tag:blogger.com,1999:blog-21440967.post114409954400563871..comments2023-11-02T13:21:56.205+01:00Comments on Зомбификација ©: Cogito, ergen sum?Anonymoushttp://www.blogger.com/profile/15632666816308875370noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-21440967.post-13532586176384212302007-08-26T13:34:00.000+02:002007-08-26T13:34:00.000+02:0023 Romanian Journal of Political ScienceRESPONSIBI...23 Romanian Journal of Political Science<BR/>RESPONSIBILITY OF THE UNITED<BR/>NATIONS FOR MACEDONIA`S ACCESSION<BR/>TO THE UN<BR/>Igor Janev*<BR/>Abstract:<BR/>In the present article we shall examine the legal consequences of the unlawful<BR/>admission of Macedonia to UN membership and the possible ways of judicial reparation.<BR/>The emphasis will be placed on the relationship between the rights of states as applicants<BR/>or members of the UN Organization, as derived from the Charter, other general UN<BR/>documents and the UN legal practices on one side, and the duties of the Organization<BR/>relating to those rights (i.e. its adherence to the provisions of the Charter), on the<BR/>other hand. Before analyzing in more depth the illegal character and legal effects of the<BR/>breaches made by the UN Organization in the process of admitting Macedonia as UN<BR/>member and the means of restituting the proper legal status of Macedonia as member<BR/>of the United Nations, we shall briefl y account on the problem of legal responsibility of<BR/>international organizations (in particular the United Nations) for their unlawful acts (or<BR/>omissions), with special attention to those acts that are committed in their relations with<BR/>their member states and other international legal persons.<BR/>Keywords<BR/>UN, Macedonia, FYROM, Greece, reparation, admission, negotiation, UN Charter<BR/>*Igor Janev holds a Ph.D. degree and was assistant to the president of the Republic of Macedonia (1998-<BR/>1999).<BR/>24 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>1. Introduction<BR/>The admission of Macedonia to UN membership in April 1993 by the General<BR/>Assembly resolution 47/225 (1993)1, pursuant to the Security Council resolution 817<BR/>(1993)2 recommending such admission, was associated with imposing on the applicant<BR/>two additional conditions according to those explicitly provided in Article 4(1) of the<BR/>UN Charter, namely acceptance (i) of being provisionally referred to as the “Former<BR/>Yugoslav Republic of Macedonia” (for all purposes within the United Nations) and<BR/>(ii) of negotiating with Greece over its name.3 These obligations are part of the above<BR/>mentioned resolutions, in which it has been also recognized (explicitly in SC resolution<BR/>817) that the applicant fulfi lls the standard criteria of Article 4(1) of Charter required<BR/>for admission. In a recent paper4 we have analyzed the legal nature of the additional<BR/>conditions imposed on Macedonia for its admission to UN membership in the context of<BR/>the advisory opinion of International Court of Justice (I.C.J.) given in 1948 regarding the<BR/>conditions for admission of a state in the United Nations5 (and subsequently accepted<BR/>by the General Assembly6) and concluded that the attachment of conditions (i) and (ii)<BR/>to those specifi ed in Article 4(1) of the Charter for the admission of Macedonia to UN<BR/>membership is in violation with the Charter.<BR/>2. Legal Responsibility of United Nations for Acts Involving their Relations<BR/>with Member States<BR/>The question of legal responsibility of international organizations for their illegal acts<BR/>has been subject of discussions among the legal scholars since the forties and fi fties.7 The<BR/>main interest has been focused on the legal effects of such acts and the possibilities of<BR/>their judicial redress. In absence of a developed legal practice in the area of international<BR/>1 GA Res. 47/225, 8 April 1993 [hereinafter GA Res. 47/225 (1993)].<BR/>2 SC Res. 817, 7 April 1993 [hereinafter SC Res. 817 (1993)].<BR/>3 After a reference in the preamble to the SC recommendation for admission of the applicant to UN<BR/>membership, the General Assembly Resolution 47/225 (1993) states that the General Assembly “[d]ecides<BR/>to admit the State whose application is contained in document A/47/876 - S/25147 [i.e. the Republic of<BR/>Macedonia] to membership in the United Nations, this State being provisionally referred to for all purposes<BR/>within the United Nations as “the former Yugoslav Republic of Macedonia” pending settlement of the<BR/>difference that has arisen over the name of the State.” The imposed condition for negotiation with Greece<BR/>over the name of the applicant is implied in the last part of the decision. Note that this condition imposes<BR/>at the same time an obligation to the applicant when admitted to UN membership.<BR/>4 Janev, “Legal Aspects of the Use of a Provisional Name for Macedonia in the United Nations System”,<BR/>93 AJIL (1999) 155.<BR/>5 Admission of a State to the United Nations (Charter, Art. 4), ICJ Reports (1948) 57 [hereinafter Admission].<BR/>6 GA Res. 197 (III,A), 8 December 1948 [hereinafter GA Res. 197 (III,A) (1948)].<BR/>7 Guggenheim, “La Validité et la Nullité des Actes Juridiques Internationaux”, 47 Hague Recueil, (1949)<BR/>195-263; see also the volumes of Annuaire de l”Institut de Droit International, 44-I (1952), 45-II (1954), 47-I<BR/>(1957), 47-II (1957).<BR/>25 Romanian Journal of Political Science<BR/>institutional life, the discussions on the matter had so far a predominantly doctrinal<BR/>character. With the lapse of time, accumulation of a considerable body of relevant legal<BR/>practice took place during the last fi ve decades, which, coupled with the development<BR/>and consolidation of certain legal concepts of international law (such as the legal<BR/>personality of international organizations, etc.), laid the foundations for development of<BR/>a fairly consistent theoretical framework for the treatment and redress of the illegal acts<BR/>of international organizations.8 An international organization, as an international legal<BR/>person, derives its powers (explicitly expressed or implied) from its constitutional source<BR/>and is bound to act only within the limits and in accordance with the terms of the grant<BR/>made to it by its members. The most obvious illegal acts that an organization can commit<BR/>in exercising its powers and functions are: breach of the constitutional provisions (e.g. by<BR/>exceeding its powers), error in the interpretation of constitutional provisions, assertion<BR/>of competence by an incompetent organ, improper exercise of a discretion on the basis<BR/>of inaccurate or incomplete knowledge or for wrong reasons or motives, implementation<BR/>of a decision adopted by a majority but inconsistent with the constitutional provisions,<BR/>suspension or expulsion from the organization in absence of proper justifi cation,<BR/>wrongful apportionment of expenses among the members, breach of the staff rules and<BR/>regulations, etc.9 Unless there are specifi c provisions in the constitutional instrument of<BR/>the organization (such as in the case of European Communities10), the effects of the illegal<BR/>acts of the organization are governed by the general principles and practice of international<BR/>law.11 The United Nations Organization possesses an international legal personality and<BR/>the capacity to bring international claims12, but the Charter does not contain provisions<BR/>which explicitly address the question of its responsibility for unlawful acts of its organs<BR/>and the judicial redress of their consequences. The juridical responsibility of the United<BR/>Nations Organization for its own acts is, however, a correlative of its legal personality<BR/>and the capacity to present international claims. In the well known Reparation13 case,<BR/>the International Court of Justice, asserting the international legal personality of the<BR/>United Nations Organization, pointed out that “...the rights and duties of an entity such<BR/>as the [U.N.] Organization must depend upon its purposes and functions as specifi ed<BR/>or implied in its constituent documents and developed in practice”14, thereby stating<BR/>that this organization has certain duties related to its purposes and functions. Although<BR/>the International Court of Justice may, according to Article 65(1) of its Statute, offers<BR/>8 D.W. Bowett, The Law of International Institutions (4th edn., 1982) 362-365. For a more critical recent review<BR/>of this issue, particularly regarding the acts of the Security Council, see Alvarez, “Judging the Security<BR/>Council”, 90 AJIL (1996) 1-39, and references therein.