LEGAL ASPECTS OF THE USE OF A PROVISIONAL
NAME FOR MACEDONIA IN THE UNITED NATIONS SYSTEM
The
admission of Macedonia to membership in the United Nations in April 1993
required the new member to 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.”1 The term “difference” here refers to the dispute between Greece
and Macedonia over the use of the applicant state’s name. In its
Resolution 817 of April 7, 1993 (by which the applicant state was recommended
for admission to the United Nations), the Security Council “urge[d] the
parties to continue to cooperate with the Co-Chairmen of the Steering Committee
of the International Conference on the Former Yugoslavia in order to arrive at a
speedy settlement of their difference.”2 Thus, the admission of
Macedonia to the United Nations was subject to its acceptance of being
provisionally referred to as the “Former Yugoslav Republic of Macedonia” (FYROM)
and of negotiating with Greece over its name. I will examine the nature
and legal basis of these requirements with respect to the conditions laid down
in Article 4 of the UN Charter for the admission of states to the Organization.
The
conditions for the admission of states were the subject of exhaustive political
and legal deliberations at the United Nations during the 1940s when many states
were applying for membership.3 During the first several years of the
Organizations’ existence, admission to, and even representation in, the United
Nations were subject to various conditions (outside the scope of those contained
in Article 4 of the Charter), which in some cases required recognition of the
applicant (as an international subject) prior to its admission to membership.4
In an
effort to resolve the dilemmas regarding the legal aspects of the conditions
required for admission to membership and to eliminate the various stalemates
that were occurring in the admission process, the UN General Assembly, by
Resolution 113 (II) of November 17, 1947, requested that the International
Court of Justice give an advisory opinion on the following question:
Is a
Member of the United Nations which is called upon, in virtue of Article 4 of the
Charter, to pronounce itself by its vote, either in the Security Council or in
the General Assembly, on the admission of a State to membership in the United
Nations, juridically entitled to make its consent to the admission dependent on
conditions not expressly provided by paragraph 1 of the said Article? 5
The
following conditions are expressly set forth in Article 4, paragraph 1 of the UN
Charter, which provides: “Membership in the United Nations is open to all
other [i.e., other than the original UN members] peaceloving states which accept
the obligations contained in the present Charter and, in the judgment of
Organization, are able and willing to carry out these obligations.” The
next paragraph of the article states the procedural rule that “[t]he admission
of any such state to membership in the United Nations will be effected by a
decision of the General Assembly upon the recommendation of the Security
Council.”
In its
Advisory Opinion, Admission of a State to the United Nations, the Court first
concluded that the question put to it in an abstract form had a legal nature.
Consequently, the Court was required to provide an interpretation of Article 4,
paragraph 1 of the Charter and, by virtue of Article 96 of the Charter and
Article 65 of its Statute and as “the principal judicial organ of the United
Nations,” it had the competence to give such an interpretation. The
Court then observed that paragraph 1 of Article 4 in effect contains five
conditions; to be admitted to membership in the United Nations, an applicant
must (1) be a state; (2) be peace-loving; (3) accept the obligations of the UN
Charter; (4) be able to carry out these obligations; and (5) be willing to do
so. Further, the Court found that the question put to it by the General
Assembly could be reduced to the following:
are the
conditions stated in paragraph 1 of Article 4 exhaustive in character in the
sense that an affirmative reply would lead to the conclusion that a Member is
not legally entitled to make admission dependent on conditions not expressly
provided for in that Article, while a negative reply would, on the contrary,
authorize a Member to make admission dependent also on other conditions.6
After
thorough consideration, the International Court of Justice formulated its
advisory opinion stating that a member of the United Nations that is called
upon, by virtue of Article 4 of the Charter, to pronounce itself by its vote,
either in the Security Council or in the General Assembly, on the admission of a
state to membership in the Organization, is not juridically entitled to make its
consent dependent on conditions not expressly provided in paragraph 1 of that
article.7
Among
the most important arguments used by the Court in arriving at the above opinion
were that (1) the UN Charter is a multilateral treaty whose provisions impose
obligations on its members; (2) the text of paragraph 1 of Article 4, “by the
enumeration which it contains and the choice of its terms, clearly demonstrates
the intention of its authors to establish a legal rule which, while it fixes the
conditions of admission, determines also the reasons for which admission may be
refused”;8 and (3) the enumeration of the conditions in paragraph 1 of Article
4 is exhaustive (and “not merely stated by way of guidance or example”9),
which follows from the fact that if the opposite were the case, “[i]t would
lead to conferring upon Members an indefinite and practically unlimited power of
discretion in the imposition of new conditions.”10
In its
deliberations, the Court specifically analyzed whether the political character
of the organs responsible for admission (the Security Council and the General
Assembly, by virtue of paragraph 2 of Article 4), or for the maintenance of
world peace (the Security Council, pursuant to Article 24 of the Charter),
engendered arguments leading to the contrary conclusion regarding the exhaustive
character of the conditions enumerated in paragraph 1 of Article 4. The Court
rejected this interpretation and held that “[t]he political character of an
organ cannot release it from the observance of the treaty provisions established
by the Charter when they constitute limitations on its powers or criteria for
its judgment.”11 Thus, the Charter limits the freedom of political organs and
no “political considerations” can be superimposed on, or added to, the
conditions set forth in Article 4 that could prevent admission to membership.
