Access to the EU and justice denied-How Bulgaria’s actions against North Macedonia amount to abuse of the EU’s accession procedural rules

After several years of efforts to satisfy the requirements of the European Union for starting the membership negotiations, including a notable attempt towards resolution of the historical dispute regarding its very identity on the international front on account of Greece’s constant opposition these last decades until conclusion of the Prespa Agreement in 2018, North Macedonia finds its political destiny being held hostage by Bulgaria in an unprecedented move. Bulgaria’s arm-twisting tactics began in 2019 when it resorted to exerting crude pressure within the EU institutions on the basis of dubious and instrumentalised cultural and historical claims against North Macedonia.¹ As things stand, not only is this threatening to destabilise the whole region but is also complicating the relationship between the Western Balkans and the Union.² The present study will shed light on the main steps that have characterised the positive relationship of North Macedonia with the Union, in the context of the latter’s special relationship with the Western Balkans, and demonstrate how Bulgaria’s hostile stance against its neighbour is abusive under international law in the context of the EU enlargement. If the notorious political nature of EU enlargement procedures and applicable EU laws make it difficult for North Macedonia to legally oppose Bulgaria’s blackmailing, in particular due to the asymmetry existing in its relationship with Bulgaria who enjoys the privilege of its EU membership, this paper will explore some possible paths which could strengthen its access to means for re-establishing elementary considerations of justice in this process. Current negotiations between both countries should not allow the aggressive and unfair stance of Bulgaria against its smaller neighbour to go unnoticed, as its instrumentalisation of EU law and cultural-identarian offensive arguments are negatively impacting the rule of law in Europe.

As the following facts will clearly show, North Macedonia’s willingness to abide to the EU requirements for its candidacy to the EU membership have indeed been constantly well-received by key EU institutions and most EU member States. Greece’s historical opposition to North Macedonia’s very existence in the international political sphere came to an end with conclusion of the Prespa Agreement in 2018 between both the countries, thereby further augmenting North Macedonia’s chances of joining the European Union. Most of the recent obstacles on the path of North Macedonia’s candidacy to the EU accession have resulted since 2019 from few member States’ political moves, including in a first time by France (with the backing of Denmark and the Netherlands) and since 2020 by Bulgaria’s obsession on reviving menacing historical and cultural nationalist and identity tensions. In particular, Bulgaria’s ‘vetoing’ in key EU meetings has not only resulted in a situation seriously prejudicing North Macedonia’s chances to finally enter in official negotiation talks with the EU regarding its candidacy to become a member State, but is also jeopardizing EU’s important relationship with the West Balkans. The unfairness with which North Macedonia’s recognised efforts and reforms have been received recently by few EU member States poses a credible risk to the stability of EU’s relationship with the West Balkans. The following facts will retrace some of the main events that took place in the recent years concerning North Macedonia’s candidacy for becoming a member State of the Union.

I. Factual background of North Macedonia’s political relationship with the EU, Greece and Bulgaria

North Macedonia signed the Stabilisation and Association Agreement (“SAA”) with the EU in 2001, which sets the framework for relations with the EU, including political, economic and technical dialogue.³ On 16 December 2005, the European Council decided to grant North Macedonia the status of candidate for EU membership.⁴ A political agreement was reached in Skopje in July 2015, whereby North Macedonia’s four main political parties agreed to the development and implementation of an Euro-Atlantic integration agenda.⁵

On 4 December 2018, following the June 2018 EU Council’s meeting, the Stabilisation and Association Council adopted the decision on the passage of North Macedonia to stage II of the “SAA” which is the legal framework applicable to Western Balkan states willing to join the Union,⁶ based on the Commission’s 2009 proposal.⁷

After several decades of opposition from Greece against Macedonia’s very name and existence, the two countries made the historical step to conclude the Prespa Agreement on 12 June 2018 for settling this dispute, which among others, agreed that Macedonia could use the name of North Macedonia.⁸ On 28 June 2018, the European Council stated in its Conclusions, after noting that “[c]o-operation with, and support for, partners in the Western Balkans region remain key to exchange information on migratory flows, prevent illegal migration, increase the capacities for border protection and improve return and readmission procedures,”⁹ and that it:

