Dr. Janev: Mak Plan of Action at the UN

[George S.]

Dr. Janev: Mak Plan of Action at the UN



Tuesday, 21 August 2012



http://macedoniaonline.eu/content/view/21668/45/



To:
H.E. Ban Ki-moon
Secretary General,
United Nations,
New York

Re: Request for inclusion of a Resolution on the UNGA’s next session agenda


Your Excellency,

I have the honour to address you with the questions of legality of the conditions imposed on Republic of Macedonia for its admission to UN membership and the legal status of Macedonia in the United Nations.

In this context, I take the liberty of reminding you that the admission of Republic of Macedonia to UN membership in April 1993 by the General Assembly (GA Res. 47/225 (1993)), pursuant the Security Council recommendation for such admission (SC Res. 817 (1993)), was associated with the provision that the applicant state be “provisionally referred to for all purposes within the United Nations as the Former Yugoslav Republic of Macedonia, pending settlement of the difference that has arisen over the name of the State”. The last part of this provision implies negotiation with Greece over the name of Macedonia, and is more explicitly spelled out in SC Res. 817 (1993).
I would also like to remind you that the objections of Macedonian Government to the above mentioned denomination FYROM and to the non-standard admission procedure, contained in UN Doc. S/25541 (1993), were ignored.

The aim of the present letter, Sir, is to submit our request to include in the agenda of the next session of the UN General Assembly a resolution requesting an advisory opinion from the International Court of Justice regarding the legal validity and legality of above mentioned resolutions in their parts related to the use of a provisional name for Macedonia within UN and to negotiate with Greece on that subject.
The basis for this request is our strong view that the conditions for admission of Republic of Macedonia to UN membership, namely

(i) acceptance to be provisionally referred to, within the UN, as Former Yugoslav Republic of Macedonia, and


(ii) acceptance to negotiate with Greece over its name, are inconsistent with the provisions of the UN Charter. This inconsistency is manifested, in our opinion, on three levels:

1) procedural level (right of a state to unconditional admission to UN membership once it has been recognized, by the judgement of Security Council, that the state fulfils the criteria for admission set forth in Article 4(1) of the Charter);

2) substantive level (interference of the UN Organization in matters of a state –such as the choice of its constitutional name – which are essentially within the domestic jurisdiction of that state, contrary to Article 2(7) of the Charter); and

3) membership legal status (inequality with other UN member-states due to the additional obligation (ii) and derogated juridical personality in the field of representation due to the condition (i), contrary to the principle of “sovereign equality of the Members”, Article 2(1) of the Charter).

That the conditions (i) and (ii) served indeed as conditions for admission of Macedonia to UN membership, and are additional with respect to those set forth in Article 4(1) of the Charter, is evident from:

a) the neglect of the objection of Macedonian Government to the imposition of the condition (i) (contained in UN Doc. S/25541(1993);

b) they are functionally disconnected with the judgement on admission as they transcend in time the act of admission (thus transforming themselves into membership obligations);

c) they are introduced despite the explicit recognition in SC Res. 817 (1993) that “the applicant fulfils the criteria” of Article 4(1) of the Charter for admission;

d) the fulfilment of the obligation (ii) does not depend solely on Macedonian Government, but essentially on the recognition of Macedonian legal identity by another state, which is contrary to the criteria on the legality of imposing conditions relating to the recognition of a state by another state, member of the UN, enshrined in the Advisory Opinion of May 28, 1948 of the International Court of Justice.

The procedural inconsistency of the conditions (i) and (ii) with the Charter’s provisions follows, in our view, clearly and directly from the interpretation of Article 4(1) of the Charter by the International Court of Justice given in its Advisory Opinion of May 28, 1948 as a legal rule. We remind that this interpretation was adopted by the General Assembly the same year (see, GA Res.197/III (1948)). According to that interpretation, the conditions laid down in Article 4(1) of the Charter are explicit and exhaustive (i.e. they are necessary and sufficient); once they are recognized as being fulfilled, the applicant state acquires an unconditional right to admission to UN membership (and, conversely, the Organization has a duty to admit such applicant due to its “openness” for admission, enshrined in the same Article 4(1), and due to its universal character). In the words of Court’s Advisory Opinion, and the resolution GA Res.197/III (1948), “a Member of the United Nations, when pronouncing its vote in the General Assembly or Security Council, is not juridically entitled to make its consent on the admission of a state to UN membership dependent on conditions not expressly provided in Article 4(1)”.

