Greece’s Ratification Procedure of the Final Settlement Agreement Between Greece and FYROM

Introduction

On June 17, 2018, the foreign ministers of Greece and the Former Yugoslav Republic of Macedonia (FYROM) signed the "Final Agreement for the settlement of differences as described in the United Nations Security Council Resolutions 817 (1993)[1] and 845 (1993),[2] the Termination of the Interim Accord of 1995,[3] and the Establishment of a Strategic Partnership between the Parties" (Agreement).[4] In so doing, they resolved a long-running dispute by agreeing that FYROM's formal name shall be "Republic of North Macedonia" for all purposes and uses.[5] The Agreement, while hailed by the two governments as a landmark in the relations of their states, has already stirred a great deal of controversy among their citizens, who largely believe that this compromise is tantamount to a waiver, to the benefit of and potential abuse by the other side, of legal and historic exclusive rights to the use of the term "Macedonia" and its derivatives. 

As one of the constituent republics of former Yugoslavia, FYROM was formally named "Republic of Macedonia." Greece never strongly protested, given that it did not feel threatened by Yugoslavia. The name dispute arose in 1991, following FYROM's independence and attempt to join international organizations under the name used in its Constitution, "Republic of Macedonia." Since that time, Greece has opposed FYROM's name, fearing that it could give rise to irredentist claims by FYROM against Greece's territorial sovereignty and that it would facilitate bad-faith efforts to distort ancient Greek history, given that the term "Macedonia" historically identifies the geographical region of ancient Greek Macedonia, most of which nowadays is situated within Greek territory. Despite Greece's objections, FYROM has been recognized in the majority of its bilateral relations under its constitutional name, but has been unable to use it before the UN or to join other international organizations, such as NATO and the EU, where Greece has the ability to block its membership. "FYROM" is the acronym of the provisional name under which the new state was admitted to the United Nations in 1993.  

The 2018 Agreement attempts to end this decades-long dispute. However, there are numerous concerns regarding how several of its provisions will be interpreted or implemented once the Agreement enters into force upon completion of a complex ratification procedure described in Article 1(4). For example, there seems to be considerable disharmony in the terminology used to refer, on the one hand, to the name Republic of North Macedonia[6] and, on the other hand, to the nationality of its citizens, the name of its official language, and the adjectival descriptors of various expressions of its sovereignty, such as with regards to license plate and other country-related codes.[7] The potential for conflict, therefore, seems to remain, despite the Agreement's attempt to denote the parameters within which the terms "Macedonia" and "Macedonian" shall have distinctively different meaning, depending on whether they refer to Greece or to FYROM.[8]

The focus of this Insight, starting with a brief reference to certain relevant provisions of the Vienna Convention on the Law of Treaties 1969 (VCLT),[9] is on the potentially problematic verbiage of Articles 1(4)(f) and 20(2) on the manner in which Greece is expected to express its consent to be bound by the Agreement, leading to uncertainty surrounding the treaty's eventual entry into force under international law.

"Ratification" Under International Law and Domestic Law

The term "ratification" can indicate processes on either the international or domestic level. The interchangeable use of this term in the domestic and international contexts can cause confusion.[10]

In international law, ratification is one of the methods "whereby a State establishes on the international plane its consent to be bound by a treaty."[11] Should the negotiating states intend to subject a treaty to international ratification, the treaty will likely so provide. International ratification of bilateral treaties is accomplished simply by the exchange, between the contracting states, of "instruments of ratification,"[12] which are executed by the head of state, the head of government, the foreign minister, or other duly authorized person of the respective state.[13] Unless of high political significance, the exchange itself is usually non-ceremonial. However, the parties may agree to express consent through any other means, including ones of domestic nature.[14]    

The VCLT makes no reference to any domestic procedure when defining "ratification." However, such domestic procedures, typically of constitutional stature and most important in the domestic order of states, are frequently also referred to as "ratification" (domestic ratification for purposes of this commentary). Domestic ratification is an entirely internal procedure typically by the legislature which ultimately serves to incorporate a treaty into domestic law. Primarily, it acts as an authorization (not as a mandate) to the executive to bind his state internationally. Domestic ratification can evidence a state's consent to be bound by a treaty internationally, if so agreed,[15] and thus serve as an alternative to international ratification. This effect is obvious here for FYROM and may also be true for Greece if the latter expresses consent, or "ratifies," via domestic processes.[16]

The Agreement's Ratification Process

A state may choose not to express, within the four corners of a treaty, its consent to be bound by that treaty. Here, Article 1(4) of the Agreement states that "Upon signature . . . the Parties shall take the following steps . . . ." This does not create a treaty obligation to ratify per se; rather, it simply makes the described procedure the manner of choice for each state to ultimately express its consent to be bound. That is, it sets out the prerequisites for entry into force (ratification process). 