“strongly welcomes and supports the agreement reached between the former Yugoslav Republic of Macedonia and Greece on the name issue. This, together with the agreement between Bulgaria and the former Yugoslav Republic of Macedonia on the Treaty of Friendship, Good Neighbourliness, and Cooperation, sets a strong example for others in the region to strengthen good neighbourly relations.”¹⁰

The Prespa Agreement concluded between Greece and North Macedonia entered into force in February 2019.¹¹ On 29 May 2019, the Commission transmitted to the relevant competent EU institutions, the North Macedonia 2019 Report.¹² In this 2019 North Macedonia report, the EU Commission observed that regarding regional cooperation, North Macedonia maintained good relations with other enlargement countries and participated actively in regional initiatives. Historical steps were reported to have taken place for improving good neighbourly relations, including the entry into force of the Prespa agreement and its implementation, thereby putting an end to one of the oldest disputes in the region. The Commission looks forward to the continued implementation of the bilateral treaty with Bulgaria.”¹³ Furthermore, the Commission’s Staff working document stated in its section focusing on good neighbourly relations and regional cooperation that North Macedonia’s government “has taken a very positive approach to regional cooperation and good neighbourly relations” but also that the “country remained constructively committed to bilateral relations with other enlargement countries and neighbouring EU Member States.”¹⁴ With respect to North Macedonia’s bilateral relation with Bulgaria, the Commission’s Staff further noted that:

“The implementation of the Treaty of Friendship, Good Neighbourliness and Cooperation with Bulgaria is ongoing, with several meetings of the Joint Commission on Historical and Educational Matters taking place in a constructive atmosphere. The Law ratifying the agreement with the government of Bulgaria on cooperation in case of catastrophes was adopted in May 2018. Prime Minister Zaev visited Sofia in February 2019. The joint intergovernmental commission on trade and economic cooperation held its first meeting in Skopje in March 2019, 10 years after it was set up. Bulgaria ratified the NATO accession protocol.”¹⁵

On 25 July 2019, the EU European Neighbourhood Policy and Enlargement Negotiations Commissioner Johannes Hahn declared that North Macedonia’s Government must implement reforms before that EU accession’s negotiations can start.¹⁶ On 3 October 2019, Presidents Tusk, Sassoli, Juncker and President-elect Von der Leyen affirmed in a Joint letter their clear and strong support for advancing the negotiations for North Macedonia’s accession to the EU:

“Our world is undergoing rapid changes. If the EU is to uphold its international role and protect its interests, taking a step towards integrating those European countries that have expressed an interest and have fulfilled the requirements for starting the accession process will help achieve this.” In this Joint letter, while nothing that “[t]here is no guarantee of success,” they observed that North Macedonia “did what we asked them to do” and that “[a]chieving that required a significant effort from their citizens, for whom the European perspective has been a great source of motivation and determination.”¹⁷

On 9 October 2019 the Bulgarian Government adopted a Framework position,¹⁸ confirmed by a declaration of its Assembly which proposed a long list of conditions to be implemented in the framework in order for Bulgaria to support the start of the European Union’s pre-accession negotiations with North Macedonia and Albania.¹⁹ These conditions referred to the accession generally and separately for the first and second intergovernmental conferences, as well as for the negotiating chapters 35 and 10 .Both documents comprised of claims which denied existence of the Macedonian language and are accompanied by other demands with an aim to perpetrate the Bulgarian narrative unilaterally.²⁰ These documents were followed by a Statement of the Bulgarian Government annexed to the Council of Europe conclusions of March 2020, a unilateral statement from this member state of the EU, which was eventually not upheld and adopted by the Council of the European Union²¹.

Subsequently, on 18 October 2019, France vetoed the opening of the negotiations talk for North Macedonia and Albania’s accession to the EU, joined politically by the Netherlands and Denmark. Those three countries led by France called for reforming first the Union from the inside and among others to reform rules of procedure within the Union²², before contemplating further steps regarding pending negotiation talks between the EU, Albania and North Maceconia. France’s ‘veto’ received a lot of criticisms from other European Member States,²³ given that, the “huge majority of member states supported “opening the access negotiations for both countries” according to Finland’s EU affairs minister Tytti Tuppurainen.²⁴ While some EU leaders talked about an ‘historical mistake” committed by France, the latter on the other hand insisted on the necessity to reform the procedure applicable to EU enlargement before opening EU accession negotiations.²⁵ France’s blocking resulted in the organisation of snap elections in North Macedonia. On 24 October 2019, the European Parliament adopted a resolution with 412 votes in favour, 136 against and 30 abstentions.²⁶ This Resolution expressed the European Parliament’s disappointment over the failure to agree on opening EU accession talks with Albania and North Macedonia at the EU summit on 17-18 October 2019.²⁷

