Dr. Igor Janev, Review of International
Affairs, Vol.LIII, no. 1108,
Oct-Dec 2002
Abstract
The present article examines
the legality of imposing additional conditions
on Macedonia’s admission to the United
Nations as spelt out in UN Security Council
(SC) resolution 817 (1993) and General
Assembly (GA) resolution 47/225 (1993).
These conditions include the applicant’s
acceptance of a provisional name and an
obligation to negotiate with another country
(Greece) over its final name. It is argued
that the imposition of these conditions
violates Article 4(1) and some other articles
of the UN Charter. The consequences of
the imposed conditions on the legal status
of Macedonia as a UN member are also examined.
The imposed conditions create a discriminatory
status for the member state and this is
in violation of Article 2(1) of the Charter.
It is shown that these violations of Charter
provisions create ultra vires act on the
part of the United Nations.
1. Introduction
The admission of Macedonia
to UN membership in April 1993 by the
UN General Assembly resolution 47/225
(1993) 1, pursuant the Security Council
resolution 817 (1993) 2 that recommends
such admission, was associated with imposing
on the applicant two additional conditions
with respect to those explicitly provided
in Article 4(1) of the UN Charter, namely:
acceptance by the applicant state (i)
of “being provisionally referred to for
all purposes within United Nations as
‘the former Yugoslav Republic of Macedonia’
pending settlement of the difference that
has arisen over the name of the state”,
3 and (ii) of negotiating with a neighboring
country (Greece) over its name. The condition
(ii) is implied in the second part of
above cited text, common to both GA Res.
47/225 (1993) and SC Res. 817 (1993),
and more explicitly in the provision of
the latter resolution by which Security
Council “urges the parties to continue
to cooperate with the Co-Chairmen of the
Steering Committee of International Conference
on Former Yugoslavia in order to arrive
at a speedy settlement of the difference”.
4 The reason for imposing these conditions
was given in the preamble of SC Res. 817
(1993) in which the Security Council,
after affirming that “the applicant fulfils
the criteria for membership laid down
in Article 4 of the Charter of the United
Nations”, observes that “a difference
has arisen over the name of the State,
which needs to be resolved in the interest
of the maintenance of peaceful and good-neighbourly
relations in the region”. 5 This observation
of the Security Council was apparently
based on the Greek allegation that the
name of the applicant “implies territorial
claims” against Greece.6 In order to complete
the picture, it should be mentioned that
despite the strong objection of Macedonian
government 7 to the formulation of SC
Res. 817 (1993), and the adoption by the
Macedonian Parliament of two amendments
to the Constitution of Republic of Macedonia
in 1992, 8 (affirming that Macedonia “has
no territorial claims against any of neighboring
states”, and that its borders can be changed
in accordance with the Constitution and
“generally accepted international norms”),
the text of the SC Res. 817 (1993) remained
unchanged.
The described situation
regarding the admission of Macedonia to
UN membership rises two major questions:
(1) are the imposed conditions on Macedonia
for its admission to UN membership in
accordance with the provisions of UN Charter,
and (2) what are the implications of imposed
conditions for admission on the legal
status of Macedonia in the UN Organization?
A detailed analysis of the
first question was given recently 9 on
the basis of advisory opinion of International
Court of Justice (ICJ) of 1948 10 (related
to the admission of states to UN membership)
and adopted by the General Assembly .11
The conclusion of that analysis, derived
directly from the mentioned ICJ advisory
opinion (stating that the conditions for
admission of a state to UN membership
laid down in Article 4(1) of the Charter
are exhaustive, i.e. their fulfillment
is necessary and sufficient for admission)
and the character of conditions (i) and
(ii) (which transcend in time the act
of admission and are, therefore, obviously
additional to those listed in Article
4(1) of the Charter), was that the resolutions
GA Res. 47/225 (1993) and SC Res. 817
(1993) are in violation with Article 4
(1) of the Charter as a legal norm. In
the present article we shall examine the
implications of the imposed admission
conditions on the legal status of Macedonia
in the UN Organization.
The subject draws its importance
from the fact that even after nine years
of negotiations, the “difference over
the name” between Macedonia and Greece
still remains, and there are no signs
that a “speedy settlement of the difference”
will be achieved any time soon, if at
all. Meanwhile, Macedonia continues to
be referred by a provisional name within
the UN system. Since the imposed admission
conditions on Macedonia and its peculiar
legal status in the UN are related to
its name, it is appropriate first to examine
the question of the right of a state to
free choice of its own name.
2. Legal Freedom of a State
in the Choice of its Own Name
The inherent right of a
state to have a name can be derived from
the necessity that a juridical personality
must have a legal identity. In absence
of such an identity, the juridical person,
such as a state, could to a large extent
(or even completely) loose its capacity
to interact with other such juridical
persons (e.g. conclude agreements, etc.)
and independently enter into and conduct
its external relations. The name of a
state is, thus, an essential element of
its juridical personality and, consequently,
of its statehood.
