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Thanks for sharing Indigen. Here are his thoughts in a little more detail. A perspective that must be pursued!
Strategy to Return Macedonia's Constitutional Name in the UN
By Igor Janev, PhD
Diplomatic initiative that Greece has undertaken to EU members regarding the issue of constitutional name of Macedonia in UN, as a result of acknowledging Macedonia's constitutional name by USA, will set in motion a new ground swell of political pressure in order to solve the name issue within UN. Greece, as expected, will put great effort in persuading other countries from international community not to acknowledge Macedonia by its constitutional name and will strengthen the pressure in UN as well as USA for finding a solution which will assume change of constitutional name. Partially, this pressure is felt in the tone of the latest letter which Bush sent to Greek President of Government in which as we are aware he indicates that USA will accept any agreed solution which will result from UN negotiations. State Department spokesperson pointed out this on a press conference right after the announcement of the recognition, but added that USA "recognize Macedonia by the name chosen by the Government and people."
If this additional explanation can be understood as recognition by USA to the right a sovereign country to be able to choose its name in a sovereign manner, then USA statements that they will accept any agreed solution for the name which will result from UN negotiations can be interpreted as "ways to comfort" (Greece), or in the frameworks of a real politics in which political goals and legal principles are frequently opposed. Because the right of a certain country for sovereign choice of its name excludes obligations of that country for negotiations with other country. However, USA expressed political will to recognize Macedonia's constitutional name and it stands as a fact; the recognition itself also stands as a fact as well as all the legal and political consequences of that fact. Greek side has grasped quite well the meaning of those facts and its political action on international arena is quite understandable. Macedonian side should also comprehend utterly seriously the given situation and should initiate action to affirm its positions about this issue and to achieve its sovereign right to choose its own name, instead of amortizing the effects of the Greek political-diplomatic actions.
Macedonian Government, as I had written before, should undertake a broad diplomatic action in order to explain that the name choice is sovereign and inherent right of every country and that denial of such right, as conducted in the aforementioned UN and Security Council's resolutions, means denying the right through illegitimate illegal process to have name at all. This results from the fact that name as legal identity of internationally legal subject such as the state, is essential part of its subjectivity thus it cannot be object of deprivation, imposing and/or negotiating. On the other hand, the name does not imply legal consequences (for instance, the right to foreign territories) and it should be further taken into account that with Amendments introduced in its Constitution, Macedonia explicitly disavows itself from such interpretations. These are basic arguments which diminish legal effect of the Greek argument that the name Macedonia implies "territorial pretensions." The name of a country itself neither implies nor influences territorial rights and obligations of that country as well as other countries. This argument refers to other rights and obligations of countries as well (cultural, historical, etc).
Regarding this, Macedonian strategy for establishing the constitutional name in UN should not be based on the popular "double formula" suggested from Crisis Group. This political formula has no reference in international law. If a country has a sovereign and natural basic right to have a name (jus cogens) thus a right to choose in a sovereign manner (i.e. to establish its legal identity as important element in its international subjectivity and statehood), then the subject matter for negotiation on international and internal (for Greece only) name is obviously ridiculous. This formula is a political nonsense not to mention a legal one since it ignores the basic idea for Greek opposition to international use of the name Macedonia: it does not refer to Greece calling Macedonia whatever it likes but to prevent International community to recognize Macedonia with its constitutional name. Thus, it is quite clear that Greece would never accept "double formula" as basis for negotiations on the name issue. The insistence from Macedonian side on "double formula" as the basis for negotiations about the name is seen from aside (as well as from Greece) as naive method for obstruction of negotiations. Generally, if Macedonia is determined to keep its constitutional name, any "political formula" cannot present basis for negotiations with Greece in UN: obstruction in more or less obvious manner has to remain (as it has remained so far) the basic means of Macedonian strategy. It is contrary to UN resolutions from 1993 bound by admission of Macedonia in UN where negotiators are requested to reach a "prompt solution for the dispute." Lack of sanctions for negotiators because they did not fulfill this part of resolutions can be interpreted as "silent acknowledgement" of the world community that the choice of name is a sovereign right of every country which is encouraging for Macedonian side's position and tactics in negotiations (i.e. practically for their obstruction). However, this approach to the name issue of Macedonia in the UN which is based on the principle "laisser passer" as well as on hope that in time more countries will recognize Macedonia with its constitutional name, holds Macedonia in non equal status in UN, permanently offends its dignity, while the recognition of constitutional name in bilateral relations makes it an instrument for political calculations (as shown with recent US recognition of constitutional name). This last thing is the most dangerous element in the political approach for solution of the problem of our constitutional name: in particular moment other political priorities can be grasped (or treated by political elite) as more important than the name (for instance EU admission) and to bring to revocation of constitutional name. That is why legal approach for solution of the name issue seems the most adequate. Current international law gives Macedonia the clearest and the strongest arguments and means to return its constitutional name within UN.
