| Μαθήματα και εμπειρίες από τη Χάγη |  |  |  |
====================================================================
5 ECEMBER 2011
JUDGMENT
APPLICATION
OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA v. GREECE
APPLICATION
DE L’ACCORD INTÉRIMAIRE DU 13 SEPTEMBRE 1995
(EX-RÉPUBLIQUE
YOUGOSLAVE DE MACÉDOINE c. GRÈCE)
5 DÉCEMBRE 2011
ARRÊT
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-14
I. INTRODUCTION 15-22
II. JURISDICTION OF THE COURT
AND ADMISSIBILITY OF THE APPLICATION 23-61
1.
Whether the dispute is excluded from the Court’s jurisdiction under the terms
of Article 21, paragraph 2, of the Interim Accord, read in conjunction with
Article 5, paragraph 1 28-38
2.
Whether the dispute relates to the conduct of NATO or its Member States
3.
Whether the Court’s Judgment would be incapable of effective application 45-54
4.
Whether the Court’s Judgment would interfere with ongoing diplomatic negotiations
55-60
5.
Conclusion concerning the jurisdiction of the Court over the present dispute and
the admissibility of the Application 61
III. WHETHER THE RESPONDENT
FAILED TO COMPLY WITH THE OBLIGATION UNDER ARTICLE 11, PARAGRAPH 1, OF THE INTERIM
ACCORD 62-113
1.
The Respondent’s obligation under Article 11, paragraph 1, of the Interim
Accord not to object to the Applicant’s admission to NATO 67-83
A.
The meaning of the first clause of Article 11, paragraph 1, of the Interim
Accord 67-71
B.
Whether the Respondent “objected” to the Applicant’s admission to NATO 72-83
2.
The effect of the second clause of Article 11, paragraph 1, of the Interim Accord
84-103
3.
Article 22 of the Interim Accord 104-112
4.
Conclusion concerning whether the Respondent failed to comply with Article 11,
paragraph 1, of the Interim Accord 113 - ii –
IV.
ADDITIONAL JUSTIFICATIONS INVOKED BY THE RESPONDENT 114-164
1. The Parties’ arguments with regard
to the Respondent’s additional justifications 115-122
A. The Parties’ arguments with regard
to the exceptio non adimpleti contractus 115-117
B.
The Parties’ arguments with regard to a response to material breach 118-119
C.
The Parties’ arguments with regard to countermeasures 120-122
2.
The Respondent’s allegations that the Applicant failed to comply with its obligations
under the Interim Accord 123-160
A.
Alleged breach by the Applicant of the second clause of Article 11, paragraph 1
124-126
B.
Alleged breach by the Applicant of Article 5, paragraph 1 127-138
C. Alleged breach by the Applicant of
Article 6, paragraph 2 139-142
D. Alleged breach by the Applicant of
Article 7, paragraph 1 143-147
E. Alleged breach by the Applicant of
Article 7, paragraph 2 148-153
F. Alleged breach by the Applicant of
Article 7, paragraph 3 154-160
3. Conclusions concerning the
Respondent’s additional justifications 161-164
A. Conclusion concerning the exceptio non adimpleti contractus 161
B. Conclusion concerning a
response to material breach 162-163
C. Conclusion concerning
countermeasures 164-165
V. REMEDIES 167-169
OPERATIVE CLAUSE 170
___________
INTERNATIONAL COURT OF JUSTICE
YEAR 2011
5 December 2011
General List
No. 142
5 December 2011
APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995
(THE FORMER YUGOSLAV
REPUBLIC OF MACEDONIA v. GREECE
Historical context and origin of the dispute.
Break-up of Socialist Federal Republic of Yugoslavia ⎯ Application for
membership in United Nations submitted by Applicant on 30 July 1992 ⎯ Opposition
of Respondent to Applicant’s admission ⎯ Security Council resolution 817
(1993) ⎯ Applicant admitted to membership in United Nations under
provisional designation of “the former Yugoslav Republic of Macedonia” ⎯ Interim
Accord of 13 September 1995 ⎯ Applicant’s NATO candidacy considered at Bucharest
Summit on 2 and 3 April 2008 ⎯ Applicant not invited to begin talks on accession
to NATO.
*
Jurisdiction of the Court and admissibility of Application.
