On the occasion of the text "The Isthmus Between a Storm and a Bonace", by Miodrag Lekić, Vijesti, 31 December 12; vijesti.me 2024. 1. 1.
I carefully read Miodrag Lekić's text "The Isthmus between Bura and Bonace", published on the Vijesti portal on January 1, 1. This text gave me the reason to speak out about the long-standing misconception and misunderstanding of some of the fundamental issues related to the border. with Croatia. In the text that follows, I will point out some of Lekić's views and assessments that are disputed, some imprecise, and some even incorrect.
I will try to explain the essence in an understandable way. For Croatia, the land border is indisputable. Prevlaka is part of Croatia, it is within the internationally recognized borders of Croatia, and it is not ready to negotiate with that. For Croatia, only the sea border is disputed.
Croatia's arguments are primarily based on the opinion of the Badinter Commission, which was formed by the EU Council of Ministers, and whose members were the presidents of the constitutional courts of France, Germany, Belgium, Italy and Spain. Badinter's commission in opinion no. 3 took a position on the borders of the former Yugoslavia, according to which the republican borders as they were at the time of the breakup of Yugoslavia were established as the borders of the newly created states. These borders are protected by international law and can only be changed by agreement between states. This is written in the opinion of Badinter's commission. So, Prevlaka was not handed over by Montenegro to Croatia, it was decided by the Badinter Commission. By the way, FR Yugoslavia recognized Croatia within internationally recognized borders in 1996, with the Agreement on the Normalization of Relations with Croatia (Article 1). This means that even then the FR Yugoslavia (and that means Montenegro) actually recognized that Prevlaka belonged to Croatia, because at that time, and even now, these were the internationally recognized borders of Croatia.
Badinter's commission based its opinion on a principle uti possidetis iuris, literally translated as "what you own by law". That principle is generally accepted in international law and is also applied to the delimitation of states created by dissolution. In addition to Yugoslavia, it was also applied to the collapse of the Soviet Union, as well as to the separation of Czechoslovakia.
Badinter's commission is sometimes imprecisely called an arbitration, which it was not, because it was based on a decision of the Council of Ministers of the EU as an advisory body, and not on an agreement between the parties to resolve their disputes. One could dispute, strictly legally, the binding force of the opinions of the Badinter Commission, which are primarily of an advisory nature. But given the authority behind the Badinter Commission, and that the opinions of the Badinter Commission have become a de facto part of the international legal order, the challenge would not be expedient. The position of Montenegro is not such that it can now challenge what stands behind the so-called international community.
Lekić imprecisely calls the borders of the republics at the time of their disintegration "Avnoj". It's not entirely like that. According to Avnoj's borders, Montenegro looked a little different. After the war, in the 40s, territories were exchanged with Bosnia and Herzegovina. Sutorina, which was part of Bosnia and Herzegovina according to Avnoja borders, became part of Montenegro, and two villages in Piva (Kruševo and Vučevo) became part of Bosnia and Herzegovina through this exchange. According to legend, that exchange was arranged by Blažo Jovanović and Đuro Pucar. It's irrelevant to this topic (may be interesting for pub stories). Apart from that, in the 50s, Slovenia and Croatia made corrections to their borders by agreement. Therefore, it is not about Avnoja borders, but about the borders that existed at the time of the disintegration of SFRY.
Lekić refers to natural boundaries, claiming that bays can only have one owner. That's not true either. When Lekić already mentioned the Bay of Piran, he should have known that this bay was divided by the decision of the international arbitration; three quarters of the Gulf of Piran belonged to Slovenia, and one quarter to Croatia.
I would especially draw attention to Mr. Lekić's reference to historical borders. Mentioning historical borders should definitely be avoided. This is not only meaningless from the point of view of international law, but also dangerous. Mr. Lekić, as an experienced diplomat, with an enviable knowledge of history, should know that reference to historical borders is powder that is easy to ignite. Especially in the Balkans. In international law, reference to historical borders in relation to the determination of the borders of newly created states created by independence has no weight. Otherwise, if historical boundaries became a relevant factor for determining borders, chaos would ensue. Especially because of the numerous changes of boundaries throughout history and the tendency of people to refer to what suits them and skip the rest. Buffet syndrome. The purpose of the principle uti possidetis is precisely to avoid the chaos that reference to historical borders would lead to. Montenegro can refer to natural and historical arguments only when demarcating at sea, because there uti possidetis the principle is not applicable.