<BR/>9 Lauterpacht, “The Legal Effects of Illegal Acts of International Organizations”, in Cambridge Essays in<BR/>International Law. Essays in honour of Lord McNair (1965) 88-121, at 89.<BR/>10 See H. Schermers, D. Waelbroeck, Judicial Protection in the European Communities (4th ed., 1987).<BR/>11 I. Brownlie, Principles of Public International Law (4th edn., 1990) 701.<BR/>12 Ibid., 680-681, 688-690.<BR/>13 Reparation for Injuries suffered in the Service of the United Nations, ICJ Reports (1949) 174 [hereinafter Reparation].<BR/>14 Ibid., at 180.<BR/>26 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>an advisory opinion on any legal question at the request of the General Assembly and<BR/>Security Council and/or of any UN body within the UN system upon authorization<BR/>by the General Assembly (Article 96 of the Charter), the Court still does not have any<BR/>juridical control over the legal effects of the acts of the Organization. The advisory<BR/>opinions of the Court have no binding power themselves, but may be (and normally<BR/>are) accepted by the bodies requesting them as they induce “moral consequences which<BR/>are inherent in the dignity of the organ delivering [them].”15 Exception to this rule is<BR/>the General Convention on the Privileges and Immunities of the United Nations of<BR/>1946 which provides that the opinion specifi ed by the Court (upon the request of the<BR/>Organization) regarding differences which could arise between the Organization and a<BR/>signatory state shall be binding to the parties.16<BR/>In the advisory jurisdiction of the Court there have been only a few cases in which<BR/>the relations of United Nations with the states have been involved. In the Reparation and<BR/>Mazilu17 cases the request for an advisory opinion was initiated and brought to the Court<BR/>by the Organization. In the IMCO18 and Certain expenses19 cases, the request for Court’s<BR/>opinion was initiated by the member states (of the IMCO and the UN, respectively). For<BR/>the purposes of our further discussion, we shall outline some of the features of these<BR/>and of two other cases.<BR/>The IMCO case is eloquent in several respects. It is the fi rst case in the history of<BR/>international organizations and of the Court itself when the Court was requested to<BR/>express its opinion on a question of breach of a constitutional document (the Convention<BR/>for the establishment of IMCO) made by the plenary organ (the Assembly of IMCO)<BR/>of the organization. Another feature of this case is that the question on legality of<BR/>the committed act (the election of the Maritime Safety Committee at the fi rst session<BR/>of IMCO Assembly in 1959) was put before the Court by the IMCO Assembly itself<BR/>(authorized by the UN General Assembly for such an action) on request by two member<BR/>states of the organization (Liberia and Panama) who contended that in the course of<BR/>the elections their constitutional rights have been violated (namely, to be automatically<BR/>elected in the Committee membership in accordance with the explicitly prescribed criteria<BR/>in Article 28 of the IMCO Convention which they have been fulfi lling). What happened<BR/>was that during the elections, most of the voting members of the organization have<BR/>taken as a basis for their vote additional criteria, not expressly provided for in Article 28<BR/>of the Convention, to which they have attached a greater relevance than to those laid<BR/>15 Judge Azevedo, in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First phase),<BR/>ICJ Reports (1950) 80.<BR/>16 General Convention on the Privileges and Immunities of the United Nations (13 Feb. 1946), art. VIII, Sect. 30.<BR/>17 Applicability of Article VI, Section 22, of the General Convention on the Privileges and Immunities of the United<BR/>Nations, ICJ Reports (1989), 177 [hereinafter Mazilu case].<BR/>18 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, ICJ<BR/>Reports (1960) 145 [hereinafter IMCO].<BR/>19 Certain Expenses of the United Nations (Art. 17, para 2, of the Charter), ICJ Reports (1962) 151 [hereinafter<BR/>Certain Expenses].<BR/>27 Romanian Journal of Political Science<BR/>down explicitly in that article. The Court delivered the opinion “that the Maritime Safety<BR/>Committee of IMCO which was elected on January 15, 1959, [was] not constituted in<BR/>accordance with the Constitution for the establishment of the Organization.”20<BR/>The above opinion of the Court has been accepted by the IMCO Assembly at its next<BR/>session. The Assembly resolved that the previously elected Committee should be dissolved<BR/>and decided “to constitute a new Maritime Safety Committee in accordance with Article<BR/>28 of the Convention as interpreted by the International Court of Justice and its Advisory<BR/>Opinion.”21 The Assembly also decided to confi rm and adopt the measures which have<BR/>been taken by the previously elected Committee in the period (1959-1961) between the<BR/>two Assembly sessions. Without further debating the IMCO case22, we would like to<BR/>point out the similar character of the illegal act (breach of a procedural constitutional<BR/>provision by the plenary committee of the organization) in the IMCO case with that of<BR/>Macedonian admission to UN membership. As we shall see, the legal consequences in the<BR/>Macedonian case are much more complex. Nevertheless, the IMCO case may serve as a<BR/>model for the juridical redress of the Macedonian case as well.<BR/>In the Certain expenses23 case the question put before the Court resulted from the<BR/>largely divided views of the UN members regarding the constitutional basis of the<BR/>expenditures authorized by a number of General Assembly resolutions for the operation<BR/>of the UN Emergency Force (UNEF) in the Middle East and for the UN operations in<BR/>Congo (ONUC). The division of the UN members in this case was essentially related<BR/>to the question of legality of the mentioned operations under the terms of the Charter,<BR/>i.e. regarding the validity of corresponding GA resolutions. The request for the Court’s<BR/>opinion took the form of whether these expenditures constituted “expenses of the<BR/>Organization” within the meaning of Article 17(2) of the Charter. This case illustrates<BR/>how the decisions of the General Assembly that are of binding nature represent acts of<BR/>the Organization. According to Article 18 of the Charter, such acts of binding nature<BR/>of the General Assembly are related to the budget of the Organization and to the legal<BR/>status of its members (e.g. admission, suspension and expulsion of members).<BR/>In order to further elucidate the relationship between the legal responsibility of<BR/>the United Nations Organization and the legal status of its members, we shall briefl y<BR/>outline the earlier mentioned Reparation case.24 The question put before the Court in the<BR/>General Assembly request for advisory opinion was whether the United Nations, as an<BR/>Organization, has the capacity to bring an international claim against a state responsible<BR/>(de jure or de facto) for the injuries suffered by an agent of the Organization in<BR/>performing its duties. It aimed obtaining reparation due regarding the damage caused (a)<BR/>to the United Nations and (b) to the victim (or to persons entitled through him). In the<BR/>20 Supra note 18, at 150.<BR/>21 IMCO Assembly Resolution A. 21 (II), 6 April 1961.<BR/>22 Lauterpacht, supra note 9, at 100-106.<BR/>23 Supra note 19.<BR/>24 Supra note 13.<BR/>28 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>derivation of its affi rmative response to these questions, the Court fi rst established that<BR/>the UN Organization possesses international legal personality, necessary for discharging<BR/>its functions and duties on the international plane, that the Charter defi nes the position<BR/>of the member states in relation to the Organization (requiring their assistance in the<BR/>discharge of Organization’s functions (Article 2(5)), acceptance to carry out its decisions<BR/>(and those of the Security Council) and giving the Organization the necessary privileges<BR/>and immunities on their territories (Articles 104, 105)), and that the rights and duties of<BR/>the Organization are closely related to its functions and purposes as specifi ed or implied<BR/>in the Charter. From the facts that the question on the capacity of UN Organization to<BR/>bring an international claim against a member state was put in the context of the legal<BR/>liability of that state (to pay reparations), and that the Court’s opinion was given in the<BR/>affi rmative, it follows that the Charter is an international treaty to which the Organization<BR/>effectively is a party and which, by defi ning the mutual rights and responsibilities of the<BR/>parties, establishes a contractual relationship between them.25<BR/>This is further reinforced by the fact that the Court also invoked the General Convention<BR/>on the Privileges and Immunities of the United Nations which establishes explicitly the<BR/>rights, duties and mutual responsibilities among the signatories (the member states) and<BR/>the Organization, and even defi nes (Section 30 of Article VIII) the mode of judicial<BR/>settlement of the disputes between the different parties. It can be concluded that both the<BR/>Charter and the Convention on Privileges and Immunities establish a relationship between<BR/>the legal responsibility and the legal status of the international persons involved (the<BR/>Organization and the member states). As we have seen, this relationship is of contractual<BR/>nature and must involve the juridical liabilities of the parties.