This does not mean, however, that the conditions of Article 4 preclude taking
into account relevant political factors that fall within their scope.
Appreciation of such factors derives from the very broad and elastic nature of
the prescribed conditions and, according to the Court, it does not contradict
the exhaustive character of these conditions.
The advisory opinion of the Court makes it apparent
that, besides their exhaustive and explicit character, the conditions laid down
in Article 4 of the Charter have two additional characteristics: (1) they must
be fulfilled before admission is effected; and (2) once they are recognized as
having been fulfilled, the applicant state acquires an unconditional right to UN
membership. This last feature also follows from the “openness” to membership
enshrined in Article 4, which comports with the universal character of the
Organization.12
The
advisory opinion of the International Court of Justice was presented to the
General Assembly at its third session, in December 1948. At that session the
General Assembly adopted Resolution 197 (III), by which it “[r]ecommend[ed]
that each member of the Security Council and of the General Assembly, in
exercising its vote on the admission of new Members, should act in accordance
with the foregoing opinion of the International Court of Justice.”13
This
resolution and the Court’s advisory opinion have direct legal relevance to the
issue of the admission of Macedonia to membership in the United Nations, since
these documents interpret the Charter in a manner that limits the power of the
UN organs to impose conditions on admission. The preamble to Security
Council Resolution 817, by which Macedonia was recommended for admission,
recognized that “the applicant fulfils the criteria for membership laid down
in Article 4 of the Charter of the United Nations.”14 According to Admission
of a State to the United Nations and General Assembly Resolution 197, this
statement means that the applicant has fulfilled all the required conditions for
admission to membership in the United Nations and that no other conditions may
be imposed. Contrary to the usual wording of Security Council resolutions
recommending admission of a state, Resolution 817, after recognizing the
fulfillment of the conditions in Article 4, contains an additional
consideration, “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.”15 This condition, which is found in the introductory
part of the resolution, is reflected in its paragraph 2, which recommends the
admission of the applicant state to membership in the United Nations. It
describes “this State” as “being 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 Macedonian Government strongly objected to the use of this
provisional name,16 stating that “under no circumstances” was it prepared to
accept that designation as the name for the country. Nevertheless, the text of
the resolution remained unchanged. As a consequence, the imposed
obligation to accept this provisional denomination and the closely related
obligation to negotiate over the name of the country served as additional
conditions that it was required to satisfy so as to gain admission to the United
Nations.
These
unusual conditions in Resolution 817 are extraneous to the limited list laid
down in Article 4. Furthermore, these conditions transcend the act of admission
in time. Since the Charter makes no provision for other conditions for
admission, it appears that the conditions imposed on Macedonia have no legal
basis. Certainly, the ICJ’s advisory opinion makes clear that all the
conditions for admission to membership must be fulfilled before admission is
effected. Since the conditions that were imposed represent purely political
considerations, they are incompatible with the letter and spirit of the UN
Charter.
Also
relevant is the fact that Security Council Resolution 817, after explicitly
recognizing that the applicant state had “fulfil[led] the criteria for
membership laid down in Article 4,” recommended to the General Assembly that
the state be admitted. The act of recommendation necessarily recognized
that the conditions of Article 4 had been fulfilled. The additional
conditions that were attached to the recommendation of Macedonia for membership
in the United Nations therefore created a logical inconsistency because the
Charter contains a closed list of requirements. Once those requirements
are found to have been satisfied, the state has a right to admission.
Additional conditions attached by the Security Council and General Assembly
appear to negate the conclusion that the state is entitled to admission in
accordance with the Charter conditions that were met.
Thus,
the recognition of its fulfillment of the conditions for admission means that
the Security Council affirmed that the applicant country is a peace-loving
state, able and willing to carry out the obligations in the Charter, which
include (among others) the obligation set forth in Article 2, paragraph 4:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.” On this basis, it appears contradictory and incompatible with
the law for the Security Council resolution to report 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.”