Following the debate on the necessity to reform EU rules applicable to EU accession brought by France when it had blocked the opening of negotiation talks in November 2019, the European Commission published on 5 February 2020 a Communication titled “Enhancing the access process – A credible EU perspective for the Western Balkans.”²⁸ According to the Commission, this Communication “sets out the Commission’s concrete proposals for strengthening the whole accession process”, in particular to prepare Western Balkans to meet the requirements of membership relating to fundamental democratic, rule of law and economic reforms, as well as economic growth and social convergence.²⁹ The Communication also clearly states that “When partner countries meet the objective criteria and the established objective conditions, the Member States shall agree to move forward to the next stage of the process. All parties must abstain from misusing outstanding issues in the EU accession process.³⁰” On 25 March 2020, the Council of the European Union decided to “open accession negotiations with the Republic of Macedonia” in light of the “progress achieved on reforms and the fulfilment of the conditions set unanimously,” but this decision was subjected to endorsement by the European Council.³¹ The decision of the Council of the European Union was subsequently endorsed by members of the European Council.³²

On 1 July 2020, the European Commission published drafts for negotiating frameworks for Albania and North Macedonia, which would have only been made public once Member States would have adopted them.³³ After the failure to reach a consensus at the occasion of the European Council meeting on 17 November 2020, the German Minister for European Affairs Michael Roth stated, “all delegations expressed their support for a swift and successful conclusion with regard to the negotiating frameworks, with the exception of Bulgaria.”³⁴ On 18 November 2020, Bulgaria blocked the opening of North Macedonia’s accession talks on the basis of its historical and cultural claims against the latter.³⁵ On 8 December 2020, German State Secretary for European Affairs confirmed that there has been no agreement between the EU Member States on negotiating boxes for North Macedonia and Albania, nor on EU Council conclusions on the enlargement countries.³⁶ Before the EU Summit on EU’s enlargement, despite several discussions at the level of Member States’ ambassadors and an attempt at German mediation, Bulgaria was still blocking an agreement on the negotiating box with not only North Macedonia but also Albania, since some Member States believed that the two frameworks should go hand in hand.³⁷ On the same day, 24 MEPs from several political groups within the European Parliament signed a letter requesting the EU Council to approve the negotiating box for North Macedonia and asked to stop further delaying EU accession negotiations.³⁸ This statement stressed the importance of a resolution of the dispute opposing Bulgaria to North Macedonia, and called in particular on the former to approve the opening of the intergovernmental conference preferably in December 2020.³⁹ This statement also highlighted the patience and confidence of people from North Macedonia while insisting that “The Prespa Agreement with Greece and the Treaty on Friendship, Good Neighbourliness and Cooperation with Bulgaria were historic and their implementation remains crucial.”⁴⁰

The first Intergovernmental Conference was originally scheduled to take place before the end of the year 2020,⁴¹ but Bulgaria’s blocking attitude has resulted in the postponement of this key conference to 2021. The Portuguese Presidency of the Union has recently indicated its determination to “continue accession negotiations with the countries of the Western Balkans, notably with the approval of the negotiating box and the organisation of the first intergovernmental conferences with Albania and North Macedonia by the end of June.”⁴² Most recently, Bulgaria’s tone against North Macedonia has slightly softened, while both countries are engaged in negotiations which seem to be driven by Bulgaria’s revival of cultural and historical identical disputes with its neighbour.⁴³ Also, crucially, threats generated in the context of Bulgaria’s exaltation in 2020 are promised to remain real, given that it still cultivates a hard line with North Macedonia⁴⁴ and that deadlock lasting decades, as was previously the case with Greece, was recently mentioned by the Bulgarian side as a possibility⁴⁵. Besides the Portuguese Presidency of the Union, Germany is committed to remain active with this important dispute and is engaged in a process of mediation between the two countries together with Portugal. This is a clear sign of the importance of the situation both for the Western Balkans and the EU.

