Political Review 05/02

On the Legal Status of Macedonia in the United Nations: A Case for Juridical Redress

Igor  Janev*

Contents:

On the Legal Status of Macedonia in the United Nations: A Case for Juridical Redress. 1

Introduction. 1

Admission of Macedonia to UN Membership: The Political Context 2

Legal Freedom in the Choice of Legal Identity of a State. 4

Legal Status of a UN Member with Imposed Admission Conditions. 5

Redress of Macedonian Legal UN Membership Status by Juridical Means. 7

Conclusions. 9

Abstract

            These analyses explore the legality of a specific status of Macedonia in the UN as a result of imposing additional conditions (with respect to those prescribed in the Charter) in SC Res. 817 (1993) and GA Res. 47/225 (1993) relating to its admission to UN membership. These conditions include acceptance by the applicant of a provisional name and an obligation to negotiate with another country (Greece) over its name. It is shown that the imposition of these conditions violates Article 4(1) and some other articles of the Charter. The consequences of the imposed conditions on the legal status of Macedonia as a UN member are also examined.  The imposed conditions define a discriminatory status of the member state in violation of Article 2(1) of the Charter.  It is shown that these violations of Charter provisions represent ultra vires acts of the UN Organization and involve its legal personality. These breaches of the Charter provisions also violate some of the basic rights of the applicant (and later member) state and gravely derogate its legal personality. The advisory jurisdiction of the International Court of Justice is considered to provide appropriate mechanisms for the judicial redress of the effects of the above illegal acts of the UN Organization. It is shown, furthermore, that only the advisory jurisdiction of the International Court of Justice can be a way out in the Macedonian case.

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, the applicant state had to accept (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) resolutions. This requirement is more explicitly expressed 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-neighborly relations in the region”.[5] This observation of 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 such formulation of SC Res. 817 (1993), and the adoption by 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 only in accordance with the Constitution and “generally accepted international norms”), the text of the resolution SC Res. 817 (1993) remained unchanged. It should be noted that there is a logical inconsistency in SC Res.817 (1993): by affirming that the applicant fulfills the admission criteria laid down in Article 4 of the Charter, the Security Council recognizes that the applicant is a peace-loving state that accepts the obligations of the Charter and is able and willing to carry out these obligations.[9] The stated reasons for introducing the mentioned conditions on the future UN member are inconsistent with this assessment.

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[10] on the basis of advisory opinion of International Court of Justice (ICJ) of 1948[11] (related to the admission of states to UN membership) and adopted by the General Assembly.[12] The conclusion of that analysis, derived directly from the noted 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 ten 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. In this stalemate situation it appears logical to explore alternative approaches to the problem of “settlement of the difference” around the name of Macedonia in UN. In the present commentary we shall suggest such an approach based on the advisory jurisdiction of International Court of Justice.

Admission of Macedonia to UN Membership: The Political Context

In order to understand better the factors that have influenced the introduction of additional conditions to Macedonian admission to UN membership, it is useful to recall the political circumstances in which the admission process was taking place. After the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY) in 1992, the question of recognition of newborn Balkan states by other states has arisen. The member-states of European Community (EC) have taken the position of joint (collective) recognition of post-SFRY states and established a set of criteria (“guidelines”) for such recognition.[13]  EC has also established an Arbitration Commission on former Yugoslavia to determine the fulfillment of these criteria by each of the countries seeking recognition, and advise such recognition. Greece, a member of EC, has advanced the allegation that the name “Republic of Macedonia”, already enshrined in the Constitution, implies “territorial claims” against Greece. This was reflected in the closing paragraph of the Declaration on Yugoslavia[14] as request that each of the former Yugoslav republics applying for EC recognition should commit itself “to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State, including a denomination which implies territorial claims”.[15]  As noted by many scholars,[16] such a request in the “guidelines” for recognition drastically departs from the traditional criteria for state recognition (once a country satisfies the conditions for statehood), and is hand-tailored to meet the specific interest of an EC member. In order to satisfy this criterion, Macedonian Parliament has introduced two amendments in the Constitution affirming that the country does not have any territorial claims with respect to any of its neighbors, and that any potential change of its borders will be done in accordance with the Constitution and generally accepted international norms.[17] The EC Arbitration Commission, examining whether Macedonia fulfils the prescribed EC recognition criteria, has come to an affirmative conclusion.[18] Moreover, the Arbitration Commission in its Opinion stated that “the use of name ‘Macedonia’ cannot imply any territorial claims against another State”.[19] Despite of this legal qualification, the EC has declined the recognition of Macedonia, as result of the consensual decision making process. The extent to which the veto power in EC political decision making process has affected the position of EC on the question of its recognition of Macedonia under its constitutional name can be appreciated from its Lisbon Declaration of 27 June, 1992, in which it declares its willingness to recognize the state as a sovereign and independent within its existing borders but “under the name which does not include the term Macedonia”.[20] In the meantime, Macedonia has been recognized by several European non-EC countries, including Russia.

