Μια ενδιαφέρουσα ανάλυση για τις Πρέσπες από

Published on

 June 18, 2018      

  Author: Anna Ventouratou

https://www.ejiltalk.org/the-settlement-agreement-between-greece-and-the-former-yugoslav-republic-of-macedonia/

On 12 June, Athens and Skopje announced that they have reached an agreement to resolve a dispute over the former Yugoslav Republic’s name that has troubled relations between the two states for decades. The agreement was signed at Prespes Lake, a lake at the border of Albania, Greece, and the former Yugoslav Republic of Macedonia, on 17 June. Despite the historic significance of the deal, following its announcement, the two governments have faced furious backlash. Voices on both sides condemn the agreement in the strongest possible terms, with the President of Macedonia, Gjorge Ivanov, rejecting the deal point-blank and the Greek opposition submitting a motion of no confidence against Prime Minister Alexis Tsipras and his government, which failed to carry late on the night of 16 June, a few hours before the signing of the Agreement.

The present contribution provides an overview of the main points of the Agreement reached between the two neighbours to end their 27-year-long bitter dispute.

Historical Background

The former Yugoslav Republic of Macedonia is the interim designation of the constitutionally named ‘Republic of Macedonia’ (Republika Makedonija) at the time of accession to the UN. The Republic of Macedonia declared independence in 1991 at the dissolution of the SFRY, and sought international recognition. The use of the name ‘Macedonia’ has created a long-lasting dispute with the neighbouring country of Greece. ‘Macedonia’ is the name of an administrative region in northern Greece and originates from the ancient Greek kingdom of Macedon (Makedonía), which constitutes a very important component of Greek history. National (and nationalistic) sentiment runs high on both sides, one of the main reasons that the naming controversy has spiralled into such a long-standing international dispute.

The dispute first escalated after FYROM’s declaration of independence, when Greece opposed its recognition by the EC, arguing that its name, use of symbols associated with the Greek cultural patrimony (such as the Sun of Vergina) as well as a number of provisions in its Constitution implied territorial claims over Greek Macedonia. Greece similarly opposed the entry of the newly independent state to the UN. Despite its objections to any change of its name, the new state was finally admitted to membership in 1993 under the provisional designation ‘former Yugoslav Republic of Macedonia’, pending settlement of the difference between the parties.

The dispute has since seen several further escalations. In 1994 Greece imposed unilaterally a trade embargo against FYROM, leading, among others, to the European Commission instituting proceedings against Greece. Against this backdrop, attempts were made to normalize the relationship between the two States, leading to the adoption of an Interim Accord in 1995. The Accord provided, inter alia, for Greece’s non-opposition to the accession of FYROM to international organisations under its provisional name. Greece’s opposition to FYROM’s accession to NATO in 2008 lead to the ICJ 2011 judgment, which, by fifteen votes to one, found Greece in breach of its obligations under the Interim Accord.

Having admittedly lingered for way too long, the dispute is now closer than ever to a final settlement. The key points of the final Agreement, as published, are the following.

The New Name and its ‘Erga Omnes’ Character

The mutually agreed name under Article 1.3.a of the Agreement is ‘Republic of North Macedonia’ or ‘North Macedonia’ (Severna Makedonija). The new name shall be used ‘erga omnes’: in relation to everyone and for all uses and purposes, both domestic and international. First and foremost, FYROM will adopt this name not only by virtue of the Agreement, but also by virtue of its own constitution, which shall be amended accordingly. The Agreement further requires amendment of other constitutional provisions (Art 1.12), deemed as potentially implying irredentist claims. Article 1.3.g further stipulates such internal procedure will be not only binding but also irrevocable. This is one of the most telling elements of the agreement – it is not often that a treaty explicitly requires one of the parties to proceed to constitutional reform for the fulfilment of its obligations thereunder. The means of domestic implementation are usually left to the discretion of the parties.

Further, FYROM shall not only use exclusively the new name both domestically and in its external relations (Art 1.8 and 1.9) but it shall also request that all International Organisations, institutions and fora, as well as all UN member states, adopt and use the new name and related terminologies for all usages and purposes (Art 1.6). Naturally, in accordance with Article 34 of the VCLT, and as reaffirmed in Article 20.7 of the Agreement itself, the treaty may not create obligations for third states without their consent. FYROM itself will be internationally responsible to ensure the proper use of its new constitutional name in the conduct of its public affairs.