As we will see in the next part of this paper, several legal arguments on the basis of international law can be made to criticise the hostile strategy opted for by Bulgaria to blackmail North Macedonia at a crucial time of its history, by instrumentalising EU enlargement procedures and its membership to the Union for (mainly internal) political gains.

II. How Bulgaria’s blackmailing against North Macedonia is abusive under international law

Admittedly, each sovereign State’s vote cannot be limited in international law, especially within a unanimous procedural framework such as the one for officially opening negotiations to the EU accession for candidate countries like North Macedonia and Albania. From this viewpoint, it seems difficult to contest Bulgaria’s right to determine and pursue its own interests within the context of the European Union.

However, this post will show that Bulgaria’s stance cannot only be concerned with itself, especially not with mere views and feelings that parts of its current governmental team want to instrumentalise for internal political aims. Bulgaria’s constant and instrumentalized opposition to eventually allowing North Macedonia to reach its next step in the EU accession process takes place in an institutional and legal context which concerns the whole Union and its direct neighbourhood; not only Bulgaria.

Yet, so far it appears as if Bulgaria was given free rein to harm its neighbour’s political goal by abusing its rights and the complex procedures applicable to EU enlargement. Meanwhile, North Macedonia is unable to enjoy the regular course of its candidacy to the EU despite its constant efforts, which have been welcomed by most EU institutions and EU member States.

Bulgaria’s tactic damages not only European politics by opening the door to a further sliding of the Western Balkans into the orbit of other great powers,⁴⁶ but it also harms the very idea of rule of law at the European level. Bulgaria’s conduct seems to be based on a questionable cocktail of political, cultural and legal instrumentalization.⁴⁷ There is a likelihood of this situation leaving a lasting adverse impact on the peoples of North Macedonia and the region, if nothing is done to re-establish basic considerations of justice in the highly political process of the EU enlargement.

Bulgaria’s blackmailing is targeting the fate of North Macedonia in a critical moment by leveraging identarian and nationalist-cultural debates. By doing so without any real legal arguments in support, and without even articulating arguments vaguely relating to the EU accession process itself, Bulgaria is unmistakably acting in bad faith by misusing EU and international legal rules. Yet without judicial means of dispute resolution, these violations are unlikely to generate legal consequences at this stage.

Bulgaria’s strategy of intimidation and improper pressure takes full advantage of a structural inequality in its relationship with North Macedonia. North Macedonia could or should contemplate raising aspects of this “dispute” before an international court or body, especially because it has a treaty of amity in force with Bulgaria, which is blatantly violated by the latter’s offensive attitude against its neighbour. Yet, such a move is seemingly politically delicate at the moment, since this will most probably accentuate fears that the EU accession process in the case of North Macedonia would get stalled even longer. This is a clear manifestation of the successful blackmailing campaign that Bulgaria is running against its Macedonian neighbour, by taking full advantage of its relative privileged position as an EU member State to crudely exert pressure in view of purportedly internal political gains.⁴⁸

The current situation created by Bulgaria, is not operating in a vacuum: other states are also rallying along to hinder the way of North Macedonia’s possible accession to the Union. Before Bulgaria’s bid against its neighbour in the European institutions, France together with the Netherlands and Denmark disrupted this process for EU and internal political reasons. Also, letting another deadlock perdure after 30 years of constant opposition from Greece opposing North Macedonia’s very identity on the international level and right on the heels of the conclusion the Prespa Agreement, is a clear denial of justice. This post will touch upon four dimensions in which Bulgaria’s behaviour towards North Macedonia can nonetheless be seen as violating international law.

1. By de facto and arbitrarily vetoing North Macedonia’s bid to access the EU, Bulgaria is violating the bilateral “Treaty of Friendship” in force with its neighbour

On the 1^st August 2017, official representatives of Bulgaria and the Republic of North Macedonia had signed a Treaty of Friendship, Good neighbourliness, and Cooperation. This Treaty of Friendship had officially entered into force on 14 February 2018, with the exchange of the instruments of ratifications, according to its Article 13.⁴⁹ The European Parliament has denounced in its resolution 2019/2883(RSP) the repeated failure of the European Council to reach an agreement on the opening of negotiations for the accession of North Macedonia to the EU, especially when this country has achieved important progress in line with EU expectations.⁵⁰ In this regard, the European Parliament has referred in particular to the Prespa Agreement concluded with Greece and the aforementioned Treaty of Friendship.⁵¹ Also, despite hopes that this bilateral treaty concluded between Bulgaria and North Macedonia would demonstrate the determination of both sides to overcome bilateral issues and serve as an inspiration for the whole region,⁵² Bulgaria’s blackmailing campaign against its neighbour constitutes a blatant violation of the very core of this Treaty of Friendship as well as international obligations applicable to their bilateral relationship.

