 
dailies reported that Constitutional Court Justice Ernest 
Petric, 
rapporteur for the Court,s review, asked three former 
constitutional 
court justices for their opinions both on constitutionality 
of the 
agreement and on possible solutions to a scenario if the 
arbitration 
agreement were found to be unconstitutional.  To Post,s 
understanding, 
the only possible remedies at present are to amend either the 
constitution or the agreement. Petric also asked the panel to 
advise 
if a 2/3 majority in Parliament would be required for 
ratification 
of the agreement. (Note: Petric had told CDA earlier in 
November 
that the court could rule that the agreement requires a 2/3 
majority. 
At that time, 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."  End Note.) 
 
 
LJUBLJANA 00000388  002 OF 003 
 
 
 
JUSTICE MINISTER PREDICTS COURT SPLIT, YET CONFIDENT ON 
MOVING FORWARD 
--------------------------------------------- ------------ 
 
¶4. (C) At a dinner hosted by CDA on December 9, Justice 
Minister Zalar 
said that he was confused by Petric's recent moves regarding 
the 
Constitutional Court review.  Zalar, a former judge, said 
that 
Petric's decision to call in three former justices as 
independent 
experts came as a surprise, as the government expected that 
the 
members of the current Constitutional Court would be the 
experts on 
such legal questions.  Not mentioning any specific names, 
Zalar noted 
that it was particularly disturbing that some of the former 
justices 
had recently publicly expressed their criticism of the 
agreement. 
Zalar said that he believed the Court would not reach a 
consensus and 
that the justices' opinions on the agreement's 
constitutionality would 
be split.  If consensus is not reached, by law the majority 
opinion 
would prevail. 
 
¶5. (C) Zalar also noted with some concern that the review 
process 
included the transfer to the Court of all classified and 
unclassified 
government documentation related to the resolution of the 
border 
dispute since independence.  The justice minister said that 
he was 
worried about this aspect of the review process because a 
public 
freedom of information request for the information would put 
the 
current government in a very tenuous situation, with the 
potential 
for release of classified information not intended for public 
dissemination. 
 
¶6. (C) In general, Zalar was optimistic that in the current 
environment 
the public would support the agreement in a referendum, which 
he fully 
expected would happen after the Court concluded its review. 
He felt 
strongly that both sides should, to the extent possible, 
present joint 
recommendations on issues such as the selection of 
arbitrators and use 
of the mediation chapter within the agreement to come to a 
closer 
agreement on final border resolution, thereby staying one 
step ahead 
of the arbitration process. 
 
COMMENT 
------- 
 
¶7. (C) Most legal experts believe the Court is unlikely to 
declare the 
arbitration agreement unconstitutional, but the Court itself 
is giving 
no hints.  It is also unclear why Petric made the decision to 
"outsource" the review to a panel of experts before the Court 
makes 
its decision.  The most straightforward explanation may be 
that the 
current members of the court do not have the requisite 
breadth of 
experience to address such a politically sensitive 
constitutional 
matter.  Slovenian Constitutional Court justices normally 
serve a nine 
year term; seven of the current nine justices each have less 
than 26 
months of experience on the Court's bench, one joining the 
Court as 
recently as December 19. 
 
¶8. (C) Post expects the Court will rule on the agreement 
sometime early 
 
LJUBLJANA 00000388  003 OF 003 
 
 
in 2010.  Even if the Court finds the agreement 
constitutional, a 
growing number of observers now believe that ratification 
will require 
a two-thirds majority.  It is not at all clear, however, that 
the 
government has taken into account the possible need for a 
two-thirds 
majority.In our view, the only way to achieve such a majority 
is for the 
government to convince at least some members of the 
opposition that it 
is up to the task of defending Slovenia,s position on the 
maritime 
border and prevailing in arbitration. Many currently have 
strong doubts 
on both counts. End comment. 
FREDEN