Legal arguments also represent the best basis for negotiations with Greece in UN in the framework of any "political formula." One day everybody will have to realize (explain) that parts of resolutions of Security Council and UN General Assembly for Macedonia's admission in UN which impose the reference FYROM and obligations for Macedonia to negotiate with Greece for its name represent ultra vires acts. These conditions, even if the state accepts them cannot be voted for. On the other hand, there was a vote on these conditions during the admission of RM in UN in 1993 in two institutions (UN Security Council and UN General Assembly) thus violating its authorizations in these two institutions of the Organization. These violations of authorizations are crude breaking of Charter of the UN which is why the set conditions for Macedonia's admission in UN are illegal. This should be one of the basic legal arguments in talks with Greece about the name in UN.
In order to initiate action for establishing the constitutional name it is indispensable to mobilize and professionally strengthen the entire relevant staff potential in the adequate state institutions (President and Foreign Ministry). Our diplomatic missions especially in EU countries and in countries where residences of key international organizations are located should be completely adjusted to clinch arguments for their position which refer to admission and status of Macedonia in UN. One of the basic elements of those arguments would be clear indication that additional conditions for Macedonia's admission in UN are contrary to Articles 2 and 4 from UN Charter. Article 2 refers to sovereign equality of state members, while article 4 refers to the procedure for admission in agreement with explicitly regulated conditions for admission.
Procrastination of solution of name issue which has been practiced from all the previous governments is not in Macedonia's favor. As it is well known, FYROM reference, does not define one unequal legal status for Macedonia in UN, especially in the area of its representation. That status is contrary to the UN Charter itself and with other international legal acts. Furthermore, stalling of this issue's solution has repercussions with our relations with EU. Until this problem is solved it seems that Greece will not ratify Stabilization and Association Agreement. The obligation for negotiations with Greece about the name is in the aforementioned UN resolutions but it is precisely that part in them which is unlawful from a legal point of view (overstepping of the authorizations of UN institutions). According to that, instead of solving the problems caused from this illegal act it is necessary to work upon corrections of illegality of that act; instead of solving the consequences, their cause should be eradicated. With other words, instead of negotiations with Greece or trying other political means the issue of constitutional name of Macedonia in UN should be solved with legal means in the framework of UN itself where the problem has started. Violation of Article 4 from UN Charter upon Macedonia's admission as UN member by UN institutions was irrefutably proven in my work in "American Magazine on International Law" in 1999. Contrary to the position of the Council of International Court for Justice from 1948 and UN General Assembly's Resolution from the same year, according to which countries are admitted as UN members only under explicitly regulated conditions in the Article 4 of the Charter and that those conditions cannot be expanded with additional conditions (from political or any other reasons), in Security Council and General Assembly's resolutions from 1993 by which Macedonia is admitted as UN member two additional conditions are imposed to this country: to accept FYROM reference for use within UN and to negotiate with Greece about its name. International Crisis Group in 2001 as well as Macedonian Academy of Sciences and Arts in its Aide-memoire in 2002 also came to a conclusion that Article 4 from the Charter has been violated with those resolutions.
According to that, additional conditions imposed on Macedonia with its admission in UN are illegal, thus Macedonia's obligations which result from them are illegal (i.e. to negotiate with other country about its name).