The bilateral treaty unambiguously obliges both states to develop comprehensive relations in pursuance with fundamental principles of international law and good neighbourliness (Art. 1);⁵³ to cooperate with the UN, the OSCE, the CoE and other international organisations and fora (Art. 2);⁵⁴ as well as to facilitate the development of the cooperation among Southeast European countries and strengthening understanding, peace and stability in the region (Art. 3).⁵⁵ To this effect, Art. 4 provides for an obligation to maintain contacts between the two countries.⁵⁶ Arts. 10 and 11 set for an obligation to advance cooperation among others in the legal consular areas, and to prevent themselves to “undertake, encourage or support activities aimed against the other Contracting Party, which are of hostile nature.”⁵⁷ Admittedly, Bulgaria has not called for any violent action against its neighbour. Yet, the diffusion of its claims at the international level for justifying its coercion campaign against North Macedonia can clearly be considered as part of a hostile propaganda aimed at harming the latter. Indeed, Art. 11(6) requires that States “undertake efficient measures to prevent ill-intentioned propaganda by institutions and agencies and shall discourage activities of private entities […] that may be detrimental to their relations.”⁵⁸

Furthermore, Art. 12 of that treaty established a Joint Intergovernmental Commission composed of the Minister of Foreign Affairs and senior officials from both countries, which meets at least once a year for “reviewing the effective implementation of this Treaty, to adopt measures to improve bilateral co-operation as well as to resolve issues arising during the implementation of the treaty.”⁵⁹ Instead of raising its concerns purportedly about North Macedonia’s identity and status, Bulgarian officials have preferred to directly pressure North Macedonia on the European scene with political and cultural claims. This could be interpreted as a sign of Bulgaria’s bad faith in its attempts to disrupt the admission of North Macedonia as an official EU candidate. Furthermore, Bulgaria’s bid to derail the accession process of its neighbour in the Union, does not only hinder cooperation but clearly harms North Macedonia’s core interests by disputing its very existence as a ‘proper’ State.

2. How Bulgaria’s attitude towards North Macedonia constitutes unreasonable and harmful bad faith violating international law

As emphasised above, Bulgaria’s claims are politically motivated and they have weaponised history and culture in order to exert pressure over its neighbour at a key moment of its history. Bulgaria’s attitude and actions towards North Macedonia amount to a form of blackmail in order to force the latter to modify key elements of its identity and culture, which in themselves can constitute violations of key international legal principles, especially the principles of self-determination and non-intervention principle into the internal affairs of other states. Here we focus on one general but fundamental principle of international law applicable to the current situation: the principle of good faith.

Good faith constitutes a core principle of international law, as enshrined in Art. 2(2) of the UN Charter,⁶⁰ and it is deeply connected to the principle of equality between States. One of the most prominent sources for the principle of good faith is the UNGA Declaration on Friendly Relations and Co-operation among States (2626(XXV)).⁶¹ Also, this principle applies to all international treaties validly concluded and entered into by contracting states, since Art. 26 of the VCLT clearly declares that every treaty in force must be performed in good faith.⁶² Thus, this principle applies to the bilateral treaty concluded between Bulgaria and North Macedonia. The ICJ in its Nuclear Tests Judgment (Australia v. France) clearly placed the principle of good faith at the core of international principles applicable to international obligations: “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith.”⁶³ Various other international legal authorities confirm the importance of this principle of international law, especially with respect to good neighbourliness.⁶⁴

Moreover, the good faith principle is “chiefly concerned with the way in which States conduct themselves in their relations with one another, encompassing general elements of ‘honesty, fairness and reasonableness’.”⁶⁵ The connection between good faith and reasonableness was clearly established in several ICJ judgements,⁶⁶ including in its Gabčíkovo-Nagymaros Project Case⁶⁷ and earlier on in its Military and Paramilitary Activities Case (Nicaragua v. The United States)⁶⁸.

