Here Comes the Name Again: Treaty Making at the Epicenter of the Greek Debate over the agreement with the former Yugoslav Republic of Macedonia
This week, the Prime Ministers and Foreign Ministers of Greece and the former Yugoslav Republic of Macedonia reached agreement over the long running dispute regarding the name of the latter. After independence from the Socialist Federal Republic of Yugoslavia, the former Yugoslav Republic continued to use the name it had used as an entity within Yugoslavia, namely the Republic of Macedonia. Greece objected strongly to the use of this name and over the last 25 years or so we have seen sanctions imposed, Security Council Resolutions with provisional designations, an Interim Accord in 1995 and a case before the ICJ which culminated in a 2011 decision finding a violation of that Accord on the part of Greece due to its objections to fYR Macedonia being invited to join NATO in late 2008.
The agreement provides for the use erga omnes of the name ‘Republic of North Macedonia’ as the name of fYR Macedonia, makes provision for other eventualities, such as adjectival uses, commercial brands and designations, and cooperation between the two states in various areas including defence, and seemed to have finally brought resolution to this bizarre dispute. Not so fast. In the last few days, provisions of the Vienna Convention on the Law of Treaties and general international law regarding treaty making powers and the process of signature, ratification, and entry into force, have made their way to the epicenter of the Greek debate over the matter. In an article on 11 June 2018 in the Greek conservative daily Kathimerini[link in Greek], Georgios Gerapetritis, a Professor of Public Law at the University of Athens, argued that by signing the agreement, the Greek Prime Minister (or, as the case actually is, the Foreign Minister) would be binding Greece to the obligations under the Convention irrespective of its (domestic) ratification by the Greek Parliament, which only serves to introduce the treaty into domestic Greek law. This would expose Greece to international responsibility.
The argument is flawed. The agreement provides for a carefully choreographed process of signature, (domestic) ratification by fYR Macedonia’s Parliament, the holding of a referendum in fYR Macedonia, the passing of constitutional amendments there to reflect the agreements reached, and finally (domestic) ratification by Greece, which will lead to an exchange of instruments of ratification and the agreement’s entry into force (as provided for in Articles 20 and 1(4)). In turn, Greece undertakes not to block the extension to fYR Macedonia of an invitation to join NATO and to allow the commencement of accession talks with the EU (Article 2(4) of the Agreement) pending final entry into force of the Agreement, but conditions any accession to NATO to the entry into force of the Agreement. As such, the only obligations arising from the signature of the Agreement on the part of the two Foreign Ministers is the obligation reflected in Article 18 of the Vienna Convention on the Law of Treaties not to defeat the object and purpose of the treaty pending entry into force. Essentially, this is a good faith obligation, which obligates the parties not to take action which would prevent the treaty obligations from being capable of being fulfilled, and to conduct themselves in good faith pending its entry into force. An example of bad faith could be if the government of fYR Macedonia were to refuse to bring the required constitutional amendments before parliament, or if it were to bring them there but recommend that the parliament vote against them. On the part of Greece, the only good faith obligation arising is not to block the commencement of the process of accession of fYR Macedonia to NATO and the EU, an obligation of course that Greece already has under the Interim Accord of 1995, as also confirmed by the ICJ in 2011 [both linked above]. If anything, that obligation of Greece is now curtailed, as consent to actual accession is conditioned by the Agreement on the entry into force of the Agreement.
Hence, no obligation other than the good faith obligation of Article 18 arises for Greece, which indeed can be seen as less onerous than the obligation that Greece already has under the Interim Accord. And yet, based on the flawed argument by Professor Gerapetritis, the conservative leader of the Opposition, Kyriakos Mitsotakis (the son of the Prime Minister in power at the time that this dispute emerged), has argued that the Greek Prime Minister or Foreign Minister has no authority to sign the Agreement on Sunday. This is because, the argument goes, the minor coalition partner in the Greek Government (a small party called ‘Independent Greeks’, whose leader is the current Defence Minister) has taken a position against the Agreement, while at the same time confirming that it maintains its confidence in the Government.
The Government responded, in part relying on a response I wrote on 13 June 2018 in the Greek daily Efimerida ton Syntakton [link in Greek] where I exposed the flawed nature of Gerapetritis’s argument, that under international law the PM and FM are ex officio empowered to sign the Agreement, that the State is not exposed to international responsibility for not complying with an agreement that has not entered into force, and that if the Opposition wishes to challenge confidence in the Government, it should do so not by asking for the Agreement to come before Parliament for ‘pre-ratification’ (ie asking the Parliament to empower the Prime Minister or Foreign Minister to exercise a power they already have) but by bringing a motion of no confidence in the Government.
Cornered as the Opposition was, it was actually forced to do so, to little prospect of success (notably, no motion of no confidence in the Government has carried in Greece since the re-establishment of democracy in 1974). The debate is now in full swing, with international law at the epicenter, and the motion will be put to a vote tonight.