Macedonia: erga omnes – dominus?

The Macedonian side should seek clarification and dismissal of the Greek insistence upon erga omnes – ‘towards all’ – since it is invoked without being related to the context and content of the name issue, and is not grounded in any existing framework.

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By Jana Lozanoska

The name issue between Greece and Macedonia remains one of the most unprecedented disputes in international fora, raising important questions concerning who has title over what, who is the ‘Master’ of what and, additionally, who defines the rules of the game.

The name issue arose when Macedonia declared independence in 1991. With the dissolution of Yugoslavia, there was only a change – albeit cumbersome – of the political and economic system. In the process of replacing one system with another, the name of the state went from the Socialist Republic of Macedonia to the Republic of Macedonia. What was omitted was only the signifier of the previous system.

This, however, was matter of concern for Greece; prompting its longstanding campaign to oppose, initially, the Republic of Macedonia’s collective recognition within the framework of the then European Communities and, subsequently, admission to the UN and, most recently, NATO accession. With bloodshed in Bosnia-Herzegovina overlapping with arguments on territorial pretensions advanced by Greece, the UN Security Council adopted resolution 817. Much scholarly analysis has demonstrated that the name issue as such – and, in particular, with respect to the Republic Macedonia – cannot in any case represent a ground for territorial pretensions as claimed by Greece. Additionally, this was confirmed by Opinion 6 of the Badinter Commission in relation to Macedonia’s request for independence.

The Interim Accord concluded in 1995 under economic pressure (i.e. embargo) is a bilateral framework which regulates relations between the two states. The main substantive obligation undertaken by Greece was not to block the Republic of Macedonia’s accession in international and regional organizations if done pursuant to Security Council Resolution 817. The outcome of the 2008 Bucharest Summit is well known; as is that of the proceedings initiated in front of the International Court of Justice (ICJ), which concluded that Greece infringed the said Interim Accord by virtue of blocking Macedonia’s bid to join NATO.

All this opposition is because Greece considers that it has title over Macedonia’s denomination. The arguments on territorial pretensions – both in terms of international law and relations – are inapplicable and, as such, the only question which remains is that of ownership. The requirements deriving from negotiations, and as well the writings of many Greek scholars, confirms such a stance; namely, that Greece approaches the name issue from the position of ownership.

Initially one should pose the question – what is to be owned? Can Greece own the name of the Republic of Macedonia? On what grounds can Greece claim title over the other state’s denomination of its contemporary political, economic, cultural system, distinct from its own and separated physically by borders? In this case there is nothing tangible that can be claimed, such as in cases with territorial or border delimitation disputes (for example, Croatia versus Slovenia). Further, on which basis can the renaming of the state and therefore the overall application of this eventually compounded name – i.e. erga omnes – be required?

In terms of the ongoing negotiations, which have lasted for almost twenty years, two issues are pertinent. First, the composition of the name as such, with proposals – mostly upon Greece’s insistence – including the terms Northern Macedonia, Republic of Northern Macedonia and many others ‘creative’ solutions. Second, the extent of the usage of the negotiated name.

The second element claimed by Greece in the negotiations is that the name should be used erga omnes. The Latin expression erga omnes means ‘towards all’, and is a legal principle used mostly in property rights and in general international law. The latter usage has been extensively discussed in the Barcelona Traction Case before the ICJ, where a differentiation was made between the international erga omnes obligations of states to the international community as a whole – which are intended to protect the basic values and common interests of all – and those arising via-a-vis another state (in the field of diplomatic protection, since the case dealt with the subject). The former concerns all states and all states can be held to have legal interest in their protection. Examples of these obligations refer mostly to outlawing aggression and genocide, protection from slavery, racial discrimination and torture.

However, its scope and nature is unclear in the context of the name issue and the ongoing negotiations. First, does Greece invoke erga omnes as a general legal principle or as a postulate that can be found in international law as such, since there is a difference in scope between the two, although a common ground exists. This is indeed a very ambiguous requirement which triggers implications not only for the Republic of Macedonia, but for the international community and the states comprising it. Are we talking about rights or obligations? For whom and for what? Which is the content of these rights and obligations? Which is the ground from which these rights and obligations derive? And many other unanswered questions.

During the negotiations, the Greek side has demanded the erga omnes requirement; namely, a denomination which should be employed both in international and regional organizations, and bilaterally with the states. In addition, some proposals by the UN mediator, Matthew Nimitz, dealt with internal usage of the eventually negotiated name. In a situation when the Republic of Macedonia has been so far recognized by 133 states out 192 – comprising the whole international community – such a requirement is completely absurd and unsubstantiated. This is confirmed as well by the ICJ in its judgement rendered in December, 2011. Additionally, dismissal of the argument erga omnes can be claimed since it is quite unclear from where it derives and to what it applies. Could one negotiate on terms which are not defined and quite ambiguous? Of, course not.

Therefore, the Macedonian side should seek a clarification and dismissal of this requirement, since it is invoked without being related to the context and content of the name issue and, thus far, not grounded in any existing framework.

Jana Lozanoska, LL.M, is a freelance consultant and former Director of the Center for Democracy and Security in Euro-Balkan Institute.

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