<BR/>The Mazilu case26 provides a typical example when the legal status of the UN<BR/>Organization is violated by a member state. In performing his duties on an UN (ECOSOC)<BR/>mission, Mr. Mazilu was deprived from his privileges and immunities by Romania, and<BR/>ECOSOC requested the Court for an advisory opinion regarding the applicability of<BR/>Article VI, Section 22, of the Convention on the Privileges and Immunities of the<BR/>United Nations in the case of Mr. Mazilu. Despite the offi cial objection of Romania<BR/>for presenting the request to the Court, the Court has considered the case and delivered<BR/>its opinion in the affi rmative. Being requested pursuant Article 96(2) of the Charter,<BR/>and not under Section 30 of Article VIII of the Convention (to which Romania had<BR/>expressed reservation during its accession to the Convention), the Court’s opinion could<BR/>not have a binding force.<BR/>The Effects of Awards case27 is an example when the Organization was found liable for<BR/>violating the legal status of staff members of the Organization. The question put before<BR/>25 The treaty character of the Charter has been also strongly emphasized by the Court in the Admission<BR/>case (supra note 5).<BR/>26 Supra note 17.<BR/>27 Effects of Awards of Compensation made by the United Nations Administrative Tribunal, ICJ Reports (1957) 47<BR/>[hereinafter Effects of Awards].<BR/>29 Romanian Journal of Political Science<BR/>the Court by the General Assembly was to inquire whether there is any legal ground<BR/>for refusing to give effect to an award of compensation made by the United Nations<BR/>Administrative Tribunal in favor of a UN staff member whose contract of service has<BR/>been terminated without his assent. The Court’s opinion was given in the negative. This<BR/>opinion was based on the arguments that a contract of service, concluded between a staff<BR/>member and the UN Secretary General, acting on behalf of the Organization, engages<BR/>the legal responsibility of the Organization as a juridical person with respect to the other<BR/>party, and that, in accordance with Article 10 of the Tribunal’s Statute, the judgment of<BR/>the Tribunal is binding to the parties, fi nal and without appeal. This case illustrates that,<BR/>when the Organization violates the legal status of its elements (including that of its staff<BR/>members as defi ned by the contract of service), the Organization becomes responsible<BR/>as a legal person. Since the UN Charter possesses also features of contractual character,<BR/>through which the Organization appears as a party, particularly in matters related to the<BR/>legal status of its members (in other words, since the legal status of both the Organization<BR/>and its member is of contractual origin), it can be concluded that the violation of any<BR/>aspect of the legal status of either of them by the other leads to a legal responsibility of<BR/>former and involves their legal personalities.<BR/>From the above briefl y analyzed cases on which the ICJ has given its opinion, several<BR/>conclusions can be drawn:<BR/>In discharging its constitutional functions the UN Organization has both rights and<BR/>duties expressed in or derived from the constitutional provisions and has a legal<BR/>responsibility for their lawful implementation;<BR/>The UN Charter, as a multilateral treaty, enables the Organization with an<BR/>international legal personality for carrying out its duties and functions, and in the<BR/>matters that involve the relations of the Organization (as a legal person) with its<BR/>members it acquires features of contractual character (engaging the liability of the<BR/>parties);<BR/>Breaches of constitutional provisions by the plenary body of the Organization,<BR/>related to the rights and legal status of its members, represent unlawful acts of<BR/>the Organization (with respect to another international person), for which the<BR/>Organization is legally responsible;<BR/>For violations by the Organization of the constitutional provisions, particularly the<BR/>rights related to the legal status of its member states, the advisory opinion of the<BR/>International Court of Justice may serve as an instrument for settlement of the<BR/>disputes (in analogy with the IMCO and Effects of Award cases).<BR/>1.<BR/>2.<BR/>3.<BR/>4.<BR/>30 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>3. The Unlawful Character of the Admission of Macedonia to UN Membership<BR/>As mentioned in the Introduction, Macedonia has been admitted to UN membership<BR/>by the General Assembly resolution 47/225 (1993)28 subject to acceptance (i) to be<BR/>referred with the provisional name “the Former Yugoslav Republic of Macedonia for<BR/>all purposes within the United Nations”, and (ii) to negotiate with Greece over its name.<BR/>These two conditions for admission of Macedonia to UN membership are additional<BR/>to those written explicitly in Article 4(1) of the Charter, which the recommending SC<BR/>resolution 817(1993)29 recognizes to be fulfi lled by the applicant. In characterizing the<BR/>legality of imposing the above two conditions to the applicant for effecting its admission<BR/>to UN membership, three questions should be analyzed:<BR/>are the conditions (i) and (ii) indeed additional to those laid down in Article 4(1) of<BR/>the Charter, or are they only part of them, or contained in them;<BR/>does the conditions provided in Article 4(1) of the Charter form an exhaustive set<BR/>of necessary and suffi cient conditions for admission of a state to UN membership,<BR/>or can this set be expanded by additional conditions;<BR/>are the UN political bodies (the Security Council and the General Assembly) legally<BR/>entitled to expand the admission criteria of Article 4(1) of the Charter on the basis<BR/>of political considerations?<BR/>In order to analyze these questions we remind that Article 4(1) of the Charter<BR/>provides: “Membership in the United Nations is open to all other [i.e. other than the<BR/>original UN members] peace loving states which accept the obligations contained in the<BR/>present Charter and, in the judgment of the Organization, are able and willing to carry<BR/>out these obligations”. The conditions for admission to UN membership, as expressly<BR/>provided in this Article, require that the applicant (1) be a state, (2) be peace-loving,<BR/>(3) accepts the obligations of UN Charter, (4) be able to carry out these obligations<BR/>and (5) be willing to do so. The fulfi llment of these conditions by the applicant is a<BR/>prerequisite for recommending and for implementing the admission and they have to be<BR/>satisfi ed, according to UN, prior to the act of admission. The Security Council resolution<BR/>817(1993), recommending the admission, recognized that Macedonia had fulfi lled the<BR/>above conditions at the time of its application to UN membership.<BR/>In order to identify the nature of the conditions (i) and (ii) imposed on Macedonia<BR/>by the SC resolution 817 (1993) and the GA resolution 47/225(1993), one should look<BR/>fi rst into their functional role, i.e. whether they determine the suitability of the applicant<BR/>for membership. The conditions (i) and (ii), however, are imposed as requirements on<BR/>the applicant at the moment of its admission to UN membership, and they transcend<BR/>in time the act of admission. Such requirements do not correspond to the criteria the<BR/>applicant should fulfi ll prior to its admission, but they are, rather conditions which the<BR/>28 Supra note 1.<BR/>29 Supra note 2.