The talk about natural and historical borders, and the indirect proposal to change the borders unnecessarily raise tensions. This should be especially avoided at this sensitive moment, when relations with Croatia are damaged, and Montenegro is in the lobby of the European Union.
What we can agree on is that this issue should be finally resolved. But not in the way represented by Lekić. There is no chance that Croatia will be convinced to give up Prevlaka through negotiations. If such a chance ever existed, it was destroyed by the attack on Dubrovnik and Konavle. It was finished with the Resolution on Jasenovac, which is seen in Croatia as a stick in Croatia's eye. You bombed Dubrovnik, ravaged Konavle, set up a camp in Morinje, now you are announcing some kind of resolutions that even Serbia was not ready to adopt, so after all you expect Croatia to give you part of its territory?! I will refrain from writing what I think about it. I was clear enough. If it is not clear, put your finger on your forehead and think.
I believe that in Croatia they are ready to talk. But I don't believe that there is even the slightest chance that in those negotiations Croatia would make a decision to give up Prevlaka. Just try for a moment to put yourself in the shoes of Croatian officials and imagine the reactions in Croatia, if a decision was made that Croatia would give up Prevlaka in favor of Montenegro. Even the most moderate Croats would not just accept the handover of Prevlaka to Montenegro.
What if there are indeed negotiations on Prevlaca and those negotiations fail? International Court of Justice, or arbitration? Yes, but how? How do you intend to go to international arbitration, or a court, if Croatia refuses? The highest officials of Croatia have repeatedly reiterated the position that for Croatia there is no disputed issue regarding Prevlaka, and that only sea borders can be discussed. According to international law, this means that arbitration cannot be established, nor can the International Court of Justice decide. There is no such international court, nor arbitration, before which the state has to appear if it does not want to and will not. What mechanism is available to Montenegro to force Croatia to accept the settlement of the dispute by arbitration? He's gone. It could be different, hypothetically, if Montenegro is in the EU and Croatia is not. So that then some kind of pressure, conditioning is applied. The situation is reversed. What then?
I would not like Mr. Lekić to be offended, because I respect him very much as a man of higher education, an erudite and an intellectual, whose texts I enjoy reading and learning from. But all that talk about natural and historical borders, negotiations that can lead to Prevlaka becoming part of Montenegro, is not realistic. There is nothing of that. You need to have guts and say it loud and clear. At least at the price of being exposed to the attack of "patriots".
The story is over too soon, no matter how much someone didn't like it. All this talk about Montenegro's right to Prevlaka is a waste of time and wasted energy. Montenegro should focus on resolving the border at sea, where it has strong arguments for a favorable delimitation.
What I absolutely agree with Lekić about is that Montenegro should finally take that step and enter into negotiations with Croatia. A lot of time was wasted unnecessarily. I hope that Croatia will not condition Montenegro's membership in the EU by referring to an unresolved border at sea. But it must finally be resolved, and I see no compelling reason why it has not been addressed so far. Do problems always have to be pushed under the carpet? I can't get rid of it there.
The best way would be to resolve the border dispute at sea through bilateral agreements, which would show Croatia and Montenegro maturity and a good neighborly relationship based on mutual respect. Unfortunately, I don't believe that will happen. There are hotheads on both sides of the border. There are circles in Croatia that consider the current temporary regime humiliating for Croatia. No matter how the deal was made, there would be malcontents who would croak about treason and high treason. It's a hot potato, so hot that no one wants to hold it. I doubt that politicians on either side of the border will be willing to accept the risk of being called out for treason. That is why I believe that in the end the dispute over the sea border will be resolved before international arbitration or a court.
The chances of Prevlaka becoming part of Montenegro are about as great as Sutorina becoming part of Bosnia and Herzegovina. None. By the same principle. I know many people will not like my attitude. I care. Those who don't like the facts don't have a problem with me, but with the facts.
The author is a professor emeritus of the Faculty of Law of Kyushu University
Bonus video:
