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The International Court of Justice declares Greece’s obstruction of the Former Yugoslav Republic of Macedonia’s application to join NATO unlawful

On 5 December 2011, the International Court of Justice (“ICJ” or the “Court”) delivered its judgment in the Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece). The Court decided that the Hellenic Republic’s (“Greece”) objections to the Former Yugoslav Republic of Macedonia’s (the “FYROM”) application for membership of the North Atlantic Treaty Organization (“NATO”) breached Greece’s obligations under international law. Specifically, Greece violated article 11(1) of the Interim Accord with the FYROM of 13 September 1995 (the “Interim Accord”). The Interim Accord was intended to restore strained relations between the two countries and set a roadmap for the resolution of the underlying dispute over the official name of the FYROM.

Background

The FYROM formed part of the Socialist Federal Republic of Yugoslavia until the dissolution of that State. The FYROM declared its independence on 17 September 1991 and, under its new Constitution, adopted the name the “Republic of Macedonia”. Greece objected to this name on the basis that it implied that the new State had a claim to part of Greece’s northern territory, called Greek Macedonia. Further, Greece alleged that the use of ancient Greek symbols by the FYROM, including as the centrepiece to its flag from 1992 to 1995, indicated that the FYROM was staking a claim to Greek territory.

The United Nations Security Council (the “UNSC”) endorsed admission of the FYROM to the United Nations (the “UN”) in 1993 on condition that it should be provisionally known as the Former Yugoslav Republic of Macedonia “pending settlement of the difference that has arisen over the name of the State” (the “name issue”) in UNSC Resolution 817 (paragraph 2). In the same year, tensions flared between Greece and the FYROM over the name issue.

In 1995, the FYROM and Greece agreed the Interim Accord in order to “develop their mutual relations and to lay firm foundations for a climate of peaceful relations and understanding”. The two parties did not resolve the underlying name issue, but agreed to continue negotiations under the guidance of the UN Secretary-General. The FYROM also agreed to change its flag and Constitution, and Greece agreed not to object to the FYROM’s application to join, or membership of, any international organisation, unless it was to be called any name other than that designated in UNSC Resolution 817 by the organisation in question.

The FYROM applied to join NATO using the name stipulated in UNSC Resolution 817, and hoped to be invited to do so at the Bucharest Summit of NATO Member States in April 2008. Instead, the Bucharest Summit Declaration stated that “an invitation … will be extended as soon as a mutually acceptable solution to the name issue has been reached”. The FYROM alleged that the NATO Member States took this position because Greece objected to its application for membership while the name issue remained unresolved.

The FYROM’s claim before the ICJ that Greece violated the Interim Accord

In November 2008, the FYROM applied to the ICJ claiming that Greece had violated article 11(1) of the Interim Accord, which provides as follows:

“…The Party of the First Part [Greece] agrees not to object to the application by or the membership of the Party of the Second Part [FYROM] in international, multilateral and regional organizations and institutions of which the Party of the First Part is a member; however, the Party of the First Part reserves the right to object to any membership referred to above if and to the extent the Party of the Second Part is to be referred to in such organization or institution differently than in paragraph 2 of the United Nations Security Council resolution 817 (1993).”

The FYROM sought two remedies from the ICJ for the alleged breach of Greece’s international obligations:

A declaration that Greece had violated article 11(1) of the Interim Accord.

An order that Greece comply with article 11(1) of the Interim Accord, immediately and in the future, in respect of NATO or any other international, multilateral or regional organisation.

The ICJ rejected Greece’s objections to the jurisdiction of the Court

The FYROM submitted that the ICJ had jurisdiction over the dispute under article 21(2) of the Interim Accord, which states:

“Any difference or dispute that arises between the Parties concerning the interpretation or implementation of this Interim Accord may be submitted by either of them to the International Court of Justice, except for the difference referred to in Article 5, paragraph 1.”