<BR/>a)<BR/>b)<BR/>c)<BR/>31 Romanian Journal of Political Science<BR/>applicant should accept to carry on and fulfi ll after its admission to membership. The<BR/>strong Macedonian objection30 to the inclusion of such conditions in the SC resolution<BR/>817(1993) were completely ignored and the admission to UN membership was subjected<BR/>to their acceptance. The conditions for admission, imposed on the state by the act of its<BR/>admission, and which transcend that act in time, cannot be evidently regarded as part of,<BR/>or contained in, those enumerated in Article 4(1), the fulfi llment of which is required<BR/>prior to the act of admission. In absence of the institute of “conditional admission”<BR/>to the UN membership, the conditions (i) and (ii) must be regarded as conditions<BR/>transcending their cause. The additional character of these conditions compared to<BR/>those written in Article 4(1) is also obvious from the fact that, as it has been mentioned<BR/>earlier, the resolution SC Res. 817(1993) explicitly recognizes that the applicant satisfi es<BR/>the conditions for admission prescribed in Article 4(1) and recommends admission. The<BR/>very fact that the conditions (i) and (ii) transcend in time the act of admission indicates<BR/>that their character is not legal, but they rather have a political nature. At this point, we<BR/>would like to emphasize that the imposition of additional conditions (i) and (ii) in the SC<BR/>Res. 817 (1993) creates an internal logical inconsistency in this resolution. Apparently, the<BR/>motivation for imposing the conditions (i) and (ii) to the admission of Macedonia to UN<BR/>membership was the observation by the Security Council that “a difference has arisen<BR/>over the name of the State, which needs to be resolved in the interest of the maintenance<BR/>of peaceful and good-neighborly relations in the region”.31 This provision implies that<BR/>the applicant state is unwilling to carry out the obligation contained in Article 2(4) of the<BR/>Charter which requires that the “[m]embers shall refrain in their international relations<BR/>from the threat or use of force against the territorial integrity or political independence of<BR/>any state, or in any other manner inconsistent with the Purposes of the United Nations.”<BR/>On the other hand, the recognition contained in SC Res. 817 (1993) that the applicant<BR/>state fulfi ls the admission criteria of Article 4(1) means that the Security Council asserts<BR/>that the applicant state is a peace-loving state, able and willing to carry out the obligations<BR/>in the Charter. Therefore, the two statements in SC Res. 817 (1993) are contradictory to<BR/>each other.<BR/>The questions (b) and (c) put forward at the beginning of this Section have been<BR/>answered by the advisory opinion of the International Court of Justice in the Admission<BR/>case.32 This opinion provides an interpretation of Article 4(1) of the Charter and has<BR/>been accepted by the General Assembly.33 The advisory opinion states that a “member<BR/>of the United Nations that is called upon, by virtue of Article 4 of the Charter, to<BR/>pronounce itself by vote, either in the Security Council or in the General Assembly,<BR/>on admission of a state to membership in the Organization, is not juridical entitled to<BR/>make its consent dependent on conditions not expressly provided in paragraph 1 of<BR/>30 See UN SCOR, 48th Sess., Supp. Apr., May, June, at 35, UN Doc. S/25541 (1993).<BR/>31 Supra note 2, preamble.<BR/>32 Supra note 5.<BR/>Supra note 6.<BR/>32 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>that article”.34 This opinion of the Court was based on the arguments that the UN<BR/>Charter is a multilateral treaty whose provisions impose obligations on its members,<BR/>that Article 4 represents “a legal rule which, while it fi xes the conditions for admission,<BR/>determines also the reasons for which admission may be refused”35, that the enumeration<BR/>of the conditions in Article 4(1) is exhaustive, since in the opposite “[i]t would lead to<BR/>conferring upon Members an indefi nite and practically unlimited power of discretion in<BR/>the imposition of new conditions”36 (in which case the Article 4(1) would cease to be a<BR/>legal norm). The conclusion of the Court was that the conditions set forth in Article<BR/>4(1) are exhaustive: they are not only the necessary but also the suffi cient conditions for<BR/>admission to membership in the United Nations.37<BR/>The Court specifi cally addressed the question whether from the political character of<BR/>the organs responsible for admission (the Security Council and the General Assembly,<BR/>according to Article 4(2)), or for the maintenance of world place and security (Security<BR/>Council, according to Article 24 of the Charter), one can derive arguments which could<BR/>invalidate the exhaustive character of the conditions enumerated in Article 4(1). The<BR/>Court rejected this possibility and held that “[t]he political character of an organ cannot<BR/>release it from the observance of the treaty provisions established by the Charter when<BR/>they constitute limitations on its powers or criteria for its judgment”.38 Thus, according<BR/>to Court’s opinion, the Charter limits the freedom of political bodies and no “political<BR/>considerations” can be imposed on, or added to, the conditions prescribed in Article 4(1)<BR/>that could prevent admission to membership.<BR/>The advisory opinion of the Court also emphasized the functional purpose of the<BR/>conditions: they serve as criteria for admission and have to be fulfi lled, in the judgment of<BR/>the Organization, prior to the recommendation and the decision for admission.39 Further,<BR/>once it has been recognized by the competent UN organs that these conditions have been<BR/>fulfi lled, the applicant acquires a (unconditional) right to UN membership.40 This right<BR/>follows from the “openness” to membership enshrined in Article 4(1) and from the<BR/>universal character of the Organization. In the words of Judge Alvarez, “[t]he exercise<BR/>of this right cannot be blocked by the imposition of other conditions not expressly<BR/>provided for by the Charter, by international law or by convention, or on grounds of a<BR/>political nature.”41<BR/>As mentioned earlier, the General Assembly, by its Resolution 197(III, A) of 1948, has<BR/>accepted the Court’s interpretation of Article 4(1) of the Charter and recommended that<BR/>“each member of Security Council and of the General Assembly, in exercising its vote<BR/>34 Supra note 5, at 65.<BR/>35 Ibid. at 62.<BR/>36 Ibid. at 63.<BR/>37 Ibid. at 62<BR/>38 Ibid. at 64.<BR/>39 Ibid. at 65.<BR/>40 Ibid.<BR/>41 Ibid. at 71.<BR/>33 Romanian Journal of Political Science<BR/>on the admission of new Member, should act in accordance with the foregoing opinion<BR/>of the International Court of Justice.”42 Moreover, in the parts C, D, E, F, G, H, I, of<BR/>the same GA Resolution 197(III)43 of 1948, the General Assembly has implemented the<BR/>Court’s interpretation of Article 4(1) of the Charter by requesting the Security Council<BR/>to provide recommendations for admission of a number of states to UN membership,<BR/>the delivery of which was blocked by certain Security Council members on the basis of<BR/>arguments (of political nature) not strictly related to the conditions set forth in Article<BR/>4(1).<BR/>In view of the Court’s interpretation of Article 4 of the Charter as a legal norm<BR/>(which should be noticed also by the UN political bodies) and its acceptance by the<BR/>General Assembly [the GA Res. 197(III, A)], it is obvious that the imposition of additional<BR/>conditions on Macedonia for its admission to UN membership is a clear violation of<BR/>Article 4(1) of the Charter. Deriving from the fact that the additional conditions transcend<BR/>in time the act of admission (with no specifi ed time limit), it results that their imposition<BR/>did not serve the purpose of admission stipulations, but rather a specifi c political purpose.<BR/>This indicates that the additional conditions imposed on Macedonia for its admission to<BR/>UN membership have no legal character and, by their nature, are extraneous to those<BR/>contained in Article 4(1).<BR/>The violation of Article 4(1) of the Charter by the General Assembly Resolution<BR/>47/225(1993) is not a mere ultra vires act. The imposition of additional conditions to<BR/>Macedonia for its admission to UN membership means denial of its right to admission<BR/>once it has been recognized that it fulfi lled the exhaustive conditions set forth in Article<BR/>4(1). This right is enshrined in the Article 4(1) itself (“Membership in the United Nations<BR/>is open to all [other] peace-loving states ....”) and is implied by the principle of universality<BR/>of the United Nations Organization. For the Organization itself, the principle of its<BR/>universality and the provision for its “openness” to membership create a duty to admit<BR/>an applicant to UN membership when it has been recognized that it fulfi ls the criteria set<BR/>forth in Article 4(1). Thus, the imposition of additional conditions on a state, that fulfi lls<BR/>the prescribed admission conditions, violates the right of that state to become a member<BR/>of the Organization and one of the fundamental principles of the Organization as well.