This provision implies that the applicant state is unwilling to carry out the
obligation contained in Article 2, paragraph 4. The ICJ’s above-mentioned
advisory opinion and General Assembly Resolution 197 do not permit such
contradictory statements--either the test for admission is met or it is not.
The principles of exhaustiveness, explicitness, prior fulfillment and
recognition, which are embedded in the Court=s interpretation of the conditions
of Article 4 of the Charter, must mean that it would be logically inconsistent
for additional conditions to be attached to the resolutions that recommend or
the decisions that provide for the admission of a state.
It can
be argued that the logic of the Court’s opinion also relates to the provision
in Article 2, paragraph 7, of the Charter, which states: “Nothing contained in
the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present
Charter.”
Thus, in
interpreting this paragraph in connection with the admission of states to
membership in the United Nations, Judge Krylov (who took part in the 1948 ICJ
proceedings) stated that a “Member of the United Nations is not justified in
basing [its] opposition to the admission of a particular State on arguments
which relate to matters falling essentially within the domestic jurisdiction of
the applicant State.”17 This statement reiterates the principle, embedded in
the advisory opinion of the Court and in General Assembly Resolution 197, that,
once the appropriate UN organs determine that the criteria of Article 4 have
been fulfilled, neither a UN organ nor a member of the Organization can
condition the admission of the applicant state on any additional consideration,
particularly if it essentially falls within that state’s domestic
jurisdiction. Certainly, the name a state wishes to adopt is a domestic
matter, having no direct impact on any other state.
Furthermore, on the basis of the principle of separability of domestic and
international jurisdiction, it can be argued that the substantive Greek
allegation that the name of the applicant implies “territorial claims” has
no legal significance. Obviously, the name of a state, which is a subject
of that state’s domestic jurisdiction (since every state naturally has an
inherent right to a name), does not create international legal rights for the
state that adopts the name, 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. Greece advanced practically the same
objections and demands as regards the recognition of Macedonia by the members of
the European Community. Nevertheless, the EC Arbitration Commission on
former Yugoslavia did not link the name of the country (Republic of Macedonia)
to Greek territorial rights.18 Prominent scholars of international law have
expressed similar views. For instance, in their course book on
international law, Professors Henkin, Pugh, Schachter and Smit observe that
there “appears to be no basis in international law or practice” for the
Greek demand that Macedonia change its name, “claiming that the right to use
that name should belong exclusively to Greece.”19 It is apparent that the
Greek demands regarding the name of Macedonia are motivated mainly by concern
that the admission to the United Nations of a state with that name may add
strength in the political arena to possible Macedonian claims to Greek
territory. The name itself has no legal bearing on such a potential
dispute and no relevance to the qualifications that may legally be considered in
connection with the admission of a state to the United Nations.
To
nullify the Greek concerns that the name of the country implies territorial
claims against Greece, Macedonia adopted two amendments to its Constitution on
January 6, 1992. They assert that Macedonia “has no territorial claims
against any neighboring states”; that its borders can be changed only in
accordance with the Constitution and “generally accepted international
norms”; and that, in exercising care for the status and rights of its citizens
and minorities in neighboring countries, it “shall not interfere in the
sovereign rights of other States and their internal affairs.”20 It can further
be noted that after the two countries concluded the Interim Accord of September
13, 1995, under the auspices of the United Nations, their relations entered into
a period of steady and progressive development.
From the
point of view of legal theory, the inherent right of a state to have a name can
be derived from the necessity for a juridical personality to have a legal
identity. In the absence of such an identity, the juridical person (such
as a state) could--to a considerable degree (or even completely)--lose its
capacity to conclude agreements and independently enter into and conduct its
relations with other juridical persons. Therefore, the name of a state
appears to be an essential element of its juridical personality and its
statehood. The principles of the sovereign equality of states21 and the
inviolability of their juridical personality 22 lead to the conclusion that the
choice of a name is an inalienable right of the state. In this context,
external interference with this basic right appears to be inadmissible,
irrespective of territorial and similar arguments. This conclusion is
consistent with the previously cited opinion of Henkin, Pugh, Schachter and Smit
that states have no exclusive rights to names under international law.
Perhaps the international community should develop appropriate legal mechanisms
and rules for hypothetical situations when two or more states wish to adopt the
same name. This is not the case in the Greek-Macedonian dispute, however,
since the name “Macedonia” is used by Greece to designate one of its
provinces (which is not an international legal person).
The
question of a juridical linkage between the conditions for admission to UN
membership and the conditions for recognition of a state was deliberated in the
United Nations at the beginning of the 1950s. A memorandum on legal
aspects of representation in the United Nations23 was prepared by the
Secretariat and communicated to the Security Council. The memorandum
emphasized that the recognition of a state and its admission to UN membership
are governed by different rules. Recognition is essentially a
“political” decision of individual states, whereas admission to membership
is a collective act of the General Assembly based on the right to membership of
any state that meets the prescribed criteria. Therefore, there is no
link--juridical or otherwise --between the conditions for recognition of a state
by another state and the conditions for admission as a member to the United
Nations. On this basis, the memorandum stressed that it is inadmissible to
condition admission on recognition, since admission does not imply recognition
by any government.24 This conclusion is consistent with the previously
discussed advisory opinion of the International Court of Justice and with the
principle of universality of the United Nations.
In
conclusion, once the conditions set forth in Article 4 of the UN Charter have
been fulfilled, the applicant state acquires an inalienable right to UN
membership. On the basis of the Security Council’s assessment that
Macedonia had satisfied the conditions of Article 4 and General Assembly
Resolution 197 regarding observance of the advisory opinion of the International
Court of Justice, it appears that the Macedonian application for membership
should have been handled in accordance with the existing standard admission
procedure and law. The additional conditions related to the name of the
state constitute violations of the Charter.
Notes
1|SC Res. 817, UN SCOR, 48th Sess., Res. &
Dec., at 132, para. 2, UN Doc. S/INF/49 (1993); GA Res. 47/225, UN GAOR, 47th
Sess., Supp. No. 49, Vol. 2, at 6, UN Doc. A/47/49 (1993).
2|SC Res. 817, supra note 1, para. 1.
3|See, e.g., UN SCOR, 1st Sess., 2d series, Supp.
4, at 40, 47, 53 (1946); id., 2d Sess., Spec. Supp. 3, 29, 35-36, 42, 51-53
(1947).
4|See UN SCOR, 2d Sess., 181st mtg. at 1920, 1935
(1947); id., 3d Sess., 330th mtg. at 16 (1948).
5|GA Res. 113 (II), UN GAOR, 2d Sess. Res., at 19
(1947).
6|See Admission of a State to the United Nations
(Charter, Art. 4), Advisory Opinion, 1948 ICJ REP. 57, 61 (May 28).
7|Id. at 65.
8|Id. at 62.
9|Id.
10|1948 ICJ REP. at 63 (in which case paragraph 1
of Article 4 would cease to be a legal norm). It follows that the
conditions laid down in paragraph 1 of Article 4 are not only necessary, but
also sufficient conditions for admission to membership in the United Nations.
11|Id. at 64.
12|This view of the Court was elaborated
specifically and in depth by Judge Alvarez in his concurring individual opinion.
He stated that, having regard to the nature of the universal international
society, the purposes of the United Nations Organization and its mission of
universality, it must be held that all States fulfilling the conditions required
by Article 4 of the Charter have a right to membership in that Organization.
The exercise of this right cannot be blocked by the imposition of other
conditions not expressly provided for by the Charter, by international law or by
a convention, or on grounds of a political nature.
Id. at 71.
13|GA Res. 197 (III), UN GAOR, 3d Sess., Res., pt.
1, at 30 (1948).
14|SC Res. 817, supra note 1, preamble.
15|Id.
16|See UN SCOR, 48th Sess., Supp. for Apr.-June, at
35, UN Doc. S/25541 (1993).
17|Admission of a State to the United Nations
(Charter, Art. 4), Advisory Opinion, 1948 ICJ REP. 57, 113 (May 28) (Krylov, J.,
dissenting).
18|See EC Arbitration Commission on Yugoslavia,
Opinion No. 6, 31 ILM 1507, 1511 (1992).
19|LOUIS HENKIN, RICHARD C. PUGH, OSCAR SCHACHTER
& HANS SMIT, INTERNATIONAL LAW: CASES AND MATERIALS 253 (3d ed. 1993).
20|For an English translation of the Macedonian
Constitution, including amendments, see 11 CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD & Supp. 98-6, at 1 (Albert P. Blaustein & Gisbert H. Flanz eds.,
1994, 1998).
21|UN CHARTER Art. 2, para. 1.
22|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), UN GAOR, 25th Sess.,
Supp. No. 28, at 121, 123, 124, UN Doc. A/8028 (1970).
23|Memorandum on legal aspects of the problem of
representation in the United Nations, UN Doc. S/1466, at 2 (1950).
24|Id. at 3.