The inconsistency of conditions (i) and (ii) with Article 2(7) of the Charter follows, in our view, from the fact that the name of a state (as a legal identity of an international legal person) is an essential element of its juridical personality, the choice by a state of its own name is, therefore, an inherent right of that state and belongs stricto sensu in the domain of its domestic jurisdiction. According to the principle of separability of domestic and international jurisdictions, the choice of its own name by a state does not create international legal rights for that state, nor does it impose legal obligations on other states. Therefore, the name of a state per se has no relevance to the qualifications that may be legally considered in connection with the admission of that state to UN membership.

Finally, the conditions (i) and (ii) obviously define an unequal UN membership status for Macedonia with respect to other member-states. This status severely violates the principle of “sovereign equality of members” (Article 2(1) of the Charter) and strongly derogates the juridical personality of Republic of Macedonia. It is inconsistent with the principles of juridical equality of states (see, GA Res. 2625 (XXV) of 24 Oct.1970) and non-discrimination in representation and membership (see, UN Doc. A / CONF. 67/16 (March 14, 1975)).

I would like, Sir, to bring to your attention also the “Memorandum on the Legal Aspects of the Problem of Representation in the United Nations” (UN Doc. S/1466 of 1958), which also has relevance to the admission of Republic of Macedonia to the UN membership. In this document, prepared by the UN Secretariat for the Secretary General, it is clearly stated that the admission to UN membership, as a collective act of the General Assembly, is based on the right to membership of any state that meets the prescribed criteria for membership (Article 4(1) of the Charter) and has no relation to the recognition of that state by another state. The Greek opposition to the admission of Republic of Macedonia to UN membership under its constitutional name, and its reflection in the imposition of conditions (i) and (ii), was essentially linking impermissibly the two legal acts and their respective preconditions.

In connection with the views expressed above regarding the legal basis of the imposed conditions (i) and (ii) for admission of Republic of Macedonia to UN membership and the related to them legal status of Republic of Macedonia as a UN member, we kindly request that the attached Resolution be placed as an item on the Agenda of the next Session of the General Assembly of the United Nations.

I believe, Sir, that the clarification of the above legal matters by the International Court of Justice will help to better understand the legal quality and legal consequences of the resolutions GA Res. 47/225 (1993) and SC Res. 817 (1993) and indicate the directions of possible future actions.

Accept, Sir, the assurances of my highest consideration.


Sincerely yours,

George Ivanov
President of the Republic of Macedonia



RESOLUTION (proposed text)

The General Assembly

Considering Article 2 of the Charter of the United Nations,

Considering Article 4 of the Charter of the United Nations,

Considering Article 96 of the Charter of the United Nations,

Considering the General Assembly Resolution 113/II of 1947,

Considering the General Assembly Resolution 197/III of 1948,

Considering the Advisory Opinion of the International Court of Justice of 28 May, 1948,
For the purpose to determine whether additional conditions were imposed in the procedure of admitting “The Former Yugoslav Republic of Macedonia” to the membership of the United Nations, outside the scope of the exhaustive conditions of Article 4(1) of the Charter of the United Nations,

Decides to submit the following legal question to the International Court of Justice:

Are the specific conditions enshrined in resolutions GA Res. 47/225 (1993) of the General Assembly and SC Res. 817 (1993) of the Security Council in their parts relating to the denomination “Former Yugoslav Republic of Macedonia”, with the requirement for settlement of the “difference that has arisen over the name of the State”, outside the scope of the exhaustive conditions of Article 4(1) of the Charter of the United Nations and legally in accordance with the Charter of the United Nations?

[Daskalot]

So what exactly is this?
Can someone please explain this to me as you would explain it to a little child, so I can understand what is written.

[Vangelovski]

Originally Posted by Daskalot

So what exactly is this?
Can someone please explain this to me as you would explain it to a little child, so I can understand what is written.

Its an extreme over complication of what can be done with a simple diplomatic note, but without the dignity attached. Its Janev's old idea where he wants to obtain a ruling from the ICJ as to whether Macedonia's admission into the UN as FYROM and its negotiations over the name are in accordance with the UN Charter. Its a course of action that could potentially have a negative consequence, much like Gruevski's ICJ case.