Nationality and Language

Article 1 provides that the nationality of North Macedonia shall be ‘Macedonian/citizen of the Republic of North Macedonia’. Further, the language of North Macedonia shall be the ‘Macedonian language’, a name already recognised by the Third UN Conference on the Standardisation of Geographical Names, held in Athens in 1977 (Arts 1.3.b and c). However, Article 7 of the Agreement explicitly qualifies the use of the terms ‘Macedonia’ and ‘Macedonian’ under Article 1. According to the Agreement, the history and culture of Greece and the Greek region of Macedonia, from antiquity to present day, are ‘distinctly different’, from that of North Macedonia. And for the avoidance of doubt, Article 7.4 explicitly specifies that the Macedonian language is within the group of South Slavic languages and that all attributes of North Macedonia ‘are not related to the ancient Hellenic civilisation, history, culture and heritage of the northern region of Greece’. In other words, citizens of North Macedonia may call themselves Macedonians and their language Macedonian but they may no longer claim to be the ‘sons and heirs’ of Alexander the Great.

Symbols and Historic, Archaeological and Educational Matters

To further buttress the aforementioned clear distinction, Article 8 of the Agreement provides that FYROM shall review the status of monuments, public buildings and infrastructures on its territory and make sure that they do not refer in any way to ancient Hellenic history and civilisation (Art 8.2). Moreover, Article 8 explicitly prohibits the use of the Sun of Vergina by FYROM and requests the removal of the symbol from all public sites and usages within six months from entry into force of the Agreement.

Another innovation of the Agreement is the establishment of a Joint Inter-Disciplinary Committee of Experts which, notably, will be in charge of ensuring that no school textbooks or auxiliary material contains any irredentist/revisionist references (Art 8.5). Quite remarkably, this provision is the only one subject to provisional application and will take effect within one month from signature (Art 20.4). Naturally, if the Agreement does not enter into force, then all provisions shall have no further effect.

Commercial Names, Trademarks and Brand Names

The Agreement does not itself settle the issue of commercial names, trademarks and brand names but Article 1.3.h describes the process for such determination. The parties undertake to support and encourage their business communities to engage in good faith negotiations on the matter in order to reach mutually accepted solutions. This process shall be assisted by an international group of experts in the context of the EU, with representatives of both parties and the contribution of the UN and ISO. The group shall be established within 2019 and conclude its work within 3 years. In the meantime, each party may continue to use their existing commercial names.

Entry into Force – step by step

Articles 1.4, 1.11 and 1.12 describe the procedure for the entry into force of the Agreement step by step. FYROM shall submit without delay the Agreement to its parliament for ratification. Following ratification, it may, at its own discretion, decide to hold a referendum. Upon ratification or following such referendum (if it does take place) FYROM shall commence procedures for the prompt amendment of its constitution. Constitutional amendments should be concluded entirely by the end of 2018. Upon notification of the constitutional amendments, Greece shall promptly ratify the Agreement. Article 20.3 specifies that the Agreement shall enter into force upon notification of ratification by the Greek Parliament. Upon its entry into force it terminates and replaces the 1995 Interim Accord (Article 1.1). The Agreement, under Article 20.9, will remain into force indefinitely and irrevocably. Further, no modification of Articles 1.3 and 1.4 is permitted.

In accordance with the Vienna Convention on the Law of Treaties (VCLT), Articles 14 and 24, the Parties will only be bound by the Agreement when all the aforementioned conditions are fulfilled. Until that time, the Parties are only bound to refrain from acts which would defeat the object and purpose of a treaty, under Article 18 VCLT. Obvious as this may seem to an international lawyer, there seems to be significant confusion on this matter (see earlier post of Antonios Tzanakopoulos on this blog).

Admission to International Organisations

FYROM shall seek admission to international organisations under its new name and Greece undertakes not to object to such membership. With regards to the EU and NATO, Greece specifically undertakes to support the opening of accession negotiations under the agreed terminologies already before entry into force of the Agreement. Nonetheless, Greece has no obligation to ratify any accession instrument before its entry into force (Art 2.3).