<BR/>The duty of the Organization to admit states that fulfi ll the conditions of Article 4(1)<BR/>to UN membership without imposing additional conditions has been recognized by the<BR/>General Assembly, as mentioned earlier.<BR/>42 Supra note 6, at 30.<BR/>43 GA Res. 197 (III,-C,D,E,F,G,H,I), 8 December 1948.<BR/>34 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>4. Legal Implications and Consequences of the Imposed Admission Conditions<BR/>We shall now attempt a more substantial analysis of the additional conditions imposed<BR/>on Macedonia by the UN in order to receive UN membership. We reiterate that they include<BR/>acceptance by the applicant (i) of “being provisionally referred to for all purposes within<BR/>the United Nations as “the former Yugoslav Republic of Macedonia” pending settlement<BR/>of the difference that has arisen over the name of the state”44, and (ii) of negotiating<BR/>with Greece over its name (implied in the second part of the above cited text common<BR/>to both GA Res. 47/225(1993) and SC Res. 817(1993) and from the provision in the SC<BR/>Res. 817 (1993) by which the Security Council “urges the parties to continue to cooperate<BR/>with the Co-Chairman of the Steering Committee of the International Conference on<BR/>the Former Yugoslavia in order to arrive at a speedy settlement of the difference”45). The<BR/>reason for imposing these conditions was given in the preamble of SC Res. 817(1993) in<BR/>which the Security Council, after affi rming that the applicant state fulfi lls the conditions<BR/>of Article 4, observes that “a difference has arisen over the name of the State, which<BR/>needs to be resolved in the interest of the maintenance of peaceful and good-neighborly<BR/>relations in the region”.46 This observation of the Security Council, which has generated<BR/>the imposition of the mentioned additional conditions for the Macedonian admission<BR/>to the UN membership, was apparently based on the Greek allegation that the name of<BR/>the applicant “implies territorial claims” against Greece.47 Without examining the legal<BR/>basis of the Greek allegation (see later for details on this aspect), the Security Council,<BR/>in accordance with its responsibility for the maintenance of world peace and security<BR/>provided for in Article 24 of the Charter, has used the above political consideration as<BR/>a suffi cient basis for imposing the additional conditions on Macedonia for its admission<BR/>to UN membership. We have already seen that this is not in accordance with the GA<BR/>Resolution 197(III, A) and the Court’s interpretation of Article 4(1). However, there are<BR/>other, and perhaps even more important, legal implications of the imposed additional<BR/>conditions. They are related to the inherent right of states to determine their own legal<BR/>identity, to the principles of sovereign equality of states48 and the inviolability of their<BR/>legal personality49 and to the legal status (including the representation) of the member<BR/>states.<BR/>By imposing the conditions on Macedonia regarding its name, the Security Council<BR/>and the General Assembly have essentially denied the right of Macedonia to choose its<BR/>own name. The inherent right of a state to have a name can be derived from the necessity<BR/>44 Supra note 1 and note 2.<BR/>45 Supra note 2, para 1.<BR/>46 Supra note 2, preamble.<BR/>47 See UN SCOR, 48th Sess., Supp. Apr., May, June, at 36, UN Doc. S/25543 (1993).<BR/>48 UN Charter, Art. 2 (1).<BR/>49 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among<BR/>States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.<BR/>35 Romanian Journal of Political Science<BR/>that a juridical personality must have a legal identity. In the absence of such an identity,<BR/>the juridical person, such as a state, could - to a considerable degree, or even completely<BR/>- loose its capacity to interact with other such juridical persons (conclude agreements,<BR/>etc) and independently enter into and conduct its external relations. The name of a state<BR/>is, therefore, an essential element of its juridical personality and, consequently, of its<BR/>statehood. The principles of sovereign equality of states and the inviolability of their<BR/>juridical personality lead to the conclusion that the choice of a name is a basic, inherent<BR/>right of the state. This right is not alienable, divisible or transferable, and it is a part<BR/>of the right to “self-determination” (determination of one’s own legal identity), i.e.<BR/>it belongs to the domain of jus cogens. External interference with this basic right is<BR/>inadmissible. If this were not true, i.e. if an external factor is allowed to take part in the<BR/>determination of the name of a state, under the assumption that the subject state has<BR/>at least a non-vanishing infl uence on this determination, it can easily be imagined that<BR/>the process of determination of the name of that state (e.g. via negotiations) may never<BR/>end. The state may never acquire its name, which would create an extraordinary political<BR/>and legal absurd on the international arena. It also goes without saying, that if such<BR/>external interference with the choice of name of a state would be allowed, even through a<BR/>negotiation process, it might easily become a legally endorsed mechanism for interference<BR/>in the internal and external affairs of the state, i.e. a mechanism for degradation of its<BR/>political independence. Such effects of an external interference with the right of a state to<BR/>choose its own name are very far from the accepted legal standards of international law.<BR/>The extreme form of the external interference with the choice of name of a state would<BR/>be the straight imposition of the name by an external (e.g. international) authority, which<BR/>would simply mean a straight denial of the right of states to choose their own names. It<BR/>is easy to foresee that this would lead to either drastic changes of the fundamentals of<BR/>presently practiced international law, or to a legal chaos. From these reasons, the choice<BR/>by a state of its own name must be considered as an inherent right of the state which<BR/>belongs stricto sensu to its domestic jurisdiction. In exercising this right, the states have,<BR/>therefore, a complete legal freedom.<BR/>The denial by the UN political bodies of the inherent right of Macedonia to choose its<BR/>name, implied by the additional conditions imposed for its admission to UN membership,<BR/>is, therefore, in violation of Article 2 (paragraphs 1 and 7) of the Charter. The respect of<BR/>the principles embedded in this article are equally applicable to the Organization as is to<BR/>its members (e.g. Article 2(7) explicitly forbids the Organization to intervene in matters<BR/>which are essentially within the domestic jurisdiction of the states), and their violation by<BR/>the Organization directly involves its legal responsibility.<BR/>The violation of Article 2(1) of the Charter and of the principle of inviolability of the<BR/>legal personality of states in the process of admission of Macedonia to UN membership<BR/>has immediate consequences on its legal status within the United Nations as a member.<BR/>Regarding other UN member states, Macedonia is obliged to bear within the UN system<BR/>an imposed, provisional name (reference) and to continue to negotiate with Greece<BR/>36 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>over its name. These additional obligations of Macedonia as a UN member distinguish<BR/>its position from that of the other UN members and defi ne a discriminatory status.<BR/>Membership, as a legal status, contains a standard set of rights and duties, which are equal<BR/>for all members of the Organizations (“sovereign equality of the Members”, Article 2(1))<BR/>and derogation or reduction of these membership rights and duties for particular states<BR/>is inadmissible, particularly in areas which are related to, or involve, the legal personality<BR/>of member states. It follows that the additional obligations imposed on Macedonia as a<BR/>UN member are again in violation of Article 2(1) of the Charter.