Scope of dispute ⎯ Article 21, paragraph 2, of Interim Accord, as a
basis for the Court’s jurisdiction.
Respondent’s first objection to jurisdiction ⎯ Contention that
dispute is excluded from the Court’s jurisdiction under Article 21, paragraph 2
⎯ Article 21, paragraph 2, excludes disputes regarding the difference
over the definitive name ⎯ Disputes regarding Respondent’s obligation
under Article 11, paragraph 1, within the Court’s jurisdiction ⎯ Objection
cannot be upheld. - 2 -
Respondent’s second objection to jurisdiction ⎯ Contention that
dispute relates to conduct attributable to NATO and its member States ⎯ Applicant
seeks to challenge Respondent’s conduct and not NATO’s decision ⎯ No
need to determine responsibility of NATO or of its member States ⎯ Monetary
Gold principle not relevant ⎯ Objection cannot be upheld.
Respondent’s first objection to admissibility of Application ⎯ Contention that
Judgment would be incapable of effective application ⎯ Applicant’s
claims relate to Respondent’s conduct ⎯ Judgment capable of being
applied effectively by the Parties ⎯ Objection cannot be upheld.
Respondent’s second objection to admissibility of Application ⎯ Contention that
the Court’s Judgment would interfere with ongoing diplomatic negotiations ⎯
Settlement of disputes by the Court not incompatible with diplomatic negotiations
⎯ Objection cannot be upheld.
The Court has jurisdiction ⎯ Application is admissible.
*
Merits of the case.
Contention by Applicant that Respondent failed to comply with the
obligation under Article 11, paragraph 1, of the Interim Accord.
Meaning of first clause of Article 11, paragraph 1 ⎯ Parties did not
intend to exclude NATO from scope of that provision ⎯ Whether Respondent
“objected” to Applicant’s admission to NATO ⎯ Resolution of difference
over the name was the “decisive criterion” for Respondent to accept
Applicant’s admission to NATO ⎯ Respondent objected to Applicant’s
admission to NATO.
Effect of second clause of Article 11, paragraph 1 ⎯ Ordinary
meaning of terms employed ⎯ Meaning of phrase “to the extent” ⎯ Meaning
of phrase “to be referred to . . . differently than in paragraph 2 of
Security Council resolution 817 (1993)” ⎯ Interim Accord did not require
Applicant to use provisional designation in its dealings with Respondent ⎯ No
constraint on Applicant’s practice of calling itself by its constitutional name
⎯ Interpretation supported by object and purpose of Interim Accord ⎯
Subsequent practice of the Parties in implementing Interim Accord ⎯ No
objection allowed on basis that Applicant is to refer to itself in an
organization with its constitutional name ⎯ No need to address travaux
préparatoires or additional evidence regarding use of Applicant’s constitutional
name ⎯ Respondent not entitled under second clause of Article 11,
paragraph 1, to object to Applicant’s admission to NATO.
Contention of Respondent that any objection to Applicant’s membership of
NATO would be justified under Article 22 of Interim Accord ⎯ Respondent’s interpretation
of Article 22 ⎯ No requirement under the North Atlantic Treaty
compelling the Respondent to object to admission of Applicant to NATO ⎯ Respondent’s
attempt to rely on Article 22 unsuccessful. - 3 –
Respondent failed to comply with its obligation under Article 11, paragraph
1.
*
Additional justifications invoked by Respondent.
Exceptio non
adimpleti contractus ⎯ Response to a material breach of a treaty ⎯ Countermeasures
⎯ Certain minimum conditions common to all three arguments.
Respondent’s allegations that Applicant failed to comply with its
obligations under Interim Accord ⎯ No breach by Applicant of second clause of
Article 11, paragraph 1 ⎯ Alleged breach by Applicant of Article 5,
paragraph 1 ⎯ Obligation to negotiate in good faith ⎯ Respondent
has not met its burden of demonstrating that Applicant breached its obligation
under Article 5, paragraph 1 ⎯ No breach by Applicant of Article 6,
paragraph 2, prohibiting interference in Respondent’s internal affairs ⎯ No
breach by Applicant of Article 7, paragraph 1, requiring Applicant to take
effective measures to prohibit hostile activities or propaganda by
State-controlled agencies ⎯ Alleged breach by Applicant of Article 7,
paragraph 2 ⎯ One instance in 2004 in which Applicant displayed a symbol
prohibited by Article 7, paragraph 2 ⎯ No breach by Applicant of Article
7, paragraph 3, regarding procedure to be followed in cases where symbols constituting
part of one Party’s historic or cultural patrimony are being used by other
Party.