LEGAL ASPECTS OF THE USE OF A PROVISIONAL
NAME FOR MACEDONIA IN THE UNITED NATIONS SYSTEM
The
admission of Macedonia to membership in the United Nations in April 1993
required the new member to 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.”1 The term “difference” here refers to the dispute between Greece
and Macedonia over the use of the applicant state’s name. In its
Resolution 817 of April 7, 1993 (by which the applicant state was recommended
for admission to the United Nations), the Security Council “urge[d] the
parties to continue to cooperate with the Co-Chairmen of the Steering Committee
of the International Conference on the Former Yugoslavia in order to arrive at a
speedy settlement of their difference.”2 Thus, the admission of
Macedonia to the United Nations was subject to its acceptance of being
provisionally referred to as the “Former Yugoslav Republic of Macedonia” (FYROM)
and of negotiating with Greece over its name. I will examine the nature
and legal basis of these requirements with respect to the conditions laid down
in Article 4 of the UN Charter for the admission of states to the Organization.
The
conditions for the admission of states were the subject of exhaustive political
and legal deliberations at the United Nations during the 1940s when many states
were applying for membership.3 During the first several years of the
Organizations’ existence, admission to, and even representation in, the United
Nations were subject to various conditions (outside the scope of those contained
in Article 4 of the Charter), which in some cases required recognition of the
applicant (as an international subject) prior to its admission to membership.4
In an
effort to resolve the dilemmas regarding the legal aspects of the conditions
required for admission to membership and to eliminate the various stalemates
that were occurring in the admission process, the UN General Assembly, by
Resolution 113 (II) of November 17, 1947, requested that the International
Court of Justice give an advisory opinion on the following question:
Is a
Member of the United Nations which is called upon, in virtue of Article 4 of the
Charter, to pronounce itself by its vote, either in the Security Council or in
the General Assembly, on the admission of a State to membership in the United
Nations, juridically entitled to make its consent to the admission dependent on
conditions not expressly provided by paragraph 1 of the said Article? 5
The
following conditions are expressly set forth in Article 4, paragraph 1 of the UN
Charter, which provides: “Membership in the United Nations is open to all
other [i.e., other than the original UN members] peaceloving states which accept
the obligations contained in the present Charter and, in the judgment of
Organization, are able and willing to carry out these obligations.” The
next paragraph of the article states the procedural rule that “[t]he admission
of any such state to membership in the United Nations will be effected by a
decision of the General Assembly upon the recommendation of the Security
Council.”
In its
Advisory Opinion, Admission of a State to the United Nations, the Court first
concluded that the question put to it in an abstract form had a legal nature.
Consequently, the Court was required to provide an interpretation of Article 4,
paragraph 1 of the Charter and, by virtue of Article 96 of the Charter and
Article 65 of its Statute and as “the principal judicial organ of the United
Nations,” it had the competence to give such an interpretation. The
Court then observed that paragraph 1 of Article 4 in effect contains five
conditions; to be admitted to membership in the United Nations, an applicant
must (1) be a state; (2) be peace-loving; (3) accept the obligations of the UN
Charter; (4) be able to carry out these obligations; and (5) be willing to do
so. Further, the Court found that the question put to it by the General
Assembly could be reduced to the following:
are the
conditions stated in paragraph 1 of Article 4 exhaustive in character in the
sense that an affirmative reply would lead to the conclusion that a Member is
not legally entitled to make admission dependent on conditions not expressly
provided for in that Article, while a negative reply would, on the contrary,
authorize a Member to make admission dependent also on other conditions.6
After
thorough consideration, the International Court of Justice formulated its
advisory opinion stating that a member of the United Nations that is called
upon, by virtue of Article 4 of the Charter, to pronounce itself by its vote,
either in the Security Council or in the General Assembly, on the admission of a
state to membership in the Organization, is not juridically entitled to make its
consent dependent on conditions not expressly provided in paragraph 1 of that
article.7
Among
the most important arguments used by the Court in arriving at the above opinion
were that (1) the UN Charter is a multilateral treaty whose provisions impose
obligations on its members; (2) the text of paragraph 1 of Article 4, “by the
enumeration which it contains and the choice of its terms, clearly demonstrates
the intention of its authors to establish a legal rule which, while it fixes the
conditions of admission, determines also the reasons for which admission may be
refused”;8 and (3) the enumeration of the conditions in paragraph 1 of Article
4 is exhaustive (and “not merely stated by way of guidance or example”9),
which follows from the fact that if the opposite were the case, “[i]t would
lead to conferring upon Members an indefinite and practically unlimited power of
discretion in the imposition of new conditions.”10
In its
deliberations, the Court specifically analyzed whether the political character
of the organs responsible for admission (the Security Council and the General
Assembly, by virtue of paragraph 2 of Article 4), or for the maintenance of
world peace (the Security Council, pursuant to Article 24 of the Charter),
engendered arguments leading to the contrary conclusion regarding the exhaustive
character of the conditions enumerated in paragraph 1 of Article 4. The Court
rejected this interpretation and held that “[t]he political character of an
organ cannot release it from the observance of the treaty provisions established
by the Charter when they constitute limitations on its powers or criteria for
its judgment.”11 Thus, the Charter limits the freedom of political organs and
no “political considerations” can be superimposed on, or added to, the
conditions set forth in Article 4 that could prevent admission to membership.