<BR/>The discriminatory status of Macedonia as a UN member manifests itself in a<BR/>particularly clear manner in the area of representation. In all acts of representation<BR/>within the UN system, and in the fi eld of UN relations with other international subjects,<BR/>the provisional, and not the constitutional, name of Macedonia is to be used. This is<BR/>in violation with the right of states to non-discrimination in their representation in the<BR/>organizations of universal character (i.e. the UN family of organizations) expressed in an<BR/>unambiguous way in Article 83 of the Vienna convention on representation of states.50<BR/>That article of the Convention provides that “[i]n the application of the provisions of<BR/>the present Convention no discrimination shall be made as between states”.51 The right<BR/>to equal representation of states in their relations with the organizations of universal<BR/>character is only a derivative of the principles of sovereign equality of the states within<BR/>the Organization and inviolability of their juridical personality. The representation on a<BR/>non-discriminatory basis, however, has a particular signifi cance in the exercise of the legal<BR/>personality of states in their relations with other states or organizations since it involves<BR/>in a most direct and explicit way the legal identity of the states.<BR/>There is another viewpoint from which the legal status of Macedonia in the United<BR/>Nations could be looked at. It can be questioned whether a state admitted to UN<BR/>membership under conditions (or obligations), which extend in time with no specifi ed<BR/>limit, and which degrade its legal personality, can be considered as a full member of the<BR/>Organization (in the sense of the principle of sovereign equality of the members), despite<BR/>the fact that the state possess all other rights (and duties) provided by the membership<BR/>status? Or, can such a state be considered rather as, de facto, conditionally admitted to<BR/>the UN membership? Suppose that the negotiating process may extend indefi nitely. What<BR/>would be the legal status of such a member carrying out a permanent obligation? Should<BR/>it be expelled from the UN for not complying in an effi cient way with the obligation?<BR/>Should the other negotiating party also be expelled from the Organization for the same<BR/>reason (assuming that in the negotiations the parties have equal negotiating status)? But,<BR/>expelling the state from UN membership for failing to fulfi ll the obligation imposed by<BR/>the act of its admission would only prove that the state had been conditionally admitted<BR/>to UN membership and that it had a legal status of a conditional member of the United<BR/>50 Vienna Convention on the Representation of States in their Relations with International Organizations<BR/>of a Universal Character, UN Doc. A/CONF. 67/16 (March 14, 1975). [See also 69 AJIL (1975) 730].<BR/>51 Id. Art. 83.<BR/>37 Romanian Journal of Political Science<BR/>Nations (a status which is not provided for by the Charter). If expulsion from membership<BR/>is not affected, to avoid the conclusion that the membership status of the state was of<BR/>conditional nature, then the Organization accepts to tolerate a permanent factual noncompliance<BR/>of one of its members with an obligation. It may also be possible that the<BR/>obstruction of the “settlement of the dispute” by negotiations is caused not by the party<BR/>carrying the admission obligation, but by the other negotiating party. The fulfi llment<BR/>of the imposed obligation could, thus, depend not solely on the good will of the party<BR/>carrying the obligation, but also on the other party, i.e. on a factor which is outside of<BR/>its control. This introduces another component in the legal status of Macedonia in the<BR/>UN membership which is related to its independence in carrying out its membership<BR/>obligations.<BR/>There is still another possible way to look at the legal status of Macedonia as a UN<BR/>member. By denial of the right of the state to free choice of its name, and by imposing to<BR/>it a provisional name for use within the UN system (i.e. as an attribute to its membership),<BR/>the UN organization has essentially suspended the legal identity of one of its members<BR/>at the moment and by the act of its admission to membership.52 The suspension of the<BR/>legal identity of a member state by the act of admission defi nes a legal status for that state<BR/>within the UN characterized by a derogated legal personality and reduced (contractual)<BR/>capacity for conducting its international relations both within and outside the UN system.<BR/>This specifi c status of Macedonia as a UN member is clearly different from that of all<BR/>other member states and is in violation with Article 2(1) of the Charter.<BR/>All the above contradictions and inconsistencies in the legal status of Macedonia in<BR/>the UN membership have their origin in the violation of the Articles 4(1) and 2(7) of<BR/>the Charter by the resolutions of Security Council and the General Assembly related to,<BR/>respectively, the recommendation for and effecting of the admission of Macedonia to<BR/>UN membership. We shall now reveal the source of these violations.<BR/>As indicated earlier, the imposition of additional conditions in the Security Council<BR/>Resolution 817 recommending Macedonia for admission to UN membership was based<BR/>on concerns regarding “the maintenance of peaceful and good-neighborly relations in the<BR/>region”,53 triggered by the Greek allegation that the applicant’s name “implies territorial<BR/>claims”54 against Greece. Greece also advanced claims that the right of use of the name<BR/>“Macedonia” belongs, for historical reasons, only to Greece. There is, however, no legal<BR/>basis for linking the conditions for admission of a state to UN membership, as specifi ed<BR/>explicitly in Article 4(1) of the Charter, with allegations based on assumptions regarding<BR/>possible future (political) developments. Indeed, based on the principle of separating<BR/>domestic and international jurisdiction, the name of the state, which is a subject of<BR/>52 In both SC Res. 817 (1993) and GA Res. 47/225 (1993) the name of applicant is not mentioned but<BR/>the applicant is referred to as the State whose application is contained in document S/25147 (in the SC<BR/>resolution), or in document A/47/876 - S/25147 (in the GA resolution). See also supra note 3.<BR/>53 Supra note 2, preamble.<BR/>54 Supra note 47.<BR/>38 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>domestic jurisdiction, does not create international legal rights for the state that adopts<BR/>the name, nor does it impose legal obligations on other states, which would be a negation<BR/>of the basic idea and purposes of international law. Clearly, the name, per se, does not<BR/>have an impact on the territorial rights of states.55 Furthermore, from the inherent right<BR/>of a state to determine its legal identity, and from the principle that all states are juridical<BR/>equal, it follows that all states have an equal legal freedom in the choice of their names.<BR/>For this reason, the Greek claim that Greece has an exclusive right to the use of the name<BR/>“Macedonia” has “no basis in the international law and practice”.56 The Greek opposition<BR/>to the admission of Macedonia to UN membership under its constitutional name is<BR/>not only without legal basis, but it is also in violation with the international law when<BR/>interfering in matters which are essentially within domestic jurisdiction of Macedonia.57<BR/>Thus, by ignoring the principles of separating domestic and international jurisdictions in<BR/>the case of Macedonian admission to UN membership, the Security Council has opened<BR/>the door for violation of several articles of the UN Charter and for creation of an unusual<BR/>membership legal status for one of the UN members, not instituted by the Charter.<BR/>5. Legal Responsibility of the UN Organization and Possible Modes of Redress<BR/>In the preceding two sections of this study we have provided a number of arguments<BR/>which show in a clear way that the inclusion of the two additional conditions in the SC<BR/>Resolution 817 (1993) and GA Resolution 47/225(1993), related to the admission of<BR/>Macedonia to UN membership, violates the provisions of Articles 4(1), 2(1) and 2(7)<BR/>of the Charter and constitutes an ultra vires act of these organs. Since the admission to<BR/>membership, effected by a decision of the General Assembly, expresses the legal capacity<BR/>of the UN Organization to admit a state to membership, and since a state also has a legal<BR/>capacity to become a member of the Organization, it follows that the act of admission<BR/>engages the legal personalities of both the Organization and the applicant state, and that<BR/>the admission is an act of the Organization.58<BR/>As argued in Section 3 above, the responsibility of the Organization related to the<BR/>unlawful admission of Macedonia to UN membership derives from the right of the<BR/>applicant to admission when it fulfi lls the prescribed criteria laid down in Article 4(1) of<BR/>55 The EC Arbitration Commission on Former Yugoslavia, when considering the question of recognition<BR/>of Macedonia by the European Community, in its Opinion No. 6 [see 31 ILM (1992) 1507, 1511] has not<BR/>linked the name of the country to the Greek territorial rights.