Conclusions concerning additional justifications invoked by Respondent ⎯ Conditions
asserted by Respondent as necessary for application of the exceptio not
satisfied ⎯ Unnecessary for the Court to determine whether that doctrine
forms part of contemporary international law ⎯ Response to material
breach ⎯ Display of symbol in 2004 cannot be regarded as material breach
within meaning of Article 60 of 1969 Vienna Convention ⎯ Failure of
Respondent to show that its conduct in 2008 was a response to 2004 breach ⎯
Countermeasures ⎯ Breach of Article 7, paragraph 2, by Applicant had
ceased as of 2004 ⎯ Respondent’s objection cannot be justified as a
countermeasure ⎯ Additional justifications submitted by Respondent fail.
*
Interim Accord places Parties under a duty to negotiate in good faith
with a view to resolving difference over name.
·
- 4 –
·
Remedies.
Declaration that Respondent has violated its obligation to Applicant
under Article 11, paragraph 1, of Interim Accord, constitutes appropriate
satisfaction ⎯ Not necessary to order Respondent to refrain from
any future conduct that violates its obligation under Article 11, paragraph 1.
JUDGMENT
Present: President OWADA; Vice-President TOMKA; Judges KOROMA,
SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE,
YUSUF, GREENWOOD, XUE, DONOGHUE; Judges ad hoc ROUCOUNAS, VUKAS; Registrar
COUVREUR.
In the case
concerning application of the Interim Accord of 13 September 1995,
between
the former Yugoslav Republic of Macedonia
represented by
H.E. Mr. Nikola
Poposki, Minister for Foreign Affairs of the former Yugoslav Republic of
Macedonia,
H.E. Mr. Antonio
Miloshoski, Chairman of the Foreign Policy Committee of the Assembly of the
former Yugoslav Republic of Macedonia,
as Agents;
H.E. Mr. Nikola
Dimitrov, Ambassador of the former Yugoslav Republic of Macedonia to the
Kingdom of the Netherlands,
as Co-Agent;
Mr. Philippe Sands,
Q.C., Professor of Law, University College London , Barrister,
Matrix Chambers, London
Mr. Sean D. Murphy,
Patricia Roberts Harris Research Professor of Law, George Washington
University
Ms Geneviève Bastid-Burdeau, Professor of Law, University of Paris
Mr. Pierre Klein,
Professor of International Law, Director of the Centre of International Law,
Université Libre de Bruxelles, - 5 –
Ms Blinne Ní
Ghrálaigh, Barrister, Matrix Chambers, London
as Counsel;
Mr. Saso
Georgievski, Professor of Law, University Sts Cyril and Methodius, Skopje
Mr. Toni Deskoski,
Professor of Law, University Sts Cyril and Methodius, Skopje
Mr. Igor Djundev,
Ambassador, State Counsellor, Ministry of Foreign Affairs of the former
Yugoslav Republic of Macedonia,
Mr. Goran
Stevcevski, State Counsellor, International Law Directorate, Ministry of
Foreign Affairs of the former Yugoslav Republic of Macedonia,
Ms Elizabeta
Gjorgjieva, Minister Plenipotentiary, Deputy-Head of Mission of the former
Yugoslav Republic of Macedonia to the European Union,
Ms Aleksandra
Miovska, Head of Co-ordination Sector, Cabinet Minister for Foreign Affairs of
the former Yugoslav Republic of Macedonia,
as Advisers;
Mr. Mile Prangoski,
Research Assistant, Cabinet of Minister for Foreign Affairs of the former
Yugoslav Republic of Macedonia,
Mr. Remi Reichold,
Research Assistant, Matrix Chambers, London
as
Assistants;
Ms Elena Bodeva,
Third Secretary, Embassy of the former Yugoslav Republic of Macedonia in the
Kingdom of the Netherlands,
as Liaison
Officer with the International Court of Justice;
Mr. Ilija Kasaposki,
Security Officer of the Foreign Minister of the former Yugoslav Republic of
Macedonia,
and
the Hellenic Republic
represented
by
H.E. Mr. Georges
Savvaides, Ambassador of Greece
Ms Maria Telalian,
Legal Adviser, Head of the Public International Law Section of the Legal
Department, Ministry of Foreign Affairs of Greece
as Agents; - 6 –
Mr. Georges Abi-Saab, Honorary Professor of
International Law, Graduate Institute of International Studies, Geneva, member