Thus a key for solving the name issue of Republic of Macedonia in UN is to bring forth new resolution to General Assembly which would exclude additional conditions imposed on Macedonia in appropriate resolutions during its admission as UN member. Macedonia alone or together with other member countries can initiate the suggestion for such General Assembly resolution if it appraises that result from the vote is positive. If, on the other hand, in spite of a long and intensive political activity and "lobbying," absolute conviction in a positive aftermath of such resolution is not acquired, then Macedonia should question the legality of additional conditions in front of International Court of Justice (through appropriate resolution of General Assembly). But the Court in 1948 had already given its interpretation to Article 4 from the Charter, ruling out any expansion of the conditions for admission. Thence its position on the same issue cannot be any different from that of 1948. In UN General Assembly's practice no case has been noticed when UN General Assembly has not taken into consideration the advisory opinion of International Court of Justice.
Solving the problem of the name of RM in the UN by requesting advisory opinion from International court of justice is the most desirable path for Macedonia to follow since it includes only principles and norms from international law, Court's authority that once came out for this issue and avoids games of political interests where Macedonian stakes are relatively small. It is only with such approach towards the problem that the sovereign right for choice of name bears its full "weight." In that case Greek demands for intervention in foreign name would remain groundless. Only that approach provides politically neutral solution for the problem and enables international interactions, member of which is Greece, to conduct common politics towards Macedonia (including recognition of its constitutional name), referring to political will of world community (expressed in UN). Greece, of course, has sovereign right to call Macedonia whatever it desires.
Copyright 2004 by Dr. Igor Janev
Reproduction allowed for nonprofit and educational purposes, with full attribution only.
Igor Janev, PhD is a member of the New York Academy of Science, member of the Academic Council for the System of the United Nations, member of the American Society of International Law, former Special counselor of the Ministry of Foreign Affairs (for the state name) of Republic of Macedonia, scientific associate of the Institute for Political Studies in Belgrade. He authored 5 books on international relations, foreign policy and international law, and numerous scientific papers published in domestic and international journals.
Strategy to Return Macedonia's Constitutional Name in the UN
By Igor Janev, PhD
Diplomatic initiative that Greece has undertaken to EU members regarding the issue of constitutional name of Macedonia in UN, as a result of acknowledging Macedonia's constitutional name by USA, will set in motion a new ground swell of political pressure in order to solve the name issue within UN. Greece, as expected, will put great effort in persuading other countries from international community not to acknowledge Macedonia by its constitutional name and will strengthen the pressure in UN as well as USA for finding a solution which will assume change of constitutional name. Partially, this pressure is felt in the tone of the latest letter which Bush sent to Greek President of Government in which as we are aware he indicates that USA will accept any agreed solution which will result from UN negotiations. State Department spokesperson pointed out this on a press conference right after the announcement of the recognition, but added that USA "recognize Macedonia by the name chosen by the Government and people."
If this additional explanation can be understood as recognition by USA to the right a sovereign country to be able to choose its name in a sovereign manner, then USA statements that they will accept any agreed solution for the name which will result from UN negotiations can be interpreted as "ways to comfort" (Greece), or in the frameworks of a real politics in which political goals and legal principles are frequently opposed. Because the right of a certain country for sovereign choice of its name excludes obligations of that country for negotiations with other country. However, USA expressed political will to recognize Macedonia's constitutional name and it stands as a fact; the recognition itself also stands as a fact as well as all the legal and political consequences of that fact. Greek side has grasped quite well the meaning of those facts and its political action on international arena is quite understandable. Macedonian side should also comprehend utterly seriously the given situation and should initiate action to affirm its positions about this issue and to achieve its sovereign right to choose its own name, instead of amortizing the effects of the Greek political-diplomatic actions.