Dispute Settlement Provisions

Failing negotiations for the settlement of possible disputes under the Agreement, the parties may request the good offices of the UN Secretary General. If no resolution is reached through such means, the dispute may be submitted to the International Court of Justice in accordance with Article 36.1 ICJ Statute. The provision of Article 19.3 is interesting in stating that the two parties shall endeavour to bring any dispute to the Court ‘by joint submission’, failing which each party can submit a dispute to the ICJ individually.

Final Remarks

After 27 years of talks – and many protests – this deal presents a historic opportunity for the two countries to settle their diplomatic feud and move on. In fact, the Agreement includes numerous forward-looking provisions towards the establishment of a strategic partnership between the two states in a number of sectors. However, there’s still a long way to go until final settlement. To set the Agreement into force, both governments will have to face down opposition within their own countries. This is arguably a sign that the deal reflects a fair political compromise of the interests of the two states.

Filed under: EJIL Analysis, Government, Territorial Disputes

 

Tags: erga omnes, Greece, Republic of Macedonia, Yugoslav Republic of Macedonia

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6 Responses

1. Andreas Chorakis

   June 18, 2018 at 12:00

   Dear Anna,

   It is about a very good analysis about the construction and the interpretation of the agreement. However, i would like your opinion on the matter the use of erga omnes and what kind of obligations for the North Macedonia and the international community, this term creates.
2. Andrew Filis

   June 18, 2018 at 12:23

   Many thanks for the synopsis of what’s been agreed between the parties.

   Other than the unconscionable backdrop to the agreement — namely, a sovereign state contracting with another sovereign state to impose how the latter should self-determine, and how the rest of the international community should refer to the latter, which is an affront to fundamental notions bundled within that of self-determination — what I’m most interested in is how elements of coercion on the part of the Greek state since the declaration of Macedonia’s independence play out in terms of invalidity and termination within treaty law under articles 52 and 53. In fact I’d go as far as argue that the purported ‘erga omnes’ aspects of the agreement in terms of appellation involve third party interests, and if anything, the international community ought not feel bound to honour the ‘wishes’ of Macedonia to be referred to as ‘North Macedonia’ given that any such acquiescence (cf., also article 45, VCLT) essentially and in the final analysis weakens the erga omnes obligations of states not to facilitate the undermining of aspects of the jus cogens of self-determination. Let alone Greece being bound by the erga omnes character of Macedonia’s self-determination, which the former seeks to condition and qualify according to its own monopoly of aspects of pre-Greek, proto-Greek, Greek, Macedonian, Roman, etc history and so on.

   In sum, there is much in the agreement for international lawyers to reflect upon involving what parties may and may not lawfully contract out from general international law norms, and what the implications may be for fundamental aspects of the notion of self-determination. A separate article on these aspects would certainly be welcome and I suppose I might as well prepare it myself when I have the time.
3. Eleni Methymaki

   June 18, 2018 at 21:32

   Dear Andrew (if I may),

   I am sure Anna will also have comments/answers to the questions you’ve posed, but briefly in response to your comment I would like to highlight the following.

   SC Resolution 817 (1993), para 2, pursuant to which the Council recommended to the General Assembly the admission of the State in the United Nations under the provisional name ‘former Yugoslav Republic of Macedonia’ provided that such provisional name should be used ‘pending settlement of the difference that has arisen over the name of the State’. In the same vein, SC Resolution 845 (1993), para 2, urged the two States ‘to continue their efforts … to arrive at a speedy settlement of the remaining issues between them’. Arguably then the Prespes Agreement constitutes such final settlement of the disputed issues between the two States, including among others the name of FYROM, in accordance with the relevant SC resolutions.

   For its part, the principle of self-determination (which is more accurately vested in ‘peoples’ and not ‘States’, see UN Charter Art 1, para 2; ICCPR and ICESCR common Art 1, para 1; GA Res 1514 (XV); GA Res 2625 (XXV)) encompasses the right of peoples ‘freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the [UN] Charter.’ This right then is to be exercised through the peoples representatives (see e.g. ICJ’s Western Sahara Advisory Opinion), i.e. through its government or the Parliament and/or through the conduct of a referendum or plebiscite. It would be thus quite unclear why the entering into the Prespes Agreement by the democratically elected FYROM government does not constitute in fact an exercise and expression of the right to self-determination of the peoples of this State (assuming of course that the chosing of a State’s name falls within the protective realm of the principle in the first place). This would be even more so, since the Agreement explicitly provides for the possibility of the conduct of a referendum prior to the constitutional change in FYROM, referenda being the modality par excellence through which the right to self-determination has been exercised in international practice.

