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Misuse of the Concept of “Erga Omnes” in the Greek-Macedonian Name Dispute May 12, 2010

Posted by Yilan in Macedonia, Yunanistan.
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Sam Vaknin, Ph.D.

The “name issue” involves a protracted dispute over the last 18 years between two Balkan polities over Macedonia’s right to use its constitutional name, “The Republic of Macedonia”. The Greeks claim that Macedonia is a region in Greece and that, therefore, the country Macedonia has no right to monopolize the name and its derivatives (“Macedonian”).

The Greeks feel that Macedonians have designs on the part of Greece that borders the tiny, landlocked country and that the use of Macedonia’s constitutional name internationally will only serve to enhance irredentist and secessionist tendencies, thus adversely affecting the entire region’s stability.

Starting in the late 1970s, the Greeks have transitioned from a territorial-political Great Idea to a cultural-historical Great Idea. They now claim to be the sole spiritual descendants and successors to the Hellenic and Byzantine civilizations. The Greek Ministry of Foreign Affairs has this to say:

http://www.mfa.gr/www.mfa.gr/en-US/Policy/Geographic+Regions/South-Eastern+Europe/Balkans/Bilateral+Relations/FYROM/FYROM+-+THE+NAME+ISSUE.htm

“Historically, the Greek name Macedonia refers to the state and civilisation of the ancient Macedonians, which beyond doubt is part of Greece’s national and historical heritage and bears no relation whatsoever with the residents of the former Yugoslav Republic of Macedonia, who are Slavs by descent and arrived in the region of the ancient Kingdom of Macedonia at a much later stage.”

Macedonia retorts that it has publicly renounced any claims to any territory of any of its neighbors. Greece is Macedonia’s second largest foreign investor. The disparities in size, military power and geopolitical and economic prowess between the two countries make Greek “fears” appear to be ridiculous. Macedonians have a right to decide how they are to be called, say exasperated Macedonian officials.

The Greek demands are without precedent either in history or in international law. Many countries bear variants of the same name (Yemen, Korea, Germany until 1990, Russia and Byelorussia, Mongolia). Others share their name with a region in another country (Brittany in France and Great Britain across the channel, for instance). Currently, no UN member state bears a name with a geographic qualifier.

In the alliance’s Bucharest Summit, in April 2008, Macedonia was not invited to join NATO. Macedonia was rejected because it would not succumb to Greek intransigence: Greece insisted that Macedonia should change its constitutional name to cater to Greek domestic political sensitivities.

On its Website, the Greek Ministry of Foreign Affairs calls for:

“(T)he adoption of a definitive composite name with geographical qualification of the term Macedonia, for all purposes (erga omnes) and for all uses, so as to avoid confusion with Greek Macedonia and to put an end to the irredentist policy and territorial aspirations of the former Yugoslav Republic of Macedonia.”

This is a curious subversion of the principle of erga omnes.

“Erga Omnes” (“towards or in relation to everyone” in Latin) is a term reserved in international law to describe obligations of one state towards all other states, or towards the international community, or towards Mankind or Humanity as a whole. The operative word is: “obligations”. The principle of erga omnes is incorporated in the ILC Articles on State Responsibility and in various International Court of Justice (ICJ) decisions, most famously its obiter dictum in the Barcelona Traction Case (1970), where it said:
“(A)n essential distinction should be drawn between the obligations of a State towards the International community as a whole, and those arising vis-a-vis another State In the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the Importance of the rights Involved, all States can be held to have a legal Interest In their protection; they are obligations erga omnes. Such obligations derive, for example. In contemporary International law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, Including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered Into the body of general international law…; others are conferred by International Instruments of a universal or quasi universal character.”

These views were affirmed repeatedly in much newer cases (e.g., the East Timor Case, the Nuclear Tests Case, and the South West Africa Case rulings).

