ON THE HISTORICAL STATEHOOD OF THE SLOVENE LANDS
(and on the Basic Constitutional Charter of the Republic of Slovenia, as well as on the judgment of the Constitutional Court of the Republic of Slovenia
regarding the Arbitration Agreement)
This document presents a critical analysis of the most important points of the recently made judgment of the Constitutional Court of Slovenia regarding the so-called Arbitration Agreement between the Republic of Slovenia (RS) and the Republic of Croatia (RC).*
The Basic Constitutional Charter on the independence and sovereignty of the Republic of Slovenia is a valid constitutional act and permanent and inexhaustible source of Slovenia’s statehood.
The Basic constitutional charter on the independence and sovereignty of the Republic of Slovenia is in all respects a valid constitutional act. However, it cannot be – one way or another – a source of Slovenia’s statehood. Non bis in idem (Heraclitus). It is proven by documents that the peoples who were settling in this part of Europe, and who gave the first names to the lands and its features, as well as created its appearance, also established a State with its own money and powers. The State-powers had never been separated from the people who bore it, no matter which name, form or ruler it might have over time. The Slovene language in State affairs, the people’s participation in it, and its culture have been proven and documented from its very beginning (the so-called profession is not happy about it, and even less so the politicians), as these facts and testimonies are unique:
– The kings of Noricum, powers and money, “provincia Sclaborum” (in the year 595; according to Deacon Paul);
– “windischer Rede sol er phlegen” – “Grawen windischen hutt uff” – “mitt jerem windischen gesang” – “Der windisch man der in also anspricht mit windischer zungen so sol er sprechen” (the first written document of Inauguration in 1161; the citations from: Swabian Mirror, 13th century, Austrian rhymed chronicles, 14th chronicle);
– In 1160 the first monastery of Carthusian monks in the countries of the Roman Empire: Zhiche; the official sources of the monastery of Carthusian monks in the Lombard province named the land “Slovenija” (Slovenia) (collate with: Dolinar, Slovenian Catholic Scientific Work, 1946–47);
– Since 1600 the documentary court records in the Slovene language (collate with: Ribnikar, Bled Serf Oath);
– Duke Friderik V especially approved the Land’s Constitution (in 1440);
– In 1510 the Carniola Parliament (the Estates) ordered Sigismund Herberstein Herberstajn to evict Venetians from Istria; Sigismund Herberstein proved that the Habsburg Hereditary Lands had not only their own army but also their own diplomacy, by his descriptions of the diplomatic missions that he carried out - for example, on behalf of Styria and Lower Austria, before he accepted his appointment at the Court Chamber (The life of Herberstein, Moscow notes, 1951);
– “The Estates” – that is the Parliament of the Slovene Lands – ordered and enabled the printing of the Jurij Dalmatin’s translation of the Bible (1584);
– In 1680 the liberal (Germ. Freiherr, French: Baron) Janez Valvazor was appointed captain of Lower Carniola (Dolenjska) foot-soldiers, by the Carniola Parliament (the Estates); to commemorate the victory over the Turks and Hungarians on the eastern boundary of Styria, the Parliament gave the initiative and established Maria’s Column, which is today situated in Levstik/Shentjakob square within Plechnik’s design in Ljubljana; the memorial plaque with the documentary record is built in the hall under the bell tower of St. Jacob’s Church;
– It was only in 1728 that those same Estates bowed down in the Slovene language before their new ruler Charles VI, the father of Maria Theresa;
– Préliminaires de paix de Leoben du 18 Avril 1797; i.e. in the agreement between Napoleon and the Austrian Emperor Franz Joseph Karl II, called the Treaty of Leoben (also known as the Peace of Leoben), signed on 18 April 1797 by Napoleon Bonaparte it was written: Napoleon would return to the emperor his hereditary States (états héréditaires): Tyrol (Tirolska), Carinthia (Koroshka), Carniola (Kranjska), Styria (Shtajerska) and Friuli (Furlanija);
– When the (German) Roman Empire was destroyed by Napoleon the nationalist empires arose; the Habsburg/Slovene/Hereditary Lands/States were overwhelmed by German nationalism, but they were still States, since:
