Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.
On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.
I. Background to the Dispute
The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.
Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.
It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation. Read the rest of this entry…