Article 20(2) states that the Agreement is "subject to ratification[17] according to the sequencing described in article 1(4)." Article 1(4)(a) through (e) describe FYROM's ratification process, including submitting the Agreement to its parliament.[18] It may hold a referendum.[19] It must then amend its constitution by the end of 2018.[20]

Article 1(4)(f) describes Greece's ratification process in curiously general verbiage: "Upon notification by the Second Party [FYROM] of the completion of the above-mentioned constitutional amendments and of all its internal legal procedures for the entry into force of this Agreement, the First Party [Greece] shall promptly ratify this Agreement." Unlike FYROM's ratification process, involving clearly described steps of domestic procedures, such clarity is absent with regards to the ratification expected of Greece. Is Greece to ratify internationally or domestically? And if domestic ratification is expected, what state organ is to be involved? The term "ratification" as used in Greek treaty conclusion practice typically refers to the international act of ratification. Similarly, when, in treaty text, reference is made to Greece's domestic procedures, this refers to completion of the prerequisites for expression of consent internationally, separate and apart from the domestic ratification process. Domestic procedures, in and of themselves, have not served as a means of expressing consent in previous Greek practice.[21]

According to declarations by the Greek government, Greece intends to submit the Agreement to its parliament for domestic ratification, which could have the effect of expressing consent to be bound internationally, as may have been contemplated in Article 20(2).[22]   

However, if Greece clearly intended to render parliamentary approval a prerequisite to the expression of its consent, it is unclear why it would not have indicated this in the text of the Agreement in unequivocal verbiage, particularly in light of the explicit description of FYROM's required process. Interestingly, Greece's lack of specificity in the Agreement could serve to force its hand to express its consent through any means possible. One could question whether this may have been intentional in light of the international pressure to reach an agreement. 

If the Greek parliament votes against the Agreement (not an unlikely scenario given the fragile majority of the Greek governmental coalition), Greece would still be expected to act in a manner consistent with the object and purpose of the Agreement until it "shall have made its intention clear not to become a party" to the Agreement.[23] The general verbiage of Article 1(4)(f) that Greece "shall ratify," without specifying the type and manner of ratification, could be read as requiring Greece to exhaust, in good faith, all available means of ratification under both international and domestic law before expressing, if at all, its intention not to become a party to the Agreement. Failing parliamentary ratification, pressure might be exercised on Greece, by those in the international community who are eager to see the dispute between these two states resolved once and for all, to ratify—whether internationally or domestically—through some other means. Notably, only certain types of treaties must be submitted to the Greek parliament.[24] In the past, Greek governments have used presidential decrees, or even ministerial resolutions, to incorporate treaties into domestic law,[25] thereby bypassing parliamentary involvement. 

Conclusion

The Agreement is one of the most controversial agreements ever signed by Greece. Most political parties have pledged to vote against it if and when it is submitted to the parliament. Considerable portions of the peoples in the two states are strongly opposed to the Agreement. The two governments, however, consider it a major step towards building stronger ties. 

Greece's choice for vagueness in the Agreement may have been intentional for reasons of expediency or flexibility; however, this could backfire, especially if the Greek government finds itself diplomatically pressured to express consent to be bound by any means possible, notwithstanding a likely "no" vote of its legislature. This could lead to domestic political instability, repeated elections, and increased distrust in the government, which could affect the recovering but still fragile Greek economy. Internationally, however, the ramifications could be even worse if it results in a reputation that Greece does not honor either its electorate's desires (if it decides to express consent to be bound by the Agreement against a vote of its parliament to the contrary), or its signature (if it backs out of the "ratification" procedure, honoring a parliamentary "no" vote). Failure to follow through on the Agreement will likely disappoint powerful allies, on whose continued support Greece still relies financially or otherwise. 

About the Author: Dimitrios Dimitrakos is a JSD Candidate in International Water Resources Law at the University of the Pacific McGeorge School of Law. He earned his LLB from the University of Athens, and his LLM (merit) in Public International Law from the University of London. He practices law in California.