– the Austro-Hungarian Emperor Karl I issued the Imperial Manifesto of 16 October 1918 which acknowledged the statehood and sovereignty of the Hereditary Lands/States (which included the Slovene Lands) acknowledging their right to separate from or join others of their own free will, and thereupon:
– The central administration in Vienna on 1 November 1918 acknowledged, without any objections, the information on taking over all the State powers in the Slovene Lands, sent by Jozhef pl. Pogachnik, the Head of the Slovenian government in Ljubljana;
– Crown Prince Alexander Karadjordjevich, Regent of Serbia in his reply to Svetozar Pribichevich’s address (Pribichevich was a vice-president of the National Council of the Serbs, Croatians and Slovenes) stated that the State of the Slovenes, Croats and Serbs (Drzhava SHS) was not joining the Kingdom of Serbia and Montenegro, but only the “provinces of the Slovenes, Croats and Serbs” (D. Lonchar, 1921), because only its province called “Slovene Lands” was subject to State law and might join the Kingdom of Serbia and Montenegro which was also subject to State law, while other provinces – without the attributes of a State – might only be occupied by the Kingdom of Serbia and Montenegro; this was proved by the historian Stephen Pálffy in 1995 in his History of Hungary, who stated: “in 1918 the Kingdom of Serbia occupied Croatia and Slavonia”; it was therefore necessary to conclude an additional agreement called the Treaty of Trianon which made Croatia and Slavonia a part of the Kingdom of the Slovenes, Croatians and Serbs.
So, Slovenia – the Slovene Lands under the rule of Ljubljana – entered the Kingdom of SHS (Slovenes, Croats and Serbs), and later the Socialist Federal Republic of Yugoslavia until its breakup in 1991, with its own abiding statehood (as a subject of State law) and with boundaries being through the historical events agreed and enforced by the international agreements between Yugoslavia and its neighbouring countries, while the boundaries between the Slovene Lands and other Yugoslav territory remained unchanged as they were at the time of joining; however, during the existence of the common State their international nature on both sides of the boundaries was temporarily without effect outside.
The statehood of the Slovene Lands – i.e., the Lands which are the constituent parts of the Republic of Slovenia and which in 1918 entered Yugoslavia, thereupon existed long before the Basic Constitutional Charter (BCC) came into being and this statehood has never been taken away or cancelled by any legal measure (if it would be possible to cancel its statehood at all). Therefore the BCC cannot be deemed a source of Slovenian statehood in any case. It might be today’s guarantee of its statehood. However, it is for sure a constant source of major problems, also partly because of incomprehensible and inadmissible deficiencies.
Section II of the Basic Constitutional Charter on the independence and sovereignty of the Republic of Slovenia secures the boundaries of the Republic of Slovenia and, with regard to Article 4 of the Constitution, it presents a valid and notable constitutional and legal definition of the territory of the Republic of Slovenia.
Any Constitution, or Constitutional Charter – and, of course, the BCC – is an academic example of a unilateral act, whose essential characteristic is the binding of only one party, as long as it is in force. So, the BCC may constitute the basis for the protection of the boundaries and the territory of the State, but it cannot define either the territory or the boundaries.
The fixing of boundaries by the Constitution/Constitution Charter/BCC is either a declaration of war (if it is about usurpation of the territory which the neighbour regards as its own), or a document of capitulation, if it leaves to the neighbouring country more then it wanted, even in its dreams. Thus, the fixing of the boundaries in the Constitution, unless relating to their protection and with reference to this objective, is at least superfluous if not even weak-mindedness. With regard to the statements in the BCC about the boundaries of the Republic of Slovenia, the persistence in keeping such a text in force may in all probability be treated as committing high treason.