[Daskalot]

So what are the pros and cons with doing it this way Vangelovski?

[Vangelovski]

Originally Posted by Daskalot

So what are the pros and cons with doing it this way Vangelovski?

There really are no pro's in Macedonia's specific circumstances. Even IF the ICJ agreed with Janev's view that those Security Council Resolutions are illegal, and even IF the UN Security Council accepted the ICJ's ruling and readmitted Macedonia under its state name and removed the requirement to negotiate with Greece, that does not really do anything.

Macedonians wrongly think that the UN is some sort of governing body that actually means something in the real world. It doesn't. Greece would still have the ability to prevent Macedonia entering any organisation under its state name, particularly the EU and NATO, because of the Interim Accord, which Gruevski had the ICJ affirm as valid. The result of the previous ICJ case was that in its view, the Interim Accord was valid and that Macedonia was obligated to continue negotiations and enter multilateral organisations as FYROM.

On a further point, it is very unlikely that the ICJ would even rule the SC Resolutions that Janev refers to as illegal because they have already accepted the Interim Accord as valid and that accord refers to these resolutions and is in part based on these resolutions.

The most likely outcome of any challenge in the ICJ would be reaffirming the legality and validity of those particular SC Resolutions, further diminishing Macedonian sovereignty.

Rather than making another idiotic and expensive mistake, Macedonia just needs to follow past UN practice, and simple logic, and circulate a diplomatic note simply stating that it will be referred to under its state name. End of story. I'm still astonished at how many Macedonians can't accept what is done as standard practice and continue to look for the most complicated and unlikely way out of this mess.

[George S.]

I just thought this article would provoke people to dicussion.Which it has.On the aspect of fyrom i don't think greece would let macedonia in because it would need to discuss a new mutually acceptable name.greece has said it would not allow a fyrom to enter nato or the eu..As stated that would be a mistake to do that there are clearly no prospects of that.
You know the umd wants macedonia to get into nato & eu under the fyrom name.But i don't think they realize greece won't allow that.They will use a veto at will.
There has got to be a smarter way of doing it someone has allready mentioned that we need to work within the un auspices & not outside the un as we are doing now .To have any hope of real solution.We need more cuntries to recognize us under our real name as wel the more the better.

[Vangelovski]

Further to my comments above, here is something to consider in relation to the ICJ and its ability to enforce its decisions against the Security Council. Its from Wikipedia, but very relevant and accurate.

The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States.

The problem was that these sanctions had been authorized by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, prima facie could not be regarded as appropriate since the action was ordered by the Security Council.

In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless the Court declared the application admissible in 1998.[20] A decision on the merits has not been given since the parties (United Kingdom, United States and Libya) settled the case out of court in 2003.

There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favor of the Security Council.

Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the Security Council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to impose consequences.

However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party."

For example, the United States had previously accepted the Court's compulsory jurisdiction upon its creation in 1946, but in Nicaragua v. United States withdrew its acceptance following the Court's judgment in 1984 that called on the U.S. to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. The Court ruled (with only the American judge dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war reparations...

...
The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of even cases to which they consented in advance to be bound.[29] Because the jurisdiction does not have binding force itself, in many cases the instances of aggression are adjudicated by Security Council by adopting a resolution, etc.. Therefore it is very likely for the member states of Security Council to avoid the responsibility brought up by International Court of Justice, as shown in the example of Nicaragua v. United States

http://en.wikipedia.org/wiki/Interna...urt_of_Justice

In addition, Janev is not even asking for a ruling - he's asking for an Advisory Opinion. What a merry-go-round!

In short, Macedonians just need to wake the F**K up to themselves and start acting like a free and sovereign people.

[makedonche]

Thanks for that assesment Tom...to all else...a quote from a famous Macedonian......."WAKE THE FUCK UP"

[George S.]

Does anyone know if australia made it on the security council???Looks like us macedonians are asleep at the wheel that there are avenues of which we could take.There must be a way where one country keeps interfeering in it's affairs,greece and macedonia should seek to tell it in uncertain terms to desist.We have to make them aware that before we can have any meaningfull dialogue greece has to stop it's interference.Greece is relentless on it's attack on macedonia.At the same time it says it has given macedonia a choice to change her name.Greece thinks that the name macedonia is only resrved for itself.So this waking up must be internal & we must as macedonians seek help in our recognition as macedonia within the circle of the un.