This does not mean, however, that the conditions of Article 4 preclude taking
into account relevant political factors that fall within their scope.
Appreciation of such factors derives from the very broad and elastic nature of
the prescribed conditions and, according to the Court, it does not contradict
the exhaustive character of these conditions.
The advisory opinion of the Court makes it apparent
that, besides their exhaustive and explicit character, the conditions laid down
in Article 4 of the Charter have two additional characteristics: (1) they must
be fulfilled before admission is effected; and (2) once they are recognized as
having been fulfilled, the applicant state acquires an unconditional right to UN
membership. This last feature also follows from the “openness” to membership
enshrined in Article 4, which comports with the universal character of the
Organization.12
The
advisory opinion of the International Court of Justice was presented to the
General Assembly at its third session, in December 1948. At that session the
General Assembly adopted Resolution 197 (III), by which it “[r]ecommend[ed]
that each member of the Security Council and of the General Assembly, in
exercising its vote on the admission of new Members, should act in accordance
with the foregoing opinion of the International Court of Justice.”13
This
resolution and the Court’s advisory opinion have direct legal relevance to the
issue of the admission of Macedonia to membership in the United Nations, since
these documents interpret the Charter in a manner that limits the power of the
UN organs to impose conditions on admission. The preamble to Security
Council Resolution 817, by which Macedonia was recommended for admission,
recognized that “the applicant fulfils the criteria for membership laid down
in Article 4 of the Charter of the United Nations.”14 According to Admission
of a State to the United Nations and General Assembly Resolution 197, this
statement means that the applicant has fulfilled all the required conditions for
admission to membership in the United Nations and that no other conditions may
be imposed. Contrary to the usual wording of Security Council resolutions
recommending admission of a state, Resolution 817, after recognizing the
fulfillment of the conditions in Article 4, contains an additional
consideration, “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.”15 This condition, which is found in the introductory
part of the resolution, is reflected in its paragraph 2, which recommends the
admission of the applicant state to membership in the United Nations. It
describes “this State” as “being 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 Macedonian Government strongly objected to the use of this
provisional name,16 stating that “under no circumstances” was it prepared to
accept that designation as the name for the country. Nevertheless, the text of
the resolution remained unchanged. As a consequence, the imposed
obligation to accept this provisional denomination and the closely related
obligation to negotiate over the name of the country served as additional
conditions that it was required to satisfy so as to gain admission to the United
Nations.
These
unusual conditions in Resolution 817 are extraneous to the limited list laid
down in Article 4. Furthermore, these conditions transcend the act of admission
in time. Since the Charter makes no provision for other conditions for
admission, it appears that the conditions imposed on Macedonia have no legal
basis. Certainly, the ICJ’s advisory opinion makes clear that all the
conditions for admission to membership must be fulfilled before admission is
effected. Since the conditions that were imposed represent purely political
considerations, they are incompatible with the letter and spirit of the UN
Charter.
Also
relevant is the fact that Security Council Resolution 817, after explicitly
recognizing that the applicant state had “fulfil[led] the criteria for
membership laid down in Article 4,” recommended to the General Assembly that
the state be admitted. The act of recommendation necessarily recognized
that the conditions of Article 4 had been fulfilled. The additional
conditions that were attached to the recommendation of Macedonia for membership
in the United Nations therefore created a logical inconsistency because the
Charter contains a closed list of requirements. Once those requirements
are found to have been satisfied, the state has a right to admission.
Additional conditions attached by the Security Council and General Assembly
appear to negate the conclusion that the state is entitled to admission in
accordance with the Charter conditions that were met.
Thus,
the recognition of its fulfillment of the conditions for admission means that
the Security Council affirmed that the applicant country is a peace-loving
state, able and willing to carry out the obligations in the Charter, which
include (among others) the obligation set forth in Article 2, paragraph 4:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.” On this basis, it appears contradictory and incompatible with
the law for the Security Council resolution to report 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.”