The Republic of Slovenia in 1918 entered Yugoslavia as a subject with its own statehood and fixed boundaries. The boundaries with Italy, Austria and Hungary were fixed and made valid by the appropriate international agreements of the State of Yugoslavia with its neighbouring states. The boundary between the Slovene Lands and other Yugoslav territories was along the line from Zavrch on the Drava river to the boundary point under the Snezhnik mountain, where three boundaries intersect: Primorska – Carniolla (Kranjska) – the Hungarian Empire, and it stayed fixed until Yugoslavia was broken up; the inner Yugoslav boundary between Slovenia and Croatia (i.e. between Dravska province and Savska province or the Republic of Slovenia and the Republic of Croatia) was also fixed in the same way.
The boundary on the East, until the cancellation of the rule of Maribor, stayed along the Drava river starting from Zavrch and ending at the point of the confluence of the Drava and Mura rivers; upon the introduction of the provinces, the Kingdom of Yugoslavia established the Savska province which was situated on both sides of the Drava river including the town of Chakovec, which consequently came under Croatian local government.
On the West, there was the international border between the Primorska Land and the Hungarian Kingdom and it was lined from the above-mentioned intersection of the three borders to Kantrida above Reka (Rijeka) harbour (as after 1867 Vienna surrendered Reka harbour to Budapest) and this border was fixed until 1922, when this area was occupied by the Italians, and later they occupied Reka harbour, too. The defeat of Italy in World War II brought back the Primorska land with Reka harbour into Yugoslavia, but without Trieste and Gorica. Except for the border with Italy, no new, legally valid international boundary has been established in this area since that time. The whole of Primorska (except Trieste and Gorica) was, together with other Slovene Lands/States, within Yugoslav territory.
If there is a change in the above-mentioned boundaries – being valid at the moment when Yugoslavia was broken up – any such change should be subject to bilateral or multilateral negotiations and agreements. Such meetings have never been convened. Making changes in the boundaries merely by reference to unilateral legal documents – “section II of BCC” – would, as mentioned above, be illegal and preposterous, as this would mean an illegal interference in the basis of Slovenian statehood and – last, but not least – an interference of another State in its neighbouring State’s interests, on which this neighbouring State has rights, even though it might not have any identity document on this subject.
That part of Section II of the Basic Constitutional Charter on independence and sovereignty of the Republic of Slovenia which protects the boundaries between the Republic of Slovenia and the Republic of Croatia should be interpreted as implying the international legal principles of uti possidetis iuris (hinterland) and uti possidetis de facto (in the sea).
Making an attempt to elaborate the BCC, as shown in the above-cited third paragraph – which is (surprisingly) correct in its first part, as it does not usurp the rights to fix the boundaries – requires two explanations.
1) The principle of uti possidetis is applied for settling the consequences of military conflicts and it measures out the territory which the victor is entitled to, and that is the territory which the victor had usurped at the time when the armed conflict ended. Because the Republic of Slovenia and the Republic of Croatia were not at war, as Croatia was not even a State at the time when the BCC was drafted (Croatia announced its statehood and independence on 8 October 1991), this principle cannot be applied.