In parallel to this process, Macedonia has submitted its application for membership to United Nations, and Greece again advanced its opposition to the admission of Macedonia to UN under its constitutional name by using the same allegation.[21] It was apparent that, as in the case of Macedonian recognition by EC, the Greek opposition was motivated by the concerns that the admission of Macedonia to UN under its constitutional name would trigger its recognition under that name by the majority of UN member states and would, thus, add to its strength in the political arena (with possible Macedonian claims to the Greek territory). It is quite possible that such, or similar interpretation of Greek opposition was adopted by the Security Council as well. However, the name itself does not have any legal bearing on such a hypothetical dispute, and, therefore, has no relevance to the qualifications that may be legally considered in connection with the admission of a state to UN membership. Nevertheless, this interpretation of Greek demands regarding the name of Macedonia has led to an implicit linkage of the conditions for Macedonian admission to UN with those for its recognition as a state. This assertion is reinforced by the fact that Greece has used the same arguments when opposing the admission of Macedonia to UN under its constitutional name, and when opposing its recognition by the EC.

            The question of juridical connection of the conditions for admission to UN and the conditions for recognition of a state was deliberated in the United Nations at the beginning of 1950’s. On request by the Security Council, the UN Secretariat prepared a “Memorandum on legal aspects of representation in the United Nations”[22] in which it was emphasized that the admission to UN membership and the recognition of a state 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 fulfills the prescribed criteria. Therefore, there is no juridical (or any other) linkage between the conditions for recognition of a state by another state, and the conditions for admission to UN membership. On this basis, the Memorandum also emphasized that it is inadmissible to condition the admission on recognition, since admission does not imply recognition by any government.[23]

Despite the juridical disjunction of the conditions for state recognition and state admission to UN membership, the effect of imposed provisional name on Macedonia by the UN resolution GA Res.47/225 (1993) (for use within the UN system) was such that most of the states have recognized Macedonia under that provisional name. The interpretation of this fact is somewhat unclear: is it an expression of certain automatism, or is it based on consistency reasons, or on a belief that the “difference” between Greece and Macedonia over the name of the latter can be “threat to the peace and stability in the region”?

Legal Freedom in the Choice of Legal Identity of a State

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.

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[24] and the inviolability of their juridical personality[25], 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. (In this context it should be noted that the province ‘Macedonia’ in northern Greece does not represent 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.  As mentioned in Section II, the EC Arbitration Commission also took this position and did not link the name of the country (Republic of Macedonia) to the Greek territorial rights.[26] The same view is shared by prominent scholars of international law (asserting that “no country can have an exclusive right over a name”).[27]

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.[28] Article 2 (7) of the Charter explicitly extends the validity of this legal norm to the United Nations themselves.[29] 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[30].

There is, however, an apparent ambivalence in the legal position of UN with respect to the choice of name of a state. The UN act as mediator in the negotiations of Macedonia and Greece over the name. During the ten years of negotiations, besides the obvious lack of success in the negotiation process, the UN have not exerted any stronger pressure on the parties for resolving more efficiently their “difference”, nor have they tried to impose their own solution to the problem. This can be interpreted a tacit admission by the UN that the question of determination of the name of a state is outside of the scope of their legal authority. Indeed, the name of a state (as an attribute of its legal personality) cannot be related only to the membership of that state to UN. The legal personality of a state is defined (and manifest itself) within a much broader frame of international relations, the relation to UN being only one of many. Entering into UN membership should not affect the legal identity of a state, since it is established (before and) by factors outside the relation with UN. In its mediating role in the negotiation process over the name of Macedonia, the UN apparently observes the principle of non-interference in matters that are in the domain of state’s internal jurisdiction, but, as mentioned , that was not the case during the admission procedure.

Legal Status of a UN Member with Imposed Admission Conditions

            According to the interpretation of Article 4(1) of the Charter given by the International Court of Justice in 1948[31] and accepted by the General Assembly,[32] the conditions laid down in that article are exhaustive (and “not merely stated by way of guidance or example”[33]), 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[34] 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[35] 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[36], 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 judgment 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”[37]). 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 imposition of a provisional name on Macedonia (for use within the UN system) means that Macedonia was denied the basic (natural) right to free choice of its name (in internal and even external relations); moreover, legal identity of this applicant state was suspended by the act of admission, and replaced by a reference label (denomination). The admission act and resulting membership status are certainly not consistent with the principle of “sovereign equality of Members” enshrined in the Charter. The derogated legal personality of Macedonia in the United Nations system is perhaps 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.[38] 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 derivative of the principles of sovereign equality of states within the UN Organization and inviolability of their juridical personality.