This provision implies that the applicant state is unwilling to carry out the
obligation contained in Article 2, paragraph 4. The ICJ’s above-mentioned
advisory opinion and General Assembly Resolution 197 do not permit such
contradictory statements--either the test for admission is met or it is not.
The principles of exhaustiveness, explicitness, prior fulfillment and
recognition, which are embedded in the Court=s interpretation of the conditions
of Article 4 of the Charter, must mean that it would be logically inconsistent
for additional conditions to be attached to the resolutions that recommend or
the decisions that provide for the admission of a state.
It can
be argued that the logic of the Court’s opinion also relates to the provision
in Article 2, paragraph 7, of the Charter, which states: “Nothing contained in
the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present
Charter.”
Thus, in
interpreting this paragraph in connection with the admission of states to
membership in the United Nations, Judge Krylov (who took part in the 1948 ICJ
proceedings) stated that a “Member of the United Nations is not justified in
basing [its] opposition to the admission of a particular State on arguments
which relate to matters falling essentially within the domestic jurisdiction of
the applicant State.”17 This statement reiterates the principle, embedded in
the advisory opinion of the Court and in General Assembly Resolution 197, that,
once the appropriate UN organs determine that the criteria of Article 4 have
been fulfilled, neither a UN organ nor a member of the Organization can
condition the admission of the applicant state on any additional consideration,
particularly if it essentially falls within that state’s domestic
jurisdiction. Certainly, the name a state wishes to adopt is a domestic
matter, having no direct impact on any other state.
Furthermore, on the basis of the principle of separability of domestic and
international jurisdiction, it can be argued that the substantive Greek
allegation that the name of the applicant implies “territorial claims” has
no legal significance. Obviously, the name of a state, which is a subject
of that state’s domestic jurisdiction (since every state naturally has an
inherent right to a name), does not create international legal rights for the
state that adopts the name, 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. Greece advanced practically the same
objections and demands as regards the recognition of Macedonia by the members of
the European Community. Nevertheless, the EC Arbitration Commission on
former Yugoslavia did not link the name of the country (Republic of Macedonia)
to Greek territorial rights.18 Prominent scholars of international law have
expressed similar views. For instance, in their course book on
international law, Professors Henkin, Pugh, Schachter and Smit observe that
there “appears to be no basis in international law or practice” for the
Greek demand that Macedonia change its name, “claiming that the right to use
that name should belong exclusively to Greece.”19 It is apparent that the
Greek demands regarding the name of Macedonia are motivated mainly by concern
that the admission to the United Nations of a state with that name may add
strength in the political arena to possible Macedonian claims to Greek
territory. The name itself has no legal bearing on such a potential
dispute and no relevance to the qualifications that may legally be considered in
connection with the admission of a state to the United Nations.
To
nullify the Greek concerns that the name of the country implies territorial
claims against Greece, Macedonia adopted two amendments to its Constitution on
January 6, 1992. They assert that Macedonia “has no territorial claims
against any neighboring states”; that its borders can be changed only in
accordance with the Constitution and “generally accepted international
norms”; and that, in exercising care for the status and rights of its citizens
and minorities in neighboring countries, it “shall not interfere in the
sovereign rights of other States and their internal affairs.”20 It can further
be noted that after the two countries concluded the Interim Accord of September
13, 1995, under the auspices of the United Nations, their relations entered into
a period of steady and progressive development.
From the
point of view of legal theory, the inherent right of a state to have a name can
be derived from the necessity for a juridical personality to have a legal
identity. In the absence of such an identity, the juridical person (such
as a state) could--to a considerable degree (or even completely)--lose its
capacity to conclude agreements and independently enter into and conduct its
relations with other juridical persons. Therefore, the name of a state
appears to be an essential element of its juridical personality and its
statehood. The principles of the sovereign equality of states21 and the
inviolability of their juridical personality 22 lead to the conclusion that the
choice of a name is an inalienable right of the state. In this context,
external interference with this basic right appears to be inadmissible,
irrespective of territorial and similar arguments. This conclusion is
consistent with the previously cited opinion of Henkin, Pugh, Schachter and Smit
that states have no exclusive rights to names under international law.
Perhaps the international community should develop appropriate legal mechanisms
and rules for hypothetical situations when two or more states wish to adopt the
same name. This is not the case in the Greek-Macedonian dispute, however,
since the name “Macedonia” is used by Greece to designate one of its
provinces (which is not an international legal person).
