The former Yugoslav Republic of Macedonia’s (FYROM) accession process to NATO is a sui generis process whose outcome is far from certain. There has never been such a complex and politically fragile NATO accession process. The possible obstacles relate to political and legal, constitutional and international law parameters, which threaten the overall success and sustainability of the project. In this brief post, we will shed light on the pathologies of the multi-step accession process, and argue that an alternative route could have possibly been followed.
In the background of this discussion, one should not forget the 27-year old name dispute between Greece and FYROM. On the 17th of June 2018, an agreement was signed between the two states at Prespes Lakes, seemingly settling the political conflict by, inter alia, establishing a process with multiple levels and highly dependent on constitutional intricacies (the ‘Final Agreement’). Greece agreed to not object to FYROM’s membership application to international organizations (only if it applies to become a member under the agreed name mentioned below) and, in addition, notified NATO that it supports the extension of an accession invitation to FYROM (Article 2 paras 1 and 4). On the other hand, FYROM agreed to use the official name ‘Republic of North Macedonia’, erga omnes, whereas its nationality and language would be defined as ‘Macedonian/citizen of the Republic of North Macedonia’ and ‘Macedonian language’ respectively.
After signing the Final Agreement, NATO extended an invitation to FYROM for the initiation of accession talks in the context of the Brussels NATO Summit on the 11th-12th of July 2018. This is the first step in NATO’s accession process leading to official membership (called ‘enlargement process’; see 1995 NATO Study on Enlargement and see further here). Accession to NATO is conditional upon, among others, unanimous consent by all NATO members (Article 10 North Atlantic Treaty), expressed through the signing and ratification of the accession protocols resulting from the completion of accession talks and the remaining accession steps.
In the 2018 Brussels NATO Summit Declaration, it was stated that ‘[f]ull implementation of all prescribed internal procedures with respect to the agreement on the solution of the name issue is a condition for a successful conclusion of the accession process.’ It follows that FYROM’s NATO accession procedure is contingent upon the implementation of the aforementioned bilateral agreement with Greece, creating major questions about the feasibility of the whole project and raising doubts about the legal and political complications in the instance of failure.
This is more than merely a theoretical scenario, and one that acts beyond political rhetoric. It is therefore crucial to look first at the commitments undertaken by FYROM. Under article 1(4) of the Final Agreement, FYROM shall first submit the agreement to its Parliament for ratification and then notify Greece (this has already taken place, see here); second, ‘if it decides so’, it may hold a referendum; and third, it shall commence constitutional amendments, complete them in total by the end of 2018, and then notify Greece.
This is not an easy task. First, the results of the referendum as well as its turnout are uncertain (see further Article 73 of the FYROM Constitution). Importantly, the greatest hurdle will be the implementation of the constitutional amendments. According to Article 131 of the FYROM Constitution, the decision to initiate a change in the Constitution as well as the amendment decision itself require a two-thirds majority vote of the total number of Representatives. Despite the optimism expressed by FYROM’s Prime Minister Zoran Zaev of attaining this majority, this in reality is far from guaranteed. The opposition parliamentary group VMRO encompasses 51 MPs and has publicly expressed its strong views against the agreement, thus forming a potential blocking minority to the amendment (VMRO also abstained from the ratification procedure). The double refusal by President Ivanov to sign the promulgation declaring the law ratifying the agreement is an additional example of the uncertainty surrounding FYROM’s domestic affairs (see Article 75 of the FYROM Constitution). Also, all steps must be completed within a very narrow timeframe – the end of 2018 (Article 1(4)(e) Final Agreement). Failure to implement these steps would sabotage the whole process of settling the name dispute and, consequently, the ongoing NATO enlargement process would come to an end.
On the other hand, assuming that FYROM successfully implements the aforementioned steps, Greece has undertaken to promptly ratify the Final Agreement (Article 1(4)(f)) and the NATO accession protocol (Article 2(4)(b)(ii)). However, the coalition government only has a slender majority of 152 out of 300 MPs, and the minor coalition partner (‘Independent Greeks’) has expressed its strong opposing views to the Final Agreement. This may hinder the simultaneous ratification of the Final Agreement and the NATO accession protocol.
Aside from the political and practical complications that would occur in case of non-ratification by Greece, international law issues would also arise. It should be recalled that Greece and FYROM signed an Interim Accord in 1995, which will only get terminated after the entry into force of the Final Agreement. According to Article 11 paragraph 1 of the Interim Accord, Greece ‘agrees not to object to the application by or the membership of [FYROM] in international, multilateral and regional organizations and institutions of which [Greece] is a member.’ This is under the condition that the state would be referred to the organization under the name ‘former Yugoslav Republic of Macedonia’ (paragraph 2 of UN Security Council resolution 817 (1993)). Greece was found to be in breach of this obligation by the ICJ in 2008 on the issue of accession of FYROM to NATO. The Interim Accord will remain in force in case of non-ratification of the Final Agreement, posing the risk of further litigation thereunder, and, in case of non-ratification of the NATO accession protocol, one should also bear in mind the obligation not to defeat the object and purpose of a treaty prior to its entry into force under article 18 of the 1969 Vienna Convention on the Law of Treaties.
The aforementioned intertwined domestic and international multi-level processes are far from simple and do not guarantee a smooth path to the resolution of a decades-long dispute. The strict timeframe of the Final Agreement in combination with the usually fast-track NATO accession process may deepen the existing political crisis. Providing an invitation for accession talks to FYROM, which will in turn lead to accession talks with NATO experts and member representatives, will result in the involvement of more actors in an already strained dispute and to reputational risks. It is questionable why such urgency and complexity were necessary. A reasonable alternative would be for the accession process to begin after the entry into force of the Final Agreement. A future accession invitation without an asterisk, after the final resolution of the name dispute with Greece, would better safeguard the institutional integrity of NATO, as well as the decisive and bona fide settlement of a decades-long dispute.
*Panagiotis Doudonis
Lecturer, DPhil Candidate in Law, Oriel College, Oxford, UK
*Eirini Kikarea
PhD Candidate in Law, Magdalene College, Cambridge, UK