In concluding this section we can summarize that the imposed additional conditions on Macedonia for its admission to UN membership, in direct violation of several Charter’s provisions, have 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 ten years indicates that the problem is fundamental in 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 (which is obviously taken as synonym, or an essential part, of its national identity). Macedonia obviously considers that right as being sovereign and inalienable, and well grounded in the principles of existing international law.

Redress of Macedonian Legal UN Membership Status by Juridical Means

            It is obvious that above described legal status of Macedonia in the United Nations cannot be continued indefinitely. For Macedonia, it is a matter of its dignity, derogated legal personality, and discriminatory membership position. For the United Nations, it is an open question on its agenda: a question that was supposed to be resolved relatively quickly still persists after ten years of negotiations, with no visible prospects for its solution.  It is becoming evident that the adopted method for settlement of the difference over the name of Macedonia in the United Nation between Macedonia and Greece by negotiations, with the mediation of UN, is not producing desired results and new methods for solving this problem have to be sought. The appropriateness of the method for solving a problem depends, of course, on the character of the problem. In the UN resolutions SC Res.817 (1993) and GA Res.47/225 (1993), the Greek opposition to the admission of Macedonia to United Nations membership under its constitutional name was taken as sufficient to interpret the “difference” over the name in political terms (as it has been, in fact, presented by Greece), and, accordingly, to suggest a “political” method (negotiations) for its settlement. However, the positions of parties involved in the dispute are so fundamentally different, that no “political” solution of the dispute can be expected. The political negotiations in the present case represent a typical example of a “zero-sum” game with no solution acceptable for both parties.

The whole problem of the legal status of Macedonia in the UN is generated by the imposed additional conditions (to accept the provisional denomination FYROM – for use within the UN, and to negotiate with Greece over its name) on the admission of Macedonia to UN membership in the resolutions SC Res.817(1993) and GA Res. 47/225 (1993). If one examines the legality of these resolutions in the light of the provisions of UN Charter, other UN legal documents, and in particular in the light of the interpretation of Article 4 of the Charter by the International Court of Justice[39] and GA Res.197(III,A) (1948)[40], adopting this interpretation, one  arrives at the conclusion that the imposition of additional conditions on the admission of Macedonia to UN membership is an ultra vires act of the UN Organization. Indeed, according to the Court’s opinion, adopted by the General Assembly in 1948, the admission criteria laid down in Article 4 of the Charter have an exhaustive character: their fulfillment is necessary and sufficient for admission of a state to UN membership. In the opposite case, “it would lead to conferring upon the Members an indefinite and practically unlimited power of discretion in the imposition of new conditions”.[41] The Court specifically analyzed the question whether the political organs responsible for the admission have the power of superimposing “political considerations” to the conditions laid down in Article 4(1), and concluded that “the 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”[42].  Therefore, in Court’s opinion, Article 4(1) of the Charter is a legal norm that fixes the criteria for admission (and also the reasons for which the admission may be refused) in an exhaustive manner. By virtue of the “openness” of the UN Organization to membership (enshrined in Article 4 (1) as well) and universal character of the Organization, once it is recognized that the criteria set forth in Article 4(1) have been fulfilled by a state, that state acquires an unconditional right to UN membership, and the Organization a duty to admit such a state. As mentioned earlier, the preambles of resolutions SC Res.817 (1993) and GA Res,47/225 (1993) affirm that Macedonia fulfills the prescribed admission criteria, and yet these resolutions impose the above mentioned additional conditions on the admission and membership of Macedonia to UN.  That the additionally imposed conditions on Macedonian admission to UN reflect certain “political considerations”, and do not have legal character, follows from the fact that they do not serve the purpose of admission (prior fulfillment), but are, rather, introduced by the act of admission and transcend in time that act. Their imposition is clearly inconsistent with the above described interpretation of Article 4(1) of the Charter and in contradiction with the General Assembly resolution GA Res.197 (III, A) (1948) that requires “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”.[43] Therefore, the imposition of additional conditions on Macedonia for its admission to UN membership constitutes is a violation of Article 4(1) of the Charter as a legal norm. This circumstance opens a new possibility for resolving the problem of derogated legal status of Macedonia in the United Nations by juridical means and the problem of negotiations over the name.