Erga omnes obligations can be incorporated in treaties, but they refer to acts or omissions, not to states of affairs. Thus, erga omnes can apply to conduct in the fields of human rights and the environment; to crimes against humanity (such as genocide, slavery, or racial discrimination); to peacekeeping, and so on. It cannot apply to a country’s name or to its constitutional arrangements as is demanded by Greece in its dispute with Macedonia over the latter’s name.

Moreover, there are grounds to claim that articles 55 and 56 of the United Nations Charter constitute a list of erga omnes obligations, among them: the maintenance of international peace and security; mutual respect for other countries’ sovereignty; the pursuit of justice; and the upholding of human rights. The right to self-determination (of peoples and minorities) – including the right to choose how they are called – has long been considered by many to be an erga omnes obligation. These obligations were expanded upon, interpreted, and embedded in a long range of international conventions and treaties and a case can and has been made (for instance, by Bruno Simma) that they are derivatives of jus cogens (peremptory norms that are the very foundations of the international order).

There are grounds to claim that Greece has repeatedly violated some of these obligations by imposing trade embargoes on Macedonia (in 1992 and 1994); by sanctioning its neighbor into changing its name (an insult to its sovereignty and right to self-determination); by violating the human rights of individuals in Greece who insist that they belong to a Macedonian minority with a distinct language and culture; and by endangering peace and stability in the region at large.

Erga omnes obligations are indivisible, multilateral, and non-reciprocal. In other words, a country cannot breach its erga omnes obligations in retaliation for a similar or dissimilar breach by another polity, even if these obligations are set in specific multilateral treaties. The ICJ in its Advisory Opinion on “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide” wrote:

“In such a convention the contracting States do not have an interest of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of a maintenance of a perfect contractual balance between the rights and duties.”

Does the act of recognition of a State with a specific name by multiple States give rise or crystallize a new erga omnes obligation? Of course not. It only means that the parties implicitly and reciprocally accept erga omnes obligations that are of the jus cogens type as well as erga omnes obligations to which they are signatories in multilateral treaties. Recognition of a state is merely the acceptance of a factual situation in conformity with the criteria of statehood, it creates no new entities, nor does it generate new international or multilateral rights or obligations. On the very contrary: recognition is often premised on the explicit adoption and acceptance of erga omnes obligations by the state seeking it.

Whatever transpires in this most inane of international conflicts, the misuse of the term “erga omnes” should be dispensed with forthwith. It is either the outcome of ignorance or malice.

Bibliography

Cassese, Antonio – International Law – Oxford University Press, 2002

Pavkovic, Aleksandar and Radan, Peter – Creating New States: Theory and Practice of Secession – Ashgate Publishing, UK, 2007

Pegan, Olivia Lopes – Counter-claims and Obligations Erga Omnes before the International Court of Justice – European Journal of International Law 9 (1998), pp.724-736

Posner, Eric A. – Erga Omnes Norms, Institutionalization, and Constitutionalism in International Law – U of Chicago Law & Economics, Olin Working Paper No. 419 and U of Chicago, Public Law Working Paper No. 224

Ragazzi, Maurizio – The Concept of International Obligations Erga Omnes – Oxford Scholarship Online: January 2010

Simma, Bruno – From Bilateralism to Community Interest in International Law – RdC (Recueil des Cours) 250 (1994), 229 on.

Tams, Christian J. – Enforcing Obligations Erga Omnes in International Law – Cambridge Studies in International and Comparative Law (No. 44) – 2006

Zemanek, Karl – New Trends in the Enforcement of erga omnes Obligations – J.A. Frowein and R. Wolfrum (Eds.) – Max Planck Yearbook of United Nations Law, pp.1-52 – Netherlands, Kluwer Law International

Sam Vaknin ( http://samvak.tripod.com ) is the author of Malignant Self Love – Narcissism Revisited and After the Rain – How the West Lost the East. He served as a columnist for Global Politician, Central Europe Review, PopMatters, Bellaonline, and eBookWeb, a United Press International (UPI) Senior Business Correspondent, and the editor of mental health and Central East Europe categories in The Open Directory and Suite101.

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