Wednesday, December 07, 2011

Macedonia v. Greece

On EJIL:Talk!, Antonios Tzanakopoulos has a discussion of the ICJ's judgment in Macedonia v. Greece. I have very little to add to what he wrote, but I would like to point out one aspect of the case that he does not mention: Did Greece comply with its obligation not to "object" by abstaining, or was it supposed to vote in favour? Given that NATO requires unanimity for invitations to new members, the answer is quite obviously the latter, but I do love the lawyerly creativity of the Greeks involved here. It is a classic example of lawyers taking an unwinnable case and trying to put a non-frivolous spin on it:
69. The Respondent interprets the obligation “not to object” more narrowly. In its view, an objection requires a specific, negative act, such as casting a vote or exercising a veto against the Applicant’s admission to or membership in an organization or institution. An objection does not, under the Respondent’s interpretation, include abstention or the withholding of support in a consensus process. As a general matter, the Respondent argues that the phrase “not to object” should be interpreted narrowly because it imposes a limitation on a right to object that the Respondent would otherwise possess.
As Tzanakopoulos points out, the ICJ's answer to this point actually contains some interesting considerations regarding the weighing of duties against rights, but the original argument is fascinating in its creativity...

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