   Finally, I am not sure to which ‘elements of coercion on the part of the Greek state since the declaration of Macedonia’s independence’ you are referring as you are not making any specific claim in your post, but I would assume that one such putative act would be the trade embargo imposed by Greece in 1995, while you may also be thinking of the protesting by Greece to the admission of FYROM in certain international organizations. Notwithstanding the fact that the 1995 embargo was followed by the conclusion of the Interim Agreement, and that protesting to admission to international organizations may lie with a member’s right, even if such actions could be considered as a form of ‘economic or other coercion’ on behalf of the Greek state (and not actually permissible retorsion), they would not make the Agreement null and void under Art 52 VCLT. According to the mainstream reading of this provision only the use or threat of military force is accepted as a ground for a treaty to be declared null and void (see the discussion in the travaux preparatoires of Art 52 and M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), 642-44).

   More generally, although the concept of ‘unequal treaties’ is not unknown to international law, caution is warranted when such claims are made in the context of the exercise by a State of its sovereign treaty-making power (which includes both the undertaking of rights and obligations), as they presume and imply a complete and absolute imbalance of power between the signatories parties. Furthermore, instances of such treaties are to be found in a very different historical and political context, and general international law as it currently stands does not recognise them as a separate category for the invalidation of a treaty. Taking into consideration that any treaty negotiation and conclusion will always contain concessions and compromises from one party to the other, it would be very difficult to substantiate the claim that a party has been coerced to enter into an international agreement with another.

   Kind regards,
   Eleni
4. Andrew Filis

   June 19, 2018 at 10:29

   Hi Eleni, I find your thoughts on my initial comments unduly biased towards the Greek side despite their seemingly objective positivism.

   While it is true that coercion within VCLT has been limited to threat or use of force, the anxieties on the part of states pushing for a more expansive scope to the notion of coercion in VCLT found some acknowledgement in the Final Act to VCLT. I appreciate that there has been no threat or use of force on the part of Greece, and the coercion that I alluded to has been Greek intransigence in the naming dispute — witnessed in bullying tactics in diplomacy etc — which essentially seeks to qualify how a people may exercise its fundamental right to self-determination.

   Although are you are correct in stating that invalidity/termination on the basis of Art 52 VCLT is unfeasible, arguing conflict with jus cogens, and a synthetic reading of Arts 45, 53, and 65, could potentially provide well-reasoned legal argumentation in support of non-performance on the part of Macedonia. It is certainly one I would be interested in exploring citing GIL norms that may not be contracted out of via P(articular) IL means to which you refer.

   While there are successive acts from UN organs that you cite which seek to regulate dispute within the context of UN, the UN legal order itself (including its sui juris norms) is an instance of particular international law, despite the fact that it contains norms that are thought to reflect existing custom or to crystallise developments in custom and so on. In that sense, while parties to that particular law order may seek to apply the norms of that order inter-se, there is something to be said about to what extent they may contract out from general international law including the jus cogens of self-determination (of peoples).

   As you are probably aware, the naming dispute is not taking place within some historical vacuum — the macedonian-speaking people within Greek territory have faced, among other things, linguistic oppression by the Greek state at various stages of the history of the modern Greek state culminating in the post-war period when they were driven out in their droves, and subjected to ethnic cleansing in the sense that many were not allowed to return to their ancestral lands within Greek territory even following the Metapolítefsis period. Sections of Macedonian society involve precisely those people who have directly faced systemic oppression on the part of the Greek state. Add to this past and sustained injustice the fact that Macedonia, since its declaration of independence, has had to deal with a capricious neighbour to the south that seeks to condition the exercise of self-determination of the people of Macedonia in line with its own national narrative and anxieties.

   The crux of my argument is that the principle of self-determination amounts to jus cogens. It extends over the right of a people to declare and develop its ethnocultural identity and so on without outside interference. Restrictions on such aspects of self-determination — as is the case with Greek intransigence and interference — amount to curtailments of jus cogens. It doesn’t matter that Macedonia may acquiesce to this. It is the erga omnes obligations of the international community of sovereign states to denounce Greek interference in defending their erga omnes interests in upholding jus cogens. The fact that the parties in various settings predicated on particular international legal regimes are playing along does not limit the content of that jus cogens. Although, I have no faith in an international ‘community’ of states (that possess disparate sets of interests) to uphold their abstract, albeit legal, obligations regarding the integrity of general international law, the lawyer’s task is to set aside political expediencies and to be concerned with those of legal principle and integrity.