2) The imputation of the CC (Const. Court) that this principle takes into account the area of the execution of powers cannot be used, of course, to prove any validity or usability of the BCC to fix boundaries between the Republic of Slovenia and the Republic of Croatia. The reason is very simple and there is now need for additional explanation: the so-called republics within the SFRY did not execute their own governmental powers, but they execute to a certain extent the governmental powers of the SFRY. Therefore, in any case whatsoever, the right to act as a subject of State law cannot be usurped by the entities which merely had the right to execute “republic” administration on the basis of the authorisation granted by Yugoslavia – in particular because the entities which co-created Yugoslavia were the subjects of State law a long time ago. The pseudo-statehood which was awarded by the Constitution of the SFRY, 1974, to those areas which entered Yugoslavia without their own statehood cannot be a basis for territorial expansion in any case, and above all it cannot be an excuse for occupying the territory within the boundaries of the Slovene Lands/States which entered Yugoslavia in 1918. In 1974, pseudo-statehood was awarded to the republics of Croatia, Bosnia and Herzegovina and Macedonia by the Constitution of the SFRY; however, they were not awarded the right to separate from the central administration but exclusively the right of consensual secession. Such agreements have never been concluded. Therefore, the illegal secession of the republics mentioned caused the bloody wars and a horrible ethnical cleansing in all those parts which entered Yugoslavia without their own statehood: Croatia, Bosnia and Herzegovina and Macedonia – that is, all those parts which gained a kind of the statehood as laid down in the 1974 Constitution (collate with Kosovo).
According to Section II of the Basic Constitutional Charter on independence and sovereignty of the Republic of Slovenia, and in compliance with constitutional law, the inland border between the Republic of Slovenia and the Republic of Croatia is protected along the same republic border between Slovenia and Croatia which was fixed during the former Socialist Federal Republic of Yugoslavia, and the sea border is protected along the line which presents the same border as the Republic of Slovenia had before its independence and where it executed real power towards the open sea.
The wording of this – fourth – paragraph has all the characteristics of the previous, only it is more determined in its intention to enforce the prejudicial and illegal provisions of the BCC. Though it is true that most of the border between Slovenia and Croatia – at least two-thirds – is the same nowadays as it was fixed between the Slovene Lands and the Hungarian Kingdom, whose province was Croatia; however, for going over the Drava river – which was recognized by the Treaty of Trianon as a border of the Slovene March (Slovenska krajina) – in the East and beyond the former border of the Primorska Land in the West, Croatia does not have any legal grounds.
Nothing that happened in this area relating to Croatia, from establishing Yugoslavia till it was broken up, was of an international-legal nature. The only event of an international nature, which instantly re-establishes the only international border between the Slovene Lands and Croatia – which is comprehensively described in this paper – was the establishment of the nazi-fascistic vassal State, the so-called “Nezavisna drzhava Hrvatska” (1941–1945). There was no way that the nazi and fascistic allies of Croatia would allow their vassal State to usurp part of the Slovene March (Slovenska krajina) nor even a part of Primorska (Istria or islands from the Quarnero bay). Thus, till 25 June 1991 any deed or any legal document changed the facts regarding the Slovenian South border. Whatever happened at that date and since then, providing it in some way obtained an international-legal nature, would be cancelled by Article 5 of the Arbitration Agreement.
It really is not necessary to repeat the details of how during the period 1918–1991 neither the Socialist Republic of Slovenia, nor the Socialist Republic of Croatia (because of moral and ethical reasons, not to mention again the Independent State of Croatia – NDH) executed their state powers over any part of their territory, as they were constituent parts of Yugoslavia. This may be proved by the international agreements concluded between the SFRY and Italy, which did not even mention the republics. However, they did mention – and require (!) – that the communal and regional borders remain unchanged.
The Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia will not fix the boundaries between the contracting States, but will only establish the mechanism for the peaceful solution of the boundary conflict.
Point (a) of the first paragraph of Article 3, point (a) of Article 4 as well as the second and third paragraphs of Article 7 of the Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia, which should be explained and evaluated as a whole, do not conflict with Article 4 of the Constitution in connection with Section II of the Basic Constitutional Charter on the independence and sovereignty of the Republic of Slovenia.
The sixth paragraph is the only one which completely accords with the real situation and the logic of things. It is a pity that the same mind cannot realise the obvious fact that this Constitution and BCC also do not fix the boundaries – as they simply cannot do it.
The seventh paragraph defies any reason, as any deed which replaces the war by reaching an agreement on boundaries or enabling a bilateral agreement on boundaries cannot in any case conflict with the provisions of any constitution or another legal document.