of the Institut de droit international,
Mr. James Crawford,
S.C., F.B.A., Whewell Professor of International Law, University of Cambridge,
member of the Institut de droit international,
Mr. Alain Pellet,
Professor of International Law, University of Paris Ouest, Nanterre-La Défense,
member and former Chairman of the International Law Commission, associate
member of the Institut de droit international,
Mr. Michael Reisman,
Myres S. McDougal Professor of International Law, Yale Law School, member of
the Institut de droit international,
as Senior Counsel and Advocates;
Mr. Arghyrios
Fatouros, Honorary Professor of International Law, University of Athens, member
of the Institut de droit international,
Mr. Linos-Alexandre
Sicilianos, Professor of International Law, University of Athens
Mr. Evangelos Kofos,
former Minister-Counsellor, Ministry of Foreign Affairs of Greece, specialist
on Balkan affairs,
as Counsel;
Mr. Tom Grant,
Research Fellow, Lauterpacht Centre for International Law, University of Cambridge
Mr. Alexandros
Kolliopoulos, Assistant Legal Adviser, Public International Law Section of the
Legal Department, Ministry of Foreign Affairs of Greece,
Mr. Michael
Stellakatos-Loverdos, Assistant Legal Adviser, Public International Law Section
of the Legal Department, Ministry of Foreign Affairs of Greece,
Ms Alina Miron,
Researcher, Centre de droit international de Nanterre (CEDIN), University of Paris Ouest
as Advisers;
H.E. Mr. Ioannis
Economides, Ambassador of Greece
to the Kingdom of the Netherlands
Ms Alexandra
Papadopoulou, Minister Plenipotentiary, Head of the Greek Liaison Office in Skopje
Mr. Efstathios
Paizis Paradellis, First Counsellor, Embassy of Greece
in the Kingdom of the Netherlands
Mr. Elias Kastanas,
Assistant Legal Adviser, Public International Law Section of the Legal
Department, Ministry of Foreign Affairs of Greece, - 7 –
Mr. Konstantinos
Kodellas, Embassy Secretary,
as Diplomatic
Advisers;
Mr. Ioannis
Korovilas, Embassy attaché,
Mr. Kosmas
Triantafyllidis, Embassy attaché,
as
Administrative Staff,
THE COURT,
composed as
above,
after
deliberation,
delivers the following Judgment:
1. On 17 November 2008, the former Yugoslav Republic
of Macedonia (hereinafter the “Applicant”) filed in the Registry of the Court
an Application instituting proceedings against the Hellenic Republic
(hereinafter the “Respondent”) in respect of a dispute concerning the
interpretation and implementation of the Interim Accord signed by the Parties
on 13 September 1995, which entered into force on 13 October 1995 (hereinafter
the “Interim Accord”). In particular, the Applicant sought
“to establish the violation by the Respondent of its
legal obligations under Article 11, paragraph 1, of the Interim Accord and to
ensure that the Respondent abides by its obligations under Article 11 of the
Interim Accord in relation to invitations or applications that might be made to
or by the Applicant for membership of NATO or any other international,
multilateral or regional organization or institution of which the Respondent is
a member”.
3. Pursuant to Article 40, paragraph 2, of the
Statute, the Application was communicated forthwith to the Government of the
Respondent by the Registrar; and, in accordance with paragraph 3 of that
Article, all States entitled to appear before the Court were notified of the
Application.
4. Since the Court included upon the Bench no judge of
the nationality of either of the Parties, each Party proceeded to exercise its
right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad
hoc to sit in the case. The Applicant chose Mr. Budislav Vukas and the
Respondent Mr. Emmanuel Roucounas. - 8
5. By an Order dated 20 January 2009, the Court fixed
20 July 2009 and 20 January 2010, respectively, as the time-limits for the
filing of the Memorial of the Applicant and the Counter-Memorial of the
Respondent. The Memorial of the Applicant was duly filed within the time-limit
so prescribed.
