Monday, December 05, 2011

Commenting the decision of the Hague ICJ on FYROM vs Greece (05.12.2011)

The Application as formulated by the representatives of FYROM “at the hearing of 28 March 2011: “On the basis of the evidence and legal arguments presented in its written and oral pleadings, the Applicant requests the Court:

(i) to reject the Respondent’s objections as to the jurisdiction of the Court and the admissibility of the Applicant’s claims;

(ii) to adjudge and declare that the Respondent, through its State organs and agents, has violated its obligations under Article 11, paragraph 1, of the Interim Accord; and

(iii) to order that the Respondent immediately take all necessary steps to comply with its obligations under Article 11, paragraph 1, of the Interim Accord, and to cease and desist from objecting in any way, whether directly or indirectly, to the Applicant’s membership of the North Atlantic Treaty Organization and/or of any other‘international, multilateral and regional organizations and institutions’ of which the Respondent is a member, in circumstances where the Applicant is to be referred to in such organization or institution by the designation provided for”

As had already been leaked, the court in fact accepts the first two points as demanded by FYROM. However, and this is maybe the most important point, it rejected the third point of the application. Furthermore Greece was condemned for violating the agreement, because of declarations made by its agents before, during and after the NATO summit (par. 73: “the Applicant refers the Court to diplomatic correspondence of the Respondent before and after the Bucharest Summit and to statements by senior officials of the Respondent during the same period.”). This means, taking into account the rejection of the third point and the reasoning behind the acceptance of the first and second points, that the court is in fact saying: “By all means continue to block FYROM’s entry into international organisations; just keep quite about it and you will be fine”. [The court also thus implies that Greece’s then PM Kostas Karamanlis and FM Dora Bakoyannis, acted idiotically, as the decision is based on their public statements: par. 74-79].

The decision, however, contains some very important points, which are not included in the press release of the final decision, but are revealed in the reasoning behind the decision.

Thus in paragraph 71: “The Court also observes that the Respondent did not take the position that any objection by it at the Bucharest Summit was based on grounds unrelated to the difference over the name. Therefore, the Court need not decide whether the Respondent retains a right to object to the Applicant’s admission to international organizations on such other grounds.”, leaves Greece with the option to block FYROM from entering any organisation, for reasons unrelated to the name question. It could, for example, cite lack of Good-neighbourly conduct. [see also par. 81].

Another point concerns the use of the constitutional name of FYROM within international organisations. This is perhaps the most important point of the ruling. In par. 90 it is stated that “the Parties agree that the Applicant intended to refer to itself within NATO, once admitted, by its constitutional name, not by the provisional designation set forth in resolution 817. Thus, the Court must decide whether the second clause of Article 11, paragraph 1, permitted the Respondent to object in that circumstance.” On this point the court finds that in fact [par. 95] “Nowhere, however, does the Interim Accord require the Applicant to use the provisional designation in its dealings with the Respondent. On the contrary, the “Memorandum on ‘Practical Measures’ Related to the Interim Accord”, concluded by the Parties contemporaneously with the entry into force of the Interim Accord, expressly envisages that the Applicant will refer to itself as the “Republic of Macedonia” in its dealings with the Respondent. Thus, as of the entry into force of the Interim Accord, the Respondent did not insist that the Applicant forbear from the use of its constitutional name in all circumstances.” And thus [par. 98] “Taken together, therefore, the text of the second clause of Article 11, paragraph 1, when read in context and in light of the object and purpose of the treaty, cannot be interpreted to permit the Respondent to object to the Applicant’s admission to or membership in an organization because of the prospect that the Applicant would refer to itself in that organization using its constitutional name.”. This, however, throws the Interim Agreement into a completely new perspective: the traditional interpretation that had been given to the I.A. is that it did, in fact, include the obligation of FYROM to use the temporary name not only when applying for membership, but also when referring to itself within international organisations and when others referred to it within these organisations. The court ruling, however, finds that FYROM can refer to itself under its constitutional name, while does not take a position on the name that can or should be used by third parties within international organisations. This ruling might be seen as the death-blow to the Interim Agreement of 1995: as far as Greece was concerned the whole aim of the Interim Agreement was to create a modus vivendi until the two countries reached a final agreement. Thus Greece considered that the temporary appellation was to be used erga omnes (always and by all). Since then FYROM has systematically ignored the Interim Agreement when it came to relations with third parties and bilateral Agreements with third parties. The new ruling now allows FYROM to use its constitutional name within International organisations as well. Thus the scope of the Interim Agreement is limited to (a) what term Greece will call its neighbour by and (b) the term that third parties use to designate FYROM within international organisations and (c) what the country shall be listed as within these organisations. As the court did not pronounce itself on the second point, and given the precedent of bilateral relations outside international organisations, it is likely that even third parties will refer to FYROM with its constitutional name within international organisations. Thus the courts ruling limits the Interim Agreement basically to what Greece will call FYROM! This, however, means that Greece no longer has a real interest to adhere to the Interim Agreement, and makes the calls for it to abandon it that much louder.