Greece’s primary objection to jurisdiction was that the dispute between the parties concerned the name issue, which is the subject of article 5(1), and was excluded from the jurisdiction of the Court under article 21(2). Indeed, Greece relied upon the Bucharest Summit Declaration, which stated that the name issue was the main obstacle to the FYROM’s membership of NATO. Greece also argued that the case was incompatible with the ICJ’s judicial function because it would interfere with on-going negotiations between the parties on the name issue.

The ICJ rejected all of Greece’s objections to jurisdiction. First, it distinguished differences over the FYROM’s definitive name and differences over Greece’s obligation under article 11(1). A narrow interpretation of the exception to jurisdiction in article 21(2) was supported by the plain wording of the Interim Accord and its object and purpose to “stabilize the relations between the Parties”. The Court accepted that, in order to further this purpose, it may take jurisdiction over disputes related to the name issue, and doing so would not be contrary to judicial propriety.

The ICJ found that Greece had violated article 11(1) of the Interim Accord

The ICJ determined by 15 votes to 1 that Greece had objected to the FYROM’s application to join NATO, contrary to article 11(1) of the Interim Accord. The Court adopted a broad definition of “objection”, which included diplomatic actions and statements made before, during and after the Bucharest Summit that made clear that the name issue must be resolved before Greece would accept the FYROM’s application to join NATO.

In contrast, the Court took a narrow approach to the exception for objections if the FYROM is to be referred to by any other name by an organisation that it joins, or seeks to join, contained in the second clause of article 11(1) of the Interim Accord. In the Court’s view, Greece could not rely on this exception because NATO was to refer to the FYROM by its provisional name. It was irrelevant that the FYROM intended to call itself the Republic of Macedonia once it gained entry to NATO because article 11(1) imposes obligations on Greece alone.

Further, the ICJ rejected Greece’s argument that it was not in breach of article 11(1) of the Interim Accord because it “has not only a right but also a duty to raise its concerns if it believes that an applicant does not fulfil the organization’s accession criteria” under the NATO treaty. Although article 22 of the Interim Accord states that the Accord “does not infringe on the rights and duties resulting from bilateral or multilateral agreements already in force that the Parties have concluded with other States or organizations”, this does not mean that Greece’s rights to withhold consent from prospective NATO members trumped its obligations under the Interim Accord. Further, Greece could not identify any obligation to object to the FYROM’s membership bid that conflicted with article 11(1) of the Interim Accord.

The ICJ rejected Greece’s additional justifications for its conduct

Greece attempted to justify its breach of article 11(1) on the basis that the FYROM had also breached certain other provisions of the Interim Accord. It relied upon three legal doctrines to make this argument: exceptio non adimpleti contractus, material breach of treaty under article 60 of the Vienna Convention on the Law of Treaties 1969, and counter-measures under the law of State responsibility.

The ICJ recognised that the above doctrines share certain minimum conditions, namely that the FYROM must have breached its obligations and that Greece must have acted in response to the FYROM’s conduct. It found that the FYROM had breached only one of the six articles invoked by Greece, when the FYROM used a prohibited symbol on its flag in 2004. The Court concluded that Greece’s breach of article 11(1) of the Interim Accord in 2008 was neither intended nor appropriate to respond to the FYROM’s conduct, and therefore could not be justified under any of the doctrines relied upon by Greece.

Remedies

Having found that Greece had violated article 11(1) of the Interim Accord, the ICJ was prepared to make a declaration to that effect. However, it refused to grant the Order requested by the FYROM to prevent future misconduct by Greece. The ICJ held that there was no reason to believe, based on Greece’s past conduct, that it would commit further breaches of the Interim Accord.

Conclusion

The ICJ’s judgment does not determine the name issue that continues to divide Greece and the FYROM. Indeed, Greece has welcomed this fact and praised the restraint exercised by the ICJ with regard to remedies. The Court did, however, note the inconclusive negotiations which had taken place between the parties over the past 13 years. Hopefully the resolution of this specific issue through the Court’s decision will now act as a catalyst and allow the parties to move forward by renewing their efforts to resolve their broader dispute.