Macedonian Government, as I had written before, should undertake a broad diplomatic action in order to explain that the name choice is sovereign and inherent right of every country and that denial of such right, as conducted in the aforementioned UN and Security Council's resolutions, means denying the right through illegitimate illegal process to have name at all. This results from the fact that name as legal identity of internationally legal subject such as the state, is essential part of its subjectivity thus it cannot be object of deprivation, imposing and/or negotiating. On the other hand, the name does not imply legal consequences (for instance, the right to foreign territories) and it should be further taken into account that with Amendments introduced in its Constitution, Macedonia explicitly disavows itself from such interpretations. These are basic arguments which diminish legal effect of the Greek argument that the name Macedonia implies "territorial pretensions." The name of a country itself neither implies nor influences territorial rights and obligations of that country as well as other countries. This argument refers to other rights and obligations of countries as well (cultural, historical, etc).
Regarding this, Macedonian strategy for establishing the constitutional name in UN should not be based on the popular "double formula" suggested from Crisis Group. This political formula has no reference in international law. If a country has a sovereign and natural basic right to have a name (jus cogens) thus a right to choose in a sovereign manner (i.e. to establish its legal identity as important element in its international subjectivity and statehood), then the subject matter for negotiation on international and internal (for Greece only) name is obviously ridiculous. This formula is a political nonsense not to mention a legal one since it ignores the basic idea for Greek opposition to international use of the name Macedonia: it does not refer to Greece calling Macedonia whatever it likes but to prevent International community to recognize Macedonia with its constitutional name. Thus, it is quite clear that Greece would never accept "double formula" as basis for negotiations on the name issue. The insistence from Macedonian side on "double formula" as the basis for negotiations about the name is seen from aside (as well as from Greece) as naive method for obstruction of negotiations. Generally, if Macedonia is determined to keep its constitutional name, any "political formula" cannot present basis for negotiations with Greece in UN: obstruction in more or less obvious manner has to remain (as it has remained so far) the basic means of Macedonian strategy. It is contrary to UN resolutions from 1993 bound by admission of Macedonia in UN where negotiators are requested to reach a "prompt solution for the dispute." Lack of sanctions for negotiators because they did not fulfill this part of resolutions can be interpreted as "silent acknowledgement" of the world community that the choice of name is a sovereign right of every country which is encouraging for Macedonian side's position and tactics in negotiations (i.e. practically for their obstruction). However, this approach to the name issue of Macedonia in the UN which is based on the principle "laisser passer" as well as on hope that in time more countries will recognize Macedonia with its constitutional name, holds Macedonia in non equal status in UN, permanently offends its dignity, while the recognition of constitutional name in bilateral relations makes it an instrument for political calculations (as shown with recent US recognition of constitutional name). This last thing is the most dangerous element in the political approach for solution of the problem of our constitutional name: in particular moment other political priorities can be grasped (or treated by political elite) as more important than the name (for instance EU admission) and to bring to revocation of constitutional name. That is why legal approach for solution of the name issue seems the most adequate. Current international law gives Macedonia the clearest and the strongest arguments and means to return its constitutional name within UN.
Legal arguments also represent the best basis for negotiations with Greece in UN in the framework of any "political formula." One day everybody will have to realize (explain) that parts of resolutions of Security Council and UN General Assembly for Macedonia's admission in UN which impose the reference FYROM and obligations for Macedonia to negotiate with Greece for its name represent ultra vires acts. These conditions, even if the state accepts them cannot be voted for. On the other hand, there was a vote on these conditions during the admission of RM in UN in 1993 in two institutions (UN Security Council and UN General Assembly) thus violating its authorizations in these two institutions of the Organization. These violations of authorizations are crude breaking of Charter of the UN which is why the set conditions for Macedonia's admission in UN are illegal. This should be one of the basic legal arguments in talks with Greece about the name in UN.
In order to initiate action for establishing the constitutional name it is indispensable to mobilize and professionally strengthen the entire relevant staff potential in the adequate state institutions (President and Foreign Ministry). Our diplomatic missions especially in EU countries and in countries where residences of key international organizations are located should be completely adjusted to clinch arguments for their position which refer to admission and status of Macedonia in UN. One of the basic elements of those arguments would be clear indication that additional conditions for Macedonia's admission in UN are contrary to Articles 2 and 4 from UN Charter. Article 2 refers to sovereign equality of state members, while article 4 refers to the procedure for admission in agreement with explicitly regulated conditions for admission.