The principles of sovereign
equality of states 12 and the inviolability
of their juridical personality 13, lead
to the conclusion that the choice by a
state of its own name is a basic, inherent
right of the state. This right is not
alienable, divisible or transferable,
and is a part of the right to ‘self-determination’
(determination of one’s own legal identity),
i.e. it belongs to the domain of jus cogens
norms. External interference with this
basic right is inadmissible.
It is also obvious that
if such an external interference with
the choice of the name of a state would
be allowed, even through a negotiation
process, it might easily become a legally
endorsed mechanism for interference in
the internal and external affairs of that
state, i.e. a mechanism for degradation
of its political independence. From these
reasons, the choice by the state of its
own name must be considered as an inherent
right of the state that belongs stricto
sensu to the domain of its domestic jurisdiction.
In exercising this right, the states have,
therefore, a complete legal freedom.
This freedom may in practice
be constrained only by considerations
of avoidance the overlap of legal identities
of two (or more) international juridical
persons. (The province ‘Macedonia’ in
Greece, however, is not an international
juridical person.) Based on the principle
of separability of domestic and international
jurisdiction, the name of a state, which
is subject of that state’s domestic jurisdiction,
does not create international legal rights
for that state, nor does it impose legal
obligations on other states. Clearly,
the name per se does not have a direct
impact on the territorial rights of states.
Therefore, the earlier mentioned Greek
allegation that the name of the applicant
implies “territorial claims” has no legal
significance.
The Arbitration Commission
of European Communities on former Yugoslavia
also took this position and did not link
the name of the country (Republic of Macedonia)
to the Greek territorial rights.14 The
same view is shared by prominent scholars
of international law.15 Interference with
matters that are essentially within the
domestic jurisdiction of a state, such
as the choice of state’s name, is also
incompatible with the UN Charter.16 Article
2 (7) of the Charter explicitly extends
the validity of this legal norm to the
United Nations themselves.17 It appears,
therefore, that neither the Greek opposition
to the admission of Macedonia to UN membership
under its constitutional name, nor the
intervention of the UN Security Council
in the matters related to the name of
the country, are consistent with the Charter.
3. Legal Status of a UN
Member under Imposed Admission Conditions
According to the interpretation
of Article 4(1) of the Charter given in
1948 18 and accepted by the General Assembly,
19 the conditions laid down in that article
are exhaustive (and “not merely stated
by way of guidance or example” 20), they
must be fulfilled before admission is
effected, and, once they are recognized
as having been fulfilled by the Security
Council, the applicant state acquires
an unconditional right to UN membership.
This right is enshrined in Article 4 itself
and comports with the universal character
of the UN Organization. At the same time,
and for the same reasons, the Organization
has a duty to unconditionally admit such
a state to UN membership.
The Security Council in
the preamble of its resolution 21 recognizes
that the applicant state fulfils the required
criteria for admission and yet, contrary
to the accepted interpretation of Article
4(1) of the Charter, recommends that the
applicant be admitted to membership with
a temporary reference label (to be used
for all purposes within the UN), and imposes
an obligation on the future UN member
to negotiate with a neighboring state
about its own name. The fact that Security
Council has ignored the strong objection
22 of Macedonian Government to such formulation
of its resolution indicates that it considered
the added conditions as necessary for
giving the recommendation.
A specific feature of the
additional conditions imposed on Macedonia
for its admission to UN membership is
that their effect begins with the act
of admission. Their nature is quite different
than that of the conditions laid down
in Article 4(1) of the Charter: they need
to be fulfilled not before the admission,
but after it. These additional conditions
transcend their cause; their nature is
obviously not legal, but rather political.
According to the ICJ advisory opinion
of 1948 23, no “political considerations”
can be superimposed on, or added to, the
conditions set forth in Article 4(1) that
could prevent admission to membership.
The broad nature of the
prescribed admission criteria already
provides space for appreciation of all
political factors relevant for the judgement
on the fulfillment of these criteria.
With its imposed provisional name (for
use within the UN), i. e. with its derogated
legal personality, and its obligation
to negotiate with a neighboring country
over its name, Macedonia has a legal status
within UN which is obviously different
from that of other member-states. Membership
to the UN Organization, as a legal status,
contains a standard set of rights and
duties that are equal for all members
of the Organization (“sovereign equality
of the Members” 24).
The admission of Macedonia
to UN membership with additional, non-standard
conditions (that impose on the member
certain membership obligations) may be
interpreted as “conditional admission”,
and, consequently, the resulting membership
status as ‘conditional’. The Charter,
however, does not provide for conditional
membership in the Organization. Suppose
that Macedonia decides at one point in
time not to comply anymore with its membership
obligation to negotiate with Greece over
its name. What could be the possible UN
sanctions for such non- compliance?