The articles of the Constitution relating the boundaries – in particular its protection – protect or in some other way deal with those boundaries, which are fixed, won by force of arms, or would be fixed by the Arbitration Commission on the basis of the signed Arbitration Agreement and the submitted memorandums written by each State. The boundaries cannot be fixed either by the Constitution or by the BCC. Really, regarding the wording of Article 3, the boundaries are not fixed, as the responsibility of the Arbitration Commission is to fix them both inland and in the sea.
From the Arbitration Agreement and the wording of a sentence from the Constitutional Court of the Republic of Slovenia, it follows that any additional confirmation (referendum) of this Agreement would be completely unfounded. It is obvious that the Slovenian politicians were not able to define the State-law facts relating to the Slovenian State; during the separation of the Slovene Lands/Slovenia from Yugoslavia preposterous deeds were drawn up and internationally invalid, even disadvantageous documents were issued, and there is no need to decide on these events by referendum. Besides, it is nonsense to discover in a referendum the well known, notorious fact that the Republic of Slovenia and the Republic of Croatia cannot reach mutual agreement on their common boundaries; they are not even close to it, and so far one can see that such an agreement will never happen. In this context the signed Arbitration Agreement is an achievement, which is beyond all expectations. A real science fiction, one may say. It was almost impossible to expect that any kind of agreement would be reached, in particular one which would enable international-law criteria (which include of course the existing boundaries between the states) to be taken into consideration and excluding any argument which does not comply with the required criteria. So much the better, as even the Slovenian politicians and experts were throwing “smoke-bombs” by talking about justice and holding on to their illusions and persistently keeping secret the evident rights of Slovenia.
The “obsession by referendum” when there is really no need for it, as previously explained, shows that this unfavourable attitude is not only coincidental; Slovenia even makes itself ridiculous in front of the international public. Otherwise, the Slovenian expert and political elite envelop themselves in silence on a matter which definitely needs to be proved (and settled by referendum), and that is the contents of the memorandum required by the Arbitration Agreement. In fact, everything that is important for the final decision will depend on the statements included in the memorandum. The Arbitration Commission may reach its decision only on the basis of the statements written in the memorandum by the party to the procedure. If the party merely refers to some quasi-argument, which would not meet the requirements of Article 4 of the Arbitration Agreement, the party will significantly reduce the credibility of its most important argument – as a matter of fact, an argument which (only) Slovenia has: the international boundaries of the Slovene Lands, which were in force on 1 December 1918 when the Slovene Lands, as the constitutive nation, entered Yugoslavia.
The essential quality of the Arbitration Agreement is the clearly quoted international-law criteria. Besides all previously cited facts, these criteria submit to arbitration only those facts relating to international law, which must be – and are allowed to be – written into the memorandum by the Slovenian Government. The Yugoslav internal legislation and legal regulations do not have any effect at international level; it might influence the decision of the Arbitration Commission only if the arguments on the State law were not put on the table.
Therefore it is necessary to appropriately ensure (e.g. in a referendum, as in this case the capacity of the Slovenian politicians to contribute to the State identity and integrity of the profession are not the usual practice) that the Arbitration Commission can be acquainted with all the relevant arguments: the boundaries and the integrity of the Slovene Lands. In a civilized Europe these are inviolable demands.
There are various examples when States with State-law identity transferred from one larger State community to another and returned back to their previous State community; however, they kept their territorial and cultural integrity, as well as their statehood. The territorial and ethnic expansionism – whose victim the Slovene Lands were for more than a hundred years (and such aspirations are continuing on our southern border) – is today a rejected and primitive practice; after the cruelty of World War II, it is an insult for Europe and the world of the 21st century as a whole.
(Andrej Lenarchich, Member of Parliament of the first democratic convocation)
Translated from Slovenian Tajana Ida Feher
* The citations from the judgment are written in italics.