Concerning this point the court notes that [par. 99] “the Applicant has continued to refer to itself by its constitutional name in its relations with and dealings within those international organizations and institutions. The Court notes, in particular, the Applicant’s assertion that the Respondent did not object to its admission to any of these 15 organizations. This point went unchallenged by the Respondent. Although there is no evidence that the Respondent ever objected to admission or membership based on the prospect that the Applicant would use its constitutional name in such organizations, the Respondent does identify one instance in which it complained about the Applicant’s use of its constitutional name in the Council of Europe after the Applicant had already joined that organization. The Respondent apparently raised its concerns for the first time only in December 2004, more than nine years after the Applicant’s admission, returning to the subject once again in 2007”. It uses Greece’s silence on the fact that FYROM has been calling itself by its Constitutional name as an argument against Greece’s claim that the Interim Accord does not, in fact allow such a practice. [see also par 100, 101, 113 and 126].

The court uses the same logic (Greece’s silence) as far as Greece’s claims that FYROM did not conduct negotiations in good faith are concerned [par. 133-138] and that FYROM violated art. 6, par. 2 of the Interim Agreement (“The Party of the Second Part hereby solemnly declares that nothing in its Constitution, and in particular in Article 49 as amended, can or should be interpreted as constituting or will ever constitute the basis for the Party of the Second Part to interfere in the internal affairs of another State in order to protect the status and rights of any persons in other States who are not citizens of the Party to the Second Part.”) [par. 140-142] or Art. 7, par 1 of the I.A. (“The Party of the Second Part hereby solemnly declares that nothing in its Constitution, and in particular in Article 49 as amended, can or should be interpreted as constituting or will ever constitute the basis for the Party of the Second Part to interfere in the internal affairs of another State in order to protect the status and rights of any persons in other States who are not citizens of the Party to the Second Part.”), for which the court accepted that various hostile acts cited were acts of private individuals or had been promptly acted upon and that textbooks that “that depict a historic “Greater Macedonia” and that present certain historical figures as the ancestors of the Applicant’s current population” simply “reflect differences concerning the history of the region”. The only case of a violation of the I.A. by FYROM that the court accepts is a case of use of the symbol that had been used on FYROM’s old flag “by a regiment of the Applicant’s army depicted in a publication of the Applicant’s Ministry of Defence in 2004.”. However “the regiment in question was disbanded in 2004 (an assertion left unchallenged by the Respondent), and there is no allegation by the Respondent that the symbol continued to be used in that way after 2004” [par. 149-151].

Concerning the I.A. Article 7, paragraph 3 (“If either Party believes one or more symbols constituting part of its historic or cultural patrimony is being used by the other Party, it shall bring such alleged use to the attention of the other Party, and the other Party shall take appropriate corrective action or indicate why it does not consider it necessary to do so.”) Greece “asserts that the Applicant has violated this provision in a variety of ways, including by issuing stamps, erecting statues and renaming the airport of the capital.”. On this the court finds that “Because Article 7, paragraph 3, does not contain any prohibition on the use of particular symbols, the renaming of an airport could not itself constitute a breach. The threshold question is thus whether the Respondent brought its concern “to the attention” of the Applicant prior to the Bucharest Summit. The Respondent introduced evidence showing that in December 2006, the Respondent’s Foreign Minister described the Applicant’s conduct as “not consistent with the obligations concerning good neighbourly relations that emanate from the Interim Agreement” and as not serving “Skopje’s Euro-Atlantic aspirations”, without, however, referring expressly to the renaming of the airport.” [Par. 154-160.]