6. By a letter dated 5 August 2009, the Respondent
stated that, in its view, “the Court manifestly lacks jurisdiction to rule on
the claims of the Applicant in this case”, but informed the Court that, rather
than raising preliminary objections under Article 79 of the Rules of the Court,
it would be addressing “issues of jurisdiction together with those on the
merits”. The Registrar immediately communicated a copy of that letter to the Applicant.
The
Counter-Memorial of the Respondent, which addressed issues relating to jurisdiction
and admissibility as well as to the merits of the case, was duly filed within
the time-limit prescribed by the Court in its Order of 20 January 2009.
7. At a meeting held by the President of the Court
with the representatives of the Parties on 9 March 2010, the Co-Agent of the
Applicant indicated that his Government wished to be able to respond to the
Counter-Memorial of the Respondent, including the objections to jurisdiction
and admissibility contained in it by means of a Reply. At the same meeting, the
Agent of the Respondent stated that her Government had no objection to the
granting of this request, in so far as the Respondent could in turn submit a Rejoinder.
8. By an Order of 12 March 2010, the Court authorized
the submission of a Reply by the Applicant and a Rejoinder by the Respondent,
and fixed 9 June 2010 and 27 October 2010 as the respective time-limits for the
filing of those pleadings. The Reply and the Rejoinder were duly filed within
the time-limits so prescribed.
10. Public hearings were held between 21 and 30 March
2011, at which the Court heard the oral arguments and replies of:
For the Applicant: Mr. Antonio Miloshoski,
Mr. Philippe Sands,
Mr. Sean Murphy, Mr. Pierre Klein, Ms Geneviève Bastid-Burdeau, Mr. Nikola
Dimitrov.
For the Respondent: Ms Maria Telalian,
Mr. Georges Savvaides, Mr. Georges Abi-Saab, - 9 –
Mr. Michael Reisman,
Mr. Alain Pellet, Mr. James Crawford.
11. At the hearings, a Member of the Court put a
question to the Respondent, to which a reply was given in writing, within the
time-limit fixed by the President in accordance with Article 61, paragraph 4,
of the Rules of Court. Pursuant to Article 72 of the Rules of Court, the
Applicant submitted comments on the written reply provided by the Respondent.
*
“The Applicant requests the Court:
(i) to adjudge and
declare that the Respondent, through its State organs and agents, has violated
its obligations under Article 11, paragraph 1, of the Interim Accord;
(ii) to order that
the Respondent immediately take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to cease
and desist from objecting in any way, whether directly or indirectly, to the
Applicant’s membership of the North Atlantic Treaty Organization and/or of any
other ‘international, multilateral and regional organizations and institutions’
of which the Respondent is a member, in circumstances where the Applicant is to
be referred to in such organizations or institutions by the designation
provided for in paragraph 2 of United Nations Security Council resolution 817
(1993).”
On behalf of the Government of the Applicant,
in the
Memorial:
“On the basis of the evidence and legal arguments
presented in this Memorial, the Applicant
Requests the Court:
(i)
to adjudge and declare that the Respondent, through
its State organs and agents, has violated its obligations under Article 11,
paragraph 1, of the Interim Accord; and - 10 –
(ii)
(ii) to order
that the Respondent immediately take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to cease
and desist from objecting in any way, whether directly or indirectly, to the
Applicant’s membership of the North Atlantic Treaty Organization and/or of any
other ‘international, multilateral and regional organizations and institutions’
of which the Respondent is a member, in circumstances where the Applicant is to
be referred to in such organization or institution by the designation provided
for in paragraph 2 of United Nations Security Council resolution 817 (1993).”
in the Reply:
“On the basis of the evidence and legal arguments
presented in this Reply, the Applicant
Requests the Court:
(i) to reject the
Respondent’s objections as to the jurisdiction of the Court and the
admissibility of the Applicant’s claims;
(ii) to adjudge and
declare that the Respondent, through its State organs and agents, has violated
its obligations under Article 11, paragraph 1, of the Interim Accord; and
(iii) to order that
the Respondent immediately take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to cease
and desist from objecting in any way, whether directly or indirectly, to the
Applicant’s membership of the North Atlantic Treaty Organization and/or of any
other ‘international, multilateral and regional organizations and institutions’
of which the Respondent is a member, in circumstances where the Applicant is to
be referred to