The
question of a juridical linkage between the conditions for admission to UN
membership and the conditions for recognition of a state was deliberated in the
United Nations at the beginning of the 1950s. A memorandum on legal
aspects of representation in the United Nations23 was prepared by the
Secretariat and communicated to the Security Council. The memorandum
emphasized that the recognition of a state and its admission to UN membership
are governed by different rules. Recognition is essentially a
“political” decision of individual states, whereas admission to membership
is a collective act of the General Assembly based on the right to membership of
any state that meets the prescribed criteria. Therefore, there is no
link--juridical or otherwise --between the conditions for recognition of a state
by another state and the conditions for admission as a member to the United
Nations. On this basis, the memorandum stressed that it is inadmissible to
condition admission on recognition, since admission does not imply recognition
by any government.24 This conclusion is consistent with the previously
discussed advisory opinion of the International Court of Justice and with the
principle of universality of the United Nations.
In
conclusion, once the conditions set forth in Article 4 of the UN Charter have
been fulfilled, the applicant state acquires an inalienable right to UN
membership. On the basis of the Security Council’s assessment that
Macedonia had satisfied the conditions of Article 4 and General Assembly
Resolution 197 regarding observance of the advisory opinion of the International
Court of Justice, it appears that the Macedonian application for membership
should have been handled in accordance with the existing standard admission
procedure and law. The additional conditions related to the name of the
state constitute violations of the Charter.
Notes
1|SC Res. 817, UN SCOR, 48th Sess., Res. &
Dec., at 132, para. 2, UN Doc. S/INF/49 (1993); GA Res. 47/225, UN GAOR, 47th
Sess., Supp. No. 49, Vol. 2, at 6, UN Doc. A/47/49 (1993).
2|SC Res. 817, supra note 1, para. 1.
3|See, e.g., UN SCOR, 1st Sess., 2d series, Supp.
4, at 40, 47, 53 (1946); id., 2d Sess., Spec. Supp. 3, 29, 35-36, 42, 51-53
(1947).
4|See UN SCOR, 2d Sess., 181st mtg. at 1920, 1935
(1947); id., 3d Sess., 330th mtg. at 16 (1948).
5|GA Res. 113 (II), UN GAOR, 2d Sess. Res., at 19
(1947).
6|See Admission of a State to the United Nations
(Charter, Art. 4), Advisory Opinion, 1948 ICJ REP. 57, 61 (May 28).
7|Id. at 65.
8|Id. at 62.
9|Id.
10|1948 ICJ REP. at 63 (in which case paragraph 1
of Article 4 would cease to be a legal norm). It follows that the
conditions laid down in paragraph 1 of Article 4 are not only necessary, but
also sufficient conditions for admission to membership in the United Nations.
11|Id. at 64.
12|This view of the Court was elaborated
specifically and in depth by Judge Alvarez in his concurring individual opinion.
He stated that, having regard to the nature of the universal international
society, the purposes of the United Nations Organization and its mission of
universality, it must be held that all States fulfilling the conditions required
by Article 4 of the Charter have a right to membership in that Organization.
The exercise of this right cannot be blocked by the imposition of other
conditions not expressly provided for by the Charter, by international law or by
a convention, or on grounds of a political nature.
Id. at 71.
13|GA Res. 197 (III), UN GAOR, 3d Sess., Res., pt.
1, at 30 (1948).
14|SC Res. 817, supra note 1, preamble.
15|Id.
16|See UN SCOR, 48th Sess., Supp. for Apr.-June, at
35, UN Doc. S/25541 (1993).
17|Admission of a State to the United Nations
(Charter, Art. 4), Advisory Opinion, 1948 ICJ REP. 57, 113 (May 28) (Krylov, J.,
dissenting).
18|See EC Arbitration Commission on Yugoslavia,
Opinion No. 6, 31 ILM 1507, 1511 (1992).
19|LOUIS HENKIN, RICHARD C. PUGH, OSCAR SCHACHTER
& HANS SMIT, INTERNATIONAL LAW: CASES AND MATERIALS 253 (3d ed. 1993).
20|For an English translation of the Macedonian
Constitution, including amendments, see 11 CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD & Supp. 98-6, at 1 (Albert P. Blaustein & Gisbert H. Flanz eds.,
1994, 1998).
21|UN CHARTER Art. 2, para. 1.
22|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), UN GAOR, 25th Sess.,
Supp. No. 28, at 121, 123, 124, UN Doc. A/8028 (1970).
23|Memorandum on legal aspects of the problem of
representation in the United Nations, UN Doc. S/1466, at 2 (1950).
24|Id. at 3.