As a mechanism for juridical redress of legal consequences generated by the violation of Article 4(1) of the Charter in the UN resolutions SC Res.817 (1993) and GA Res.47/225 (1993), the advisory jurisdiction of the International Court of Justice appears the most appropriate. The question of legality of these resolutions, in their parts related to the imposition of additional conditions on Macedonia, i.e. their compatibility with the provisions of Article 4(1), can be put before the Court by the General Assembly on request by Macedonia (or jointly with a group of member states that have already recognized Macedonia under its constitutional name). Since this question is of purely legal nature, the General Assembly may request an advisory opinion for it from the Court (in accordance with Article 96(1) of the Charter)[44]. The General Assembly cannot obstruct such a request for an advisory opinion of being put before the Court, because the requested opinion is related to the legality of its own act. Such an obstruction would mean that the General Assembly, as a political organ, is imposing its own response to a question regarding the legality of its own act, or else, imposing its own judgment in a case in which it itself is a party. Such obstruction would also be incompatible with the mission and duty of the UN Organization regarding the respect of international law.[45] On the other hand, since the question regarding the legality of imposed additional conditions on Macedonia for its admission to UN membership (which could also be formulated in another, but equivalent in meaning and purpose form) is related to the interpretation of Article 4(1) of the Charter, there cannot be any uncertainty about the Court’s competence for its consideration. Moreover, since the question of additional conditions for admission to membership is only a special case of the more general question on the exhaustiveness of admission conditions laid down in Article 4(1), already considered by the Court in 1948,[46] the Court’s opinion in this case cannot be different from that previously given. Similarly, the position of the General Assembly with respect to the Court’s advisory opinion cannot be different than that taken in 1948.

In the history of international organizations, and of the Court itself, this would not be the first case when the Court is requested to give its opinion on a question of breach of a constitutional document of the organization by the plenary organ of that organization. During the elections of new members of Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (IMCO) in 1959 by the Assembly of IMCO, the election criteria prescribed in the IMCO Convention have not been strictly observed. Most of the voting members of the organization have taken as a basis for their vote additional criteria not expressly provided for in the corresponding article of the Convention. On request by two members of IMCO, who contended that in the course of elections their constitutional rights have been violated, the IMCO Assembly, upon authorization by the UN General Assembly, put before the Court the question on legality of the   elections. The Court delivered its opinion in the negative. The analogy of Macedonian case with the described IMCO case is very close. The suggested method for resolving the question of the legal status of Macedonia in United Nations transposes the problem from the political into the legal arena. Although, the derogated legal membership status of Macedonia can be most clearly interpreted as violation of Article 2(1) of the Charter (“sovereign equality of members”), yet its juridical redress can be most easily effected by invoking the violation of Article 4(1) as most transparent.

It seems advisable that RM requests that the following Draft Resolution be placed at the

Session of the UN General Assembly:

 DRAFT RESOLUTION

The General Assembly

Considering Advisory Opinion of the International Court of Justice of 28 May, 1948,

Considering the General Assembly Resolution 197/III of 8 December, 1948,

Considering the General Convention on the Privileges and Immunities of the United Nations,

Taking note that a difference in legal interpretation of the Charter of the United Nations has

arisen between "the former Yugoslav Republic of Macedonia" and the United Nations over

the legality of conditions for admission of that state to membership of the United Nations,

and consequently over the legality of its current status in the Organization,

Considering Article 96 of the Charter of the United Nations,

For the purposes to determine whether additional requirements were imposed in the

procedure of admitting "the former Yugoslav Republic of Macedonia" to the membership of

the United Nations, out of the scope of the exhaustive conditions of Article 4(1) of the

Charter of the United Nations and to determine further course of action,

Decides to submit the following legal question to the International Court of Justice:

Is the Resolution 47/225 (1993) of the General Assembly, in its part relating to denomination

"The former Yugoslav Republic of Macedonia", with requirement for settlement of the

"difference that has arisen over the name of the State" legally in accordance with the

Charter of the United Nations? (Particularly, is the Resolution 817 (1993) of the Security

Council, in its parts relating to denomination "the Former Yugoslav Republic of Macedonia",

with requirement for settlement of the "difference that has arisen over the name of the State"

 legally in accordance with the Charter of the United Nations?).

Conclusions

The presented analysis of the legal status of Macedonia in the United Nations has revealed its non-standard form, different than that of all other UN members, and characterized by a severe derogation of its membership rights. This derogation extrapolates also to the entire legal personality of this UN member, and its effects extend beyond the UN system. This peculiar legal status is obviously generated by the additional admission conditions on Macedonia, for which we argued that represent a breach of Charter provisions. The issue of legal status of Macedonia in the UN cannot be, apparently, resolved by political means; the negotiations between Macedonia and Greece over the name seem to be a zero-sum game: Macedonia associates this name with its national identity, whereas Greece with its history. To avoid the absurd of potential endless negotiations and a UN member-state with a continuing provisional name, a practical approach to this problem would be to resort to the legal means for its solution. If the existing legal interpretation of Article 4(1) is applied to the UN resolutions related to Macedonian admission to UN, then the additional admission conditions imposed on Macedonia constitute violation of this article. The mode of redress via the advisory jurisdiction of International Court of Justice would then be the most promising approach to the problem.