<BR/>56 L. Henkin et al., International Law: Cases and Materials (3rd edn., 1993) 253.<BR/>57 Supra note 49, at 123.<BR/>58 The ICJ advisory opinion given in the Certain Expenses case (supra note 19) affi rms that, irrespectively<BR/>of the distribution of powers among the organs of the UN organization, the acts of these organs with<BR/>respect to a third party represent acts of the Organization. The decisions of the General Assembly made<BR/>in accordance with Art. 18(2) of the Charter, including the decisions on admission to membership, have a<BR/>binding character.<BR/>39 Romanian Journal of Political Science<BR/>the Charter, and the duty of the Organization to admit such applicant to membership,<BR/>following from the “openness” of the Organization and its mission of universality.59 In<BR/>this context, the provisions contained in Article 4(1) should be interpreted as a legal norm<BR/>of an international treaty which governs the admission to UN membership.60<BR/>Observance of this legal norm is compulsory for the Organization as it is for the<BR/>applicant state. The violation of Article 4(1) in the process of admission of Macedonia<BR/>to UN membership constitutes, therefore, a breach of the Charter and the constitutionally<BR/>guaranteed right of the applicant by the Organization. The specifi c content of the<BR/>violation of Article 4(1) is the extension of the admission criteria by the UN political<BR/>organs beyond those enumerated exhaustively in that article, i.e. an inappropriate and<BR/>politically motivated interpretation of Article 4(1), contradicting the interpretation of the<BR/>article given by the International Court of Justice in the Admission case and accepted<BR/>(in 1948) by the General Assembly. In this sense, the breach of Article 4(1) of the<BR/>Charter by the Organization in the case of Macedonian admission to UN membership is<BR/>similar to the IMCO case61, discussed in Section 2, in which the breach of Article 28 of<BR/>the IMCO Convention by the Assembly of IMCO was committed similarly because of<BR/>an inappropriate interpretation of the provisions of that article (resulting in additional<BR/>criteria for election in the IMCO Maritime Safety Committee membership).<BR/>As argued in Section 4, the determination of the legal identity of a state is an inherent<BR/>right of that state, falling strictly within its domestic jurisdiction. This right, being strongly<BR/>correlated with the right to self-determination, belongs to the domain of jus cogens. On<BR/>the other hand, the legal identity is an essential element of the legal personality of a state,<BR/>the inviolability of which has again character of a jus cogens norm. The denial of the<BR/>right of a state to determine its own name is, therefore, in violation with the norms of<BR/>jus cogens, refl ected in the provisions of Articles 1(2), 2(1) and 2(7) of the Charter and<BR/>in the Declaration on Principles of International Law.62 The Organization, as any other<BR/>subject of international law, has a duty to respect these norms. Articles 2(7) specifi cally<BR/>and expressly limits the powers of the Organization over matters from the strict internal<BR/>jurisdiction of the states. The breach of this article in the case of Macedonian admission<BR/>to UN membership, by interfering in the inherent right of this state to choose its own<BR/>name, is certainly an ultra vires act of the Organization. The Organization bears a legal<BR/>responsibility for this unlawful act. Since the basic principles embodied in the Charter<BR/>are mutually interrelated and consistent with each other, breach of one principle (or legal<BR/>59 The correlation between the rights of a state, fulfi lling the conditions laid down in Art. 4(1), to admission<BR/>to UN membership and the duty of the Organization to admit such a state to membership was<BR/>elaborated in detail in the ICJ advisory opinion given in the Admission case (supra note 5). Particularly<BR/>clear form of this correlation was given in the concurring individual opinion of Judge Alvarez (Ibid., at<BR/>71).<BR/>60 This interpretation of Art. 4(1) was given by the ICJ in the Admission case (supra note 5, at 62) and was<BR/>accepted by the General Assembly (see supra note 6).<BR/>61 Supra note 18.<BR/>62 Supra note 49.<BR/>40 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>norm) leads, usually, to violation of other principles (or norms). Thus, the violation of<BR/>Article 2(7) leads also to violation of the principle enshrined in Article 2(1), as generalized<BR/>by the Declaration on Principles of International Law (“sovereign equality of states”63),<BR/>and vice versa. Furthermore, the violation of Articles 4(1) and 2(7) during the process<BR/>of admission leads to a discriminatory legal status of Macedonia as a UN member,<BR/>i.e. to violation of Article 2(1) of the Charter. (Indeed, ex injuria jus non oritur). As<BR/>we have argued in the preceding section, the breach of this article results effectively in<BR/>suspension of the legal identity of the member state, infl icting thus a grave damage on<BR/>its legal personality (e.g. by reducing its contractual capacity, its capacities in the domains<BR/>of legation and representation, etc), and on its external political and economic relations.<BR/>The responsibility of the Organization for violating Article 2(1) derives from its duty to<BR/>strictly observe this treaty provision (principle of the Organization), and from its mission<BR/>in promoting the legal justice and the rule of international law.64<BR/>The violations of Charter provisions contained in Articles 4(1), 2(1) and 2(7) may<BR/>each serve as a suffi cient legal basis (ultra vires acts) for requesting a judicial redress,<BR/>i.e. for removal of the conditions imposed on Macedonia during its admission to UN<BR/>membership and the resulting discriminatory legal status as a UN member. On the<BR/>substantive level, however, they are all closely interrelated (as argued above), since the<BR/>violation of Articles 2(1) and 2(7) underlines the violation of Article 4(1). On the other<BR/>hand, the breach of Article 4(1) (which implies the violations of Articles 2(1) and 2(7))<BR/>appears to be the source generating the problems related to the specifi c legal status of<BR/>Macedonia in the UN membership. Further, the breach of Article 4(1) appears to be<BR/>most obvious, since the admission of Macedonia to UN membership has not followed (in<BR/>its substantive part) the standard admission procedure. Moreover, this breach is in direct<BR/>discord with the General Assembly resolution 197 (III, A) regarding the interpretation of<BR/>Article 4(1) given by the International Court of Justice in the Admission case.65<BR/>As a mechanism for judicial redress of legal consequences generated by the violation<BR/>of Article 4(1) in General Assembly resolution 47/225 (1993) and Security Council<BR/>resolution 817 (1993), the advisory jurisdiction of International Court of Justice appears<BR/>to be the most appropriate in this case. The question of legality of these resolutions in<BR/>their parts related to the imposition of additional conditions on Macedonia regarding its<BR/>name for its admission in UN membership (i.e. their compatibility with the provisions<BR/>of Article 4(1) of the Charter) could be put before the Court by the General Assembly<BR/>on request by Macedonia (possibly jointly with a group of Member States that have<BR/>already recognized Macedonia under its constitutional name). Since this question is of<BR/>purely legal nature, the General Assembly may request for it an advisory opinion from<BR/>the Court (Article 96(1) of the Charter). The General Assembly cannot obstruct such<BR/>a request for an advisory opinion of being put before the Court because the requested<BR/>63 Ibid., at 122.<BR/>64 UN Charter, preamble.<BR/>65 Supra note 5.