In other words, according to the court ruling the renaming of the airport and highway or any of the numerous statues recently set up in the city of Skopje and other towns of FYROM cannot in themselves be considered a breach of Art. 7, par 3 of the I.A. It lies then with Greece, according to the court, to file objections for each case to the government of FYROM, which must then explain its position.

To conclude, it must be noted that as far as the legal aspect is concerned, the court’s decision was exactly what had been expected (and leaked to the media 10 days ago). Although it will be presented on both sides as a victory or a defeat (depending on who is speaking) the decisions follows the pattern that the ICJ is well-know for, i.e. a neutral position where no-one really wins or loses.

However, the specifics of the courts reasoning have far-reaching political consequences and can be seen as a blow to the relations between the two countries.

Firstly the court’s view concerning the use of the constitutional name of the country narrows the scope of the applicability of the Interim Agreement to a very small field. This means that Greece may lose interest of adhering to it or may even find it useful to denounce the I.A. altogether.

On the other hand the fact that the court does not consider any of the actions taken by Gruevski’s nationalist government as violation of the I.A. accord can also be seen as giving dangerous leeway to the extremists in both countries. On the one hand Gruevski will see it as permission to keep provoking Greece with similar practices, while on the more extreme voices in Greece will advocate that a more hard line is needed to deal with FYROM, since the soft politics of the past, where many provocations were left unchallenged so as not to further impede the dialogue between the two countries, has just been shown by the court to have, in fact, weakened Greece’s legal case. At the very least, it is probable that Greece will from now on officially challenge FYROM’s every move on any subject that may concern the two countries even remotely. This practice will probably be extended backwards in time to cover all past moves that have been seen as provocations (renaming the airport, MANU encyclopedia, National team singing irredentist songs, statues of Alexander III and other ancient figures etc). Furthermore the judgment leaves Greece free to block FYROM’s accession to any International organization; this, given the current judgment, Greece will probably do. After all, it is the only measure that Greece possesses to put pressure on FYROM, so it should not be surprising that it continues to do so, especially given the bad faith that the current government of FYROM displays.

So can this judgment be seen as a victory for any of the two sides? Legally, no. The more important claim on the part of FYROM was the demand that “[Greece be ordered] immediately take all necessary steps to comply with its obligations under Article 11, paragraph 1, of the Interim Accord” which the court refused to do.

What it can be seen as is a victory for the hard-liners on both sides: it has seriously weakened the Interim Agreement; it has given Gruevski’s government the scope to continue to provoke Greece with imagined impunity and will certainly be seen in Greece as proof that Greece’s willingness to negotiate weakens its position. They will thus advocate a much harder line, which will almost certainly include blocking FYROM’s entry to the EU and NATO. Let us not forget that the far-right party is currently one of the constituent members of Greece’s unity government.

Thus moderates on both sides have taken a whipping. Dialogue between the two countries has become more difficult, and the one bridge of communication between the two countries that existed, the Interim Agreement of 1995, has become dangerously weak and is close to collapse.

One can only hope that our wise leaders shall refrain from taking any further such measures in the future, but rather invest in the dialogue and negotiations with frankness and good-will. They must understand that in this case there can be no winners and losers, and neither should they seek to achieve such ends either by using legal means or by pressuring the other side into a corner. What both sides must always bear in mind is that the only viable agreement is one where both will concede something, and arrive at a compromise. In any other outcome, the “winner” may have secured itself a name, but it will also have gained a sworn enemy for all eternity.
One would think that for any rational being, the choice is evident.


· Interim Agreement of 1995

· ICJ decision (Press Release)

· ICJ Judgment with reasoning

See also:

*I use the term FYROM in the present text as it is the only mutually acceptable term, agreed upon by the two countries with the Interim Agreement of 1995. Any other term would be seen as an affront to one or the other side.

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