   The international community is indulging Greece’s petulance. The Macedonian side — itself under diplomatic pressure to reach agreement in this matter — may be ‘willingly’ indulging Greece, but those dealings are taking place within the context of political /diplomatic expediences rather than that of legal principle. It is the latter that I want to highlight and tease out from a GIL perspective its implications for the jus cogens of self-determination.
5. Anna Ventouratou

   June 19, 2018 at 13:00

   Dear all,

   Thank you very much for your comments.

   Dear Andreas,

   the Agreement includes a number of provisions attempting to safeguard the erga omnes character of the name. First and foremost, the name should be changed constitutionally – therefore, the first ‘obligation’ for FYROM (although not legally binding, but a prerequisite for the Agreement to enter into force) is to adopt the new name by constitutional amendment. Arguably, a legal obligation to this respect may stem from Article 18 VCLT – see on this matter the earlier post of Antonios on this blog, arguing that refusing to bring the required constitutional amendments before parliament, or bringing them there but recommending that the parliament vote against them would be an example of bad faith. Now, once the Agreement has entered into force, it creates for FYROM the following obligations: it shall notify all international organisations, institutions and fora as well as all UN member states and request that they adopt and use the new name for all usages and purposes, including bilateral relations and communications (Art 1.6); it shall use such name in all its international relations (Art 1.8); it shall change all existing official documents in accordance with the transitional periods in Art 1.10. The international community (third states) bears no obligation under this Agreement in accordance with Art 34 VCLT and Art 20.7 of the Agreement itself. Thus, as explained in the post, FYROM will bear international responsibility for the proper use of its new constitutional name (e.g for not requesting that the international community uses the new name, for encouraging other states or institutions to use different terminologies, for not correcting them if necessary and so on so forth).

   With regards to enforcement – which I suspect was the essence of your question – the Agreement provides, firstly, in Art 1.13 that parties may request the immediate rectification of mistakes, errors or omissions in the proper reference of the name and the avoidance of similar mistakes in the future. If this doesn’t work, there’s always Article 19 on the Settlement of Disputes (negotiations – good offices – submission to the ICJ). The flaws in this are the ones inherent to the system of international law. But to the extent possible, the Agreement provides the means to react to uses of the name and related terminology that are not in accordance with the Agreement.

   Dear Andrew,

   first of all, it seems that we all agree that an argument based on Articles 51 or 52 VCLT cannot be made in the present case – even under a very expansive interpretation of the scope of such provisions, an Agreement that provides for ratification under the internal procedures of a state and even for a referendum on the matter before entry into force could not possibly be considered as concluded under coercion. A simple look at the pictures taken at the ceremonial signature of the Agreement in Prespes Lake would further substantiate this. The entry into force of the present Agreement requires the prior explicit expression of consent to be bound in at least 3 (or potentially 4) steps: signature, ratification, (referendum), constitutional amendment. It thus requires the consent of the government, the democratically elected parliament and potentially the majority of the people in direct vote. I do not see how such an Agreement could be invalidated on the basis of coercion after its entry into force. Article 45 VCLT which you cite yourself also seems to support the argument that under the present circumstances FYROM would not be in a position to invoke such grounds for invalidating the Agreement after its entry into force since it is already very well aware of all the facts and it still consents to the conclusion of the Agreement.

   With regards to your second point, the provisional designation of FYROM was decided by virtue of Security Council Resolution 817 (1993) which, along with Resolution 845 (1993), urges the two states to settle the dispute on a bilateral basis under the auspices of the UN Secretary-General. This has been done by virtue of the present Agreement (see Art 1.2 of the Agreement). To invalidate such Agreement on the basis of Article 53, one would have to assert not only that a jus cogens rule prohibits a state to agree to a new name, but also that this rule has been previously violated or blatantly disregarded by the political bodies of the UN.
6. Anna Ventouratou

   June 19, 2018 at 19:52

   Eleni, many thanks for your comment. Of course my comment builds on yours, which I believe that accurately describes the law as it is and I had nothing further to add.

   Best wishes,
   Anna