Expulsion from UN membership
would only prove that its present membership
status is conditional. Other forms of
sanctions would also indicate, in less
evident way, the conditional character
of the membership status. Obstruction
of the “settlement of the difference”
over the name during the negotiating process
may be another form of non-compliance
with the membership obligation. Such obstruction
in the negotiating process may be, however,
introduced also by the other negotiating
party (from political, economic or other
reasons). The fulfillment of the imposed
admission obligation may, therefore, depend
not only on the good will of the party
carrying the obligation, but also on a
factor outside of its control. In fulfilling
its membership obligations, Macedonia
is, thus, not independent, which is another
difference of its membership status with
respect to the other UN member-states.
There is still another important
feature of the legal status of Macedonia
as a UN member. By imposing the additional
condition for admission of using a provisional
name for the state within the UN, the
legal personality of the future member-state
has been heavily derogated by the very
act of admission. The derogated legal
personality of Macedonia in the United
Nations system is most clearly manifested
in the area of representation. In all
acts of representation within the UN system,
and in the field of UN relations with
other international subjects, the provisional,
and not the constitutional, name of Macedonia
is to be used.
This is in violation with
the right of states to non-discrimination
in their representation in the organization
of universal character, expressed in an
unambiguous way in Article 83 of the Vienna
Convention on representation of states.25
The right to equal representation of states
in their relations with the organizations
of universal character (such as the UN
family of organizations) is only a logical
derivative of the principles of sovereign
equality of states within the UN Organization
and inviolability of their juridical personality.
4. Conclusions
The imposed additional conditions
on Macedonia for its admission to UN membership,
in direct violation of several Charter’s
provisions, has created an unusual legal
status of Macedonia in its UN membership.
This status is characterized by a drastically
derogated legal personality of the member
(through an imposed legal identity), enlarged
membership obligations (the fulfillment
of which depend on factors outside of
its control), and unequal rights in the
area of representation compared with other
member-states. Even the very nature of
membership status is not quite clear,
in view of the imposed sine qua non condition
by the act of admission.
It is uncontestable that
the principle of ‘sovereign equality of
the members’ of the Organization is severely
violated in the case Macedonia as UN member.
The absence of any progress in the negotiations
with Greece over the name after nine years
indicates that the problem is fundamental
by its nature. In fact, the dispute over
the name appears to be not between Macedonia
and Greece, but rather, in an implicit
form, between Macedonia and the UN. In
this dispute Macedonia is defending its
right to self-determination of its own
legal identity . Macedonia obviously considers
that right as being sovereign and alienable,
and well grounded in the principles of
law.
Notes
1. GA Res. 47/225, 8 April 1993 [hereafter:
GA Res.47/225 (1993)].
2. SC Res. 817, 7 April
1993 [hereafter: SC Res.817 (1993)].
3. See Supra note 1.
4. See Supra note 2.
5. Ibid.
6. See UN SCOR, 48th Sess.,
Supp. Apr., May, June, at 36, UN Doc.
S/25543 (1993).
7. See UN SCOR, 48th Sess.,
Supp. Apr., May, June, at 35, UN Doc.
S/25541 (1993).
8. See 11 Constitutions
of the Countries of the World, and Supp.
98-6, (A.P.Blaustein and G.H.Flanz, eds.,
1994, 1998)
9. I. Janev, ‘Legal aspects
of the use of provisional name for Macedonia
in the United Nations system’, 93 AJIL
155 (1999).
10. Admission of a State
in the United Nations (Charter, Art. 4),
ICJ Reports, 57 (1948).
11. GA Res. 197 (III,A),
8 December 1948.
12. UN Charter, Art. 2(1).
13. Declaration on Principles
of International Law concerning Friendly
Relations and Co-operation among States
in Accordance with the Charter of the
United Nations, GA Res. 2625 (XXV), 24
October 1970.
14. See 31 ILM 1507, 1511
(1992).
15. L. Henkin, R.C. Pugh,
O. Schachter and H. Smit, “International
Law: Cases and Materials”, p. 253 (3rd
ed., 1993).
16. See Supra note 13.
17. UN Charter, Art. 2(7).
18. See Supra note 10.
19. See Supra note 11.
20. See Supra note 10.
21. See Supra note 2; Preamble.
22. See Supra note 7.
23. See Supra note 10.
24. See Supra note 12.
25. Vienna Convention on
the Representation of States in their
Relations with International Organizations
of a Universal Character, UN Doc. A/CONF.
67/16 (March 14, 1975). [See also 69 AJIL
730 (1975)].