<BR/>41 Romanian Journal of Political Science<BR/>opinion is related to the legality of its own act. Such an obstruction (based on whatever<BR/>reasons) would essentially mean that the General Assembly, as political organ, is imposing<BR/>its own response to the question regarding the legality of its own act, or, imposing its<BR/>own judgment in a case in which it is itself a “party” (representing the Organization).66<BR/>This would be incompatible with the basic legal principles of juridical equality and bona<BR/>fi de, and with the mission and the duty of the UN Organization regarding the respect<BR/>of international law.67 Moreover, the earlier discussed IMCO case68 provides an example<BR/>in which the Organization has not obstructed the request for a Court’s advisory opinion<BR/>regarding the compatibility of a decision of IMCO plenary organ with the provisions of<BR/>its constitutional document. On the other hand, since the question regarding the legality<BR/>of imposing additional conditions on Macedonia for its admission to UN membership<BR/>is essentially a special case of the more general question (of the same character) already<BR/>considered by the Court in the Admission case69, there cannot be any uncertainty about<BR/>the Court’s competence for its consideration. For the same reason, and from the<BR/>obvious incompatibility of the additional conditions for Macedonian admission to UN<BR/>membership with the exhaustive character of the conditions set forth in Article 4(1) of<BR/>the Charter, the Court’s advisory opinion in this case cannot be different from its opinion<BR/>already given in the Admission case. Similarly, the position of the General Assembly<BR/>with respect to the Court’s opinion in the Macedonian case cannot be different from its<BR/>position70 taken with respect to the Court’s opinion in the Admission case. In fact, the<BR/>Macedonian case is only a specifi c example of the general issue considered by the Court<BR/>in the Admission case, created by the non-observance (or neglect) of already adopted<BR/>Court’s interpretation of Article 4(1) of the Charter.71<BR/>The mode of redress via the advisory jurisdiction of the Court includes also the more<BR/>subtle problem of the legal consequences of legally defective GA resolution 47/225<BR/>(1993). Apart from its preamble (referring to the recommendation of the Security<BR/>Council for admitting the applicant to UN membership with additional conditions and to<BR/>the application of the candidate), the GA resolution 47/225 (1993) contains a decision<BR/>which includes two parts: (a) to admit the applicant State to membership in the United<BR/>Nations, and (b) “this State being provisionally referred to for all purposes within the<BR/>United Nations as “the former Yugoslav Republic of Macedonia” pending settlement of<BR/>66 As we have argued earlier, in the act of admission of a state to UN membership the legal personalities<BR/>of both the Organization and the applicant state are involved.<BR/>67 Supra note 64.<BR/>68 Supra note 20.<BR/>69 The question for which an advisory opinion of the Court was requested by the General Assembly<BR/>had the form: “[i]s a Member of the United Nations which is called upon, in virtue of Article 4 of the<BR/>Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the<BR/>admission of a State to membership in the United Nations, juridical entitled to make its consent to the<BR/>admission dependent on conditions not expressly provided by paragraph 1 of the said Article?” (See GA<BR/>Res. 113(II), 14 November 1947).<BR/>70 Supra note 6.<BR/>71 Ibid.<BR/>42 Responsibility of the United Nations for Macedonia`s Accession to the UN<BR/>the difference that has arisen over the name of the State”.72 Part (a) of the GA resolution<BR/>refl ects the assessment of Security Council that “the applicant fulfi lls the criteria for<BR/>membership laid down in Article 4 of the Charter73 and follows the Security Council<BR/>recommendation for admission of the applicant state to UN membership. Part (b) of<BR/>the GA resolution contains the imposed additional conditions related to the name of the<BR/>applicant (and future UN member) without the acceptance of which part (a) could not<BR/>have been affected. Only part (b) of the GA resolution is ultra vires and only this part<BR/>can be considered as void. From the requirement of legality, the unlawful part (b) of the<BR/>GA resolution should be considered as void ab initio. However, practical consideration<BR/>(within the General Assembly, after the favorable Court’s advisory opinion is received<BR/>and presumably adopted) may render the determination that part (b) of the resolution is<BR/>void ex nunc.74 In either case, according to the principle of severability75, the invalidation<BR/>of part (b) of the resolution should not affect the validity of part (a). Obviously, the<BR/>invalidation of part (b) of GA Res. 47/225 (1993) can be done by a new GA resolution,<BR/>which would also affi rm the use of constitutional name of Macedonia within the UN<BR/>system.<BR/>Another basis for a judicial redress in the Macedonian case via the advisory jurisdiction<BR/>of International Court of Justice could be based on the violation of Article 2(1) of the<BR/>Charter in GA Res. 47/225 (1993) by which the legal personality of the state is severely<BR/>derogated (through suspension of its legal identity and imposing a discriminatory<BR/>membership status). The question of derogation of legal personality of Macedonia by<BR/>this GA resolution, in the context of Article 2(1), has an obvious legal character and<BR/>is, therefore, a legitimate subject for the Court’s advisory jurisdiction. Since some of<BR/>the basic principles of international law are involved in the subject (related, e.g., to the<BR/>inherent rights of states, inviolability of legal personality, equality of states, etc), the Court<BR/>cannot formulate its opinion in a manner inconsistent with those principles. Nor could<BR/>the General Assembly ignore the Court’s opinion based on such principles.<BR/>6. Summary<BR/>We have presented a detailed analysis of the legal aspects of SC Res. 817 (1993) and GA<BR/>Res. 47/225 (1993) which are related to the admission of Macedonia to UN membership.<BR/>It has been demonstrated that the additional conditions imposed on Macedonia for its<BR/>72 Supra note 1. The formulation of part (b) of GA Res. 47/225 (1993) is identical with the formulation<BR/>given in the recommendation of the Security Council resolution SC Res. 817 (1993). The SC resolution,<BR/>however, somewhat expands on the character of the “difference” and on its settlement by negotiations<BR/>(see supra note 45).<BR/>73 Supra note 2, preamble.<BR/>74 Such a determination was given, for instance, by the Assembly of IMCO when accepting and implementing<BR/>the Court”s advisory opinion (see supra note 21).<BR/>75 Supra note 9, at 120.<BR/>43 Romanian Journal of Political Science<BR/>admission to the United Nations constitute a clear violation of Articles 4(1), 2(1) and 2(7)<BR/>of the Charter, and defi ne a discriminatory legal status of the state as a member (again<BR/>in violation of Article 2(1)). The responsibility of the United Nations Organization for<BR/>violation of Charter’s provisions derives from the duty of the Organization to respect the<BR/>basic rights of the states (either as applicants to UN membership, or as UN members),<BR/>which are protected by the principles of international law enshrined in the mentioned<BR/>articles of the Charter. The character of these violations is of the ultra vires type with<BR/>respect to the legal norms of the Charter as a multilateral treaty. The violations of<BR/>Articles 4(1), 2(1) and 2(7) involve the legal personalities of both the Organization and<BR/>the Macedonian state. This provides a basis for instituting a judicial redress of the legal<BR/>consequences resulting from the breach of constitutional provisions. We have discussed<BR/>two possible pathways for such judicial redress, based on the violation of Article 4(1)<BR/>and Article 2(1), respectively, and on the use of the advisory jurisdiction of International<BR/>Court of Justice.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21440967.post-1172130185516438182007-02-22T08:43:00.000+01:002007-02-22T08:43:00.000+01:00Enjoyed a lot! »Enjoyed a lot! <A HREF="http://www.humor-video-security-dog-and-cat.info/school-security-video.html" REL="nofollow">»</A>Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21440967.post-1144158668954307782006-04-04T15:51:00.000+02:002006-04-04T15:51:00.000+02:00Да го следеа сите Кант и неговата лична интерпрета...Да го следеа сите Кант и неговата лична интерпретација на категоричкиот императив, човештвото досега ќе изумреше.Anonymoushttps://www.blogger.com/profile/15632666816308875370noreply@blogger.comtag:blogger.com,1999:blog-21440967.post-1144144249829519732006-04-04T11:50:00.000+02:002006-04-04T11:50:00.000+02:00ne ne coito, ergen sum..ne ne <BR/>coito, ergen sum..Anonymousnoreply@blogger.com