Procrastination of solution of name issue which has been practiced from all the previous governments is not in Macedonia's favor. As it is well known, FYROM reference, does not define one unequal legal status for Macedonia in UN, especially in the area of its representation. That status is contrary to the UN Charter itself and with other international legal acts. Furthermore, stalling of this issue's solution has repercussions with our relations with EU. Until this problem is solved it seems that Greece will not ratify Stabilization and Association Agreement. The obligation for negotiations with Greece about the name is in the aforementioned UN resolutions but it is precisely that part in them which is unlawful from a legal point of view (overstepping of the authorizations of UN institutions). According to that, instead of solving the problems caused from this illegal act it is necessary to work upon corrections of illegality of that act; instead of solving the consequences, their cause should be eradicated. With other words, instead of negotiations with Greece or trying other political means the issue of constitutional name of Macedonia in UN should be solved with legal means in the framework of UN itself where the problem has started. Violation of Article 4 from UN Charter upon Macedonia's admission as UN member by UN institutions was irrefutably proven in my work in "American Magazine on International Law" in 1999. Contrary to the position of the Council of International Court for Justice from 1948 and UN General Assembly's Resolution from the same year, according to which countries are admitted as UN members only under explicitly regulated conditions in the Article 4 of the Charter and that those conditions cannot be expanded with additional conditions (from political or any other reasons), in Security Council and General Assembly's resolutions from 1993 by which Macedonia is admitted as UN member two additional conditions are imposed to this country: to accept FYROM reference for use within UN and to negotiate with Greece about its name. International Crisis Group in 2001 as well as Macedonian Academy of Sciences and Arts in its Aide-memoire in 2002 also came to a conclusion that Article 4 from the Charter has been violated with those resolutions.
According to that, additional conditions imposed on Macedonia with its admission in UN are illegal, thus Macedonia's obligations which result from them are illegal (i.e. to negotiate with other country about its name).
Thus a key for solving the name issue of Republic of Macedonia in UN is to bring forth new resolution to General Assembly which would exclude additional conditions imposed on Macedonia in appropriate resolutions during its admission as UN member. Macedonia alone or together with other member countries can initiate the suggestion for such General Assembly resolution if it appraises that result from the vote is positive. If, on the other hand, in spite of a long and intensive political activity and "lobbying," absolute conviction in a positive aftermath of such resolution is not acquired, then Macedonia should question the legality of additional conditions in front of International Court of Justice (through appropriate resolution of General Assembly). But the Court in 1948 had already given its interpretation to Article 4 from the Charter, ruling out any expansion of the conditions for admission. Thence its position on the same issue cannot be any different from that of 1948. In UN General Assembly's practice no case has been noticed when UN General Assembly has not taken into consideration the advisory opinion of International Court of Justice.
Solving the problem of the name of RM in the UN by requesting advisory opinion from International court of justice is the most desirable path for Macedonia to follow since it includes only principles and norms from international law, Court's authority that once came out for this issue and avoids games of political interests where Macedonian stakes are relatively small. It is only with such approach towards the problem that the sovereign right for choice of name bears its full "weight." In that case Greek demands for intervention in foreign name would remain groundless. Only that approach provides politically neutral solution for the problem and enables international interactions, member of which is Greece, to conduct common politics towards Macedonia (including recognition of its constitutional name), referring to political will of world community (expressed in UN). Greece, of course, has sovereign right to call Macedonia whatever it desires.
Copyright 2004 by Dr. Igor Janev
Reproduction allowed for nonprofit and educational purposes, with full attribution only.
Igor Janev, PhD is a member of the New York Academy of Science, member of the Academic Council for the System of the United Nations, member of the American Society of International Law, former Special counselor of the Ministry of Foreign Affairs (for the state name) of Republic of Macedonia, scientific associate of the Institute for Political Studies in Belgrade. He authored 5 books on international relations, foreign policy and international law, and numerous scientific papers published in domestic and international journals.
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