The latter case is of particular importance since one of the subject-matters covered by the dispute concerned a bilateral treaty of friendship concluded between Nicaragua and the United States. In the latter case, the ICJ has stressed that under customary international law “[t]here must be a distinction, even in the case of a treaty of friendship, between the broad category of unfriendly acts, and the narrower category of acts tending to defeat the object and purpose of the Treaty.”⁶⁹ On that basis, the Court eventually determined that “there are certain activities of the United States which are such as to undermine the whole spirit of a bilateral agreement directed to sponsoring friendship between the two parties to it”,⁷⁰ by retaining violent actions which took place against Nicaragua but also economic pressure.⁷¹ This shows that under international law, a violation of a treaty validly concluded by acting in bad faith not only with its terms but also its very object and purpose, can be qualified as such, without necessarily consisting of military or violent actions.

This point is important to consider in light of the multiform pressures that Bulgaria is exerting against North Macedonia. By impeding North Macedonia’s way to the opening of official negotiations about its possible accession to the EU which also account for the latter’s serious political and economic interests, on the mere basis of political and cultural claims instead of legal claims, Bulgaria clearly violates the terms as well as the object and purpose of the treaty of friendship between them.

Bulgaria has not only behaved in bad faith towards North Macedonia in the EU context, but it has also acted in an unreasonable manner by leveraging unfair advantages by virtue of its status as an EU member state. As noted, the principle of good faith is deeply connected to the principle of reasonableness at the international level.⁷² This is certainly relevant, because Bulgaria’s claims consist simply in the negation of the key features of the statehood of North Macedonia by ultimately requiring North Macedonia to negate its own existence as a sovereign state.

One cannot ignore that Bulgaria’s blackmailing of North Macedonia in the context of the latter’s desire to join the Union is even more criticisable, since Bulgaria has notably benefitted from the Union’s “leniency” for its own accession, considering that Bulgaria was not in compliance with the EU’s rule of law criteria.⁷³ It seems ironic that Bulgaria feels free to misuse EU accession procedures and rules, without even articulating legal and EU-related claims for backing up its political blackmailing.

This leads us to two other types of general norms of international law which are applicable to Bulgaria’s conduct and actions in this context, which will be dealt with in the next section.

3. Bulgaria’s instrumentalization of EU accession rules for its mere internal political gains is abusive under international law

With the Framework position adopted by the Bulgarian Government⁷⁴ and the Declaration confirmed by the Assembly in October 2019⁷⁵, Bulgaria presented a set of conditions that would need to become part of the EU accession framework for North Macedonia to gain Bulgaria´s consent in order to initiate the negotiation process. Some examples of these conditions are acknowledgment that the Macedonian language is codified Bulgarian dialect and that there should be no mention of Macedonian language as part of EU documents or that North Macedonia and the EU should use only the full name of the country and not the shortened form. These conditions are not only unrelated to the EU accession rules and clearly unacceptable by the Macedonian side, but also contradict the Prespa agreement which refers to the distinct nature of the Macedonian language, history and culture. Further, the European Charter of Fundamental Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international charters and conventions from which the Macedonian people derive their inalienable and sovereign rights to self-determination are in turn closely related to their state-building status and national, historical, cultural, linguistic and nominal identities. However, at the same time, it cannot be entirely disregarded that the actions of Bulgaria against the accession of North Macedonia have been happening in a turbulent political climate where the nationalist ruling party has been dealing with continued mass demonstrations against its rule for months and have therefore resorted to stoking nationalistic sentiments by drawing on historical fault-lines in order to divert from existing domestic issues of scandals and corruption. To summarize, Bulgaria’s sustained attempts at politically hoodwinking its own peoples at the cost of North Macedonia’s legitimate political progress is an instance of instrumentalization of EU accession rules for internal political gains and thereby a violation of international law.

The doctrine of abuse of rights in international law is mostly seen as having a customa international legal value or to constitute a general principle of law according to Art. 38 of the ICJ Statute.⁷⁶ It is deeply connected to the principle of good faith, regarding which Michael Byers argued that abuse of rights “provides the threshold at which a lack of good faith gives rise to a violation of international law, with all the attendant consequences.”⁷⁷ Similarly, abuse of process is mostly qualified under international law as a general principle of law.⁷⁸ Also, since abuse of process derives from the principle of good faith, it is also based on international treaty law according to Art. 26 of the VCLT which “requires that every treaty in force must be performed by the parties in good faith, thereby requiring state parties not to abuse the processes of the treaty and its relevant dispute mechanisms.”⁷⁹

The doctrine of abuse of process is “directed against certain misuses of procedural rights and instruments by a party to a dispute.”⁸⁰ Robert Kolb has defined it more precisely as consisting of “the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights are established, especially for fraudulent, procrastinatory or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for purposes of pure propaganda.”⁸¹ Hervé Ascencio after recalling that this doctrine can be “deduced from the good faith”, indicates that it is “aimed at limiting the exercise of procedural subjective rights in some circumstances deemed to be abusive” and stresses its function which is the “correction [of] a too formalistic approach of the procedure, taking into account elements of social finality and fairness.”⁸² According to him, two main ideas are covered by this doctrine: “an abuse of right occurs when its beneficiary uses it in contradiction with the goal pursued by the rule instituting that right; or when its exercise affects the balance of interests at stake and favours in a disproportionate manner the beneficiary of the right.”⁸³ Also, Alexandre Kiss has distinguished three forms of abuses of rights, including one applicable to Bulgaria’s blackmailing operation, in situations when a state exercises a right “intentionally for an end which is different from that of which the right has been created, with the result that injury is caused.”⁸⁴

Even if the ICJ has clearly distinguished the two international legal concepts,⁸⁵ we are here applying both to the situation between Bulgaria and North Macedonia, since they are oftentimes considered as having partly overlapping scope of application.⁸⁶ Also, if some authors consider primarily their application in the context of international dispute settlement procedures, which is not currently the case for the aforementioned dispute, we submit that as principles of international law, they are relevant in the European Union context. This is especially the case in the inter-governmental setting, and reinforced by the Union’s willingness to respect international law at the core of its functioning.⁸⁷

4. Abuse of rights and process in international law as applicable to the EU accession framework

The procedure applying to votes by the European Council concerning the opening of negotiations for Albania and North Macedonia’s accession to the EU are regulated by Art. 12(1) of the Rules of Procedure of the European Council, which provides for the use of unanimity.⁸⁸ In the case of North Macedonia, it must as a Western Balkan State respect the requirements and procedures detailed in the Stabilisation and Association Process applicable to them.⁸⁹ The rule of unanimity therefore applies to the EU Council’s decision and is required for adopting a framework or a mandate for negotiations with the candidate country, which is exactly the context of Bulgaria’s blackmailing efforts.⁹⁰

However, according to the European Parliament resolution 2019/2883(RSP), “pursuant to Article 49 TEU, any state in Europe may apply to become a member of the European Union provided that it adheres to the Copenhagen criteria and the principles of democracy, respects fundamental freedoms and human and minority rights, and upholds the rule of law.”⁹¹ Accession to the EU is therefore regulated by the so-called Copenhagen criteria, which are themselves based on Arts. 49 and 6(1) TUE.⁹² According to those criteria, deciding upon the adoption of a framework for the sake of a candidacy of a third country to join the Union, remarkably does not rely on the pure individual will of EU member states, but rather on a list of material criteria. In any case, the attempt of an EU member state to revive and instrumentalise history in a complex region should presumably not trump the core elements of the rule of law according to the Union’s own understanding of it.⁹³ Those objective criteria are very comprehensive, and North Macedonia has notably achieved significant progress in striving to satisfy them. This has been officially recognised multiple times and explains why North Macedonia was originally expected to become an official candidate in 2020.

As Michael Byers has argued, the doctrine of abuse of rights is perhaps the most useful in international law in areas or situations wherein State sovereignty is less limited.⁹⁴ In this regard, the EU procedural framework for deciding upon a possible EU enlargement in the case of North Macedonia (and Albania) is a good example, since this framework is based on unanimity and is thus maximalising space for sovereign choices that individual EU member states can make in this context.⁹⁵ Should the fact that Bulgaria’s blackmailing taking place within the EU be perceived as problematic, another central feature of the Union should be recalled here. The EU constitutes at the very least a legal community. This means that Bulgaria’s abuse of rights and procedures applicable in the EU by unreasonably pressuring its neighbour, directly contravenes the (ideal) possibility of a common understanding that EU accession procedures and rules concerning primarily the fate of the Union cannot be hijacked for internal political purposes of one member state without any claims.⁹⁶ This is even more so the case whenever political and legal requirements as set out in EU law are fulfilled, since it strengthens the intensity of states’ obligations not to act in bad faith in a way that instrumentalises otherwise legitimate rights for harming another state.⁹⁷

Bulgaria is instrumentalising its vote for the adoption of the EU Commission’s proposed negotiation framework for North Macedonia for other purposes, i.e., to advance a political agenda based on historical and cultural claims which are irrelevant to EU requirements for granting the official status of candidate country to EU accession. Therefore, it can be regarded as violating the aforementioned international fundamental principles by abusing the rights it enjoys in the Union as well as the EU legal processes applicable to possible enlargement. This is even more problematic in light of France’s blocking of negotiation talks for North Macedonia and Albania for want of reinforcement of EU enlargement procedures, especially when these procedures have already been strengthened.⁹⁸

If there is formally no right of veto explicitly conferred upon EU member states, the fact that unanimity is required under EU law for enlargement-related matters should invite us to consider the possibility of revisiting a proposal made previously regarding the UN Security Council and defended by several EU member states, on restraining the possibility to indefinitely use a veto power without any justifications whatsoever.⁹⁹ While the situation at stake with the ongoing Bulgarian strong-arming within the EU obviously does not pertain to mass crimes, the abusive use of EU procedures and rules in bad faith contributes nonetheless to seriously injuring the rule of law as well as the Union’s core interests and its standing in the region. Serious concerns about the unimpeded instrumentalisation of a de facto veto power by Bulgaria are even more aggravated given various issues that exist in Bulgaria concerning the rights of the Macedonian minority.

5. Bulgaria’s abusive behaviour is also harming the rights of the Macedonian minority living in Bulgaria as well as the authority of the Strasbourg Court

Reportedly, Bulgaria is expressing fears that a possible accession of North Macedonian to the EU could revive tensions relating to the Macedonian minority living on its territory.¹⁰⁰ These Bulgarian concerns have been expressed to justify the vetoing of North Macedonia’s official candidacy to accede to the EU, in spite of North Macedonia actively taking steps to calm those fears, and the Treaty of Friendship in force between the two countries actually covering this subject-matter comprehensively under its Art. 11.¹⁰¹ To this effect, Art. 11(5) provides for the following unilateral engagement of North Macedonia towards its neighbour: “The Republic of Macedonia confirms that nothing in its Constitution can and should be interpreted as constituting or will ever constitute a basis for interfering in the internal affairs of the Republic of Bulgaria with the purpose of protecting the status and rights of persons who are not citizens of the Republic of Macedonia.”

However, if this interpretation could have been upheld politically, legally the fact that the European Court of Human Rights have rendered several judgments condemning Bulgaria for the treatment of its Macedonian minority rights cannot be ignored.¹⁰² So quite on the contrary, the situation between North Macedonia and Bulgaria endangers the rights and lives of minorities in both states, including those of Macedonians in Bulgaria.¹⁰³ This risk is particularly real due to the possibilities that Bulgaria’s weaponization of the regional history with an offensive stance can lead to worsening of relationship between the peoples of both countries. Most recently, some Bulgarian political leaders started raising arguments with respect to the treatment of the Bulgarian minority in North Macedonia, offering another instance of Bulgaria’s boldness to instrumentalise issues regardless of its own treatment towards its own minority.¹⁰⁴ This boldness has recently extended to the domestic affairs of North Macedonia whereby in anticipation of the Macedonian census and in context of alleged assaults on ethnic Bulgarian Macedonians, Bulgarian institutions are being urged by the state´s president to simplify the procedures for requiring Bulgarian citizenship for those publicly declaring themselves to be Bulgarians in North Macedonia¹⁰⁵. This can be construed as a tactic to offer EU passports to citizens abroad in the garb of protecting their right of national self-awareness. This is not just an open offer of gain for change of ethnicity but also an instance of direct interference in the internal affairs of North Macedonia¹⁰⁶

Although several judgments have condemned Bulgaria for its treatment of the rights of the minority of ethnical Macedonians, who compose up to 10% of its population, this state has for the moment not modified its laws and policies to respect the judgments of the ECtHR.¹⁰⁷ The strategy deployed by Bulgaria against North Macedonia’s bill to join the EU is another reminder that the Balkans do not need further tensions, both in light of the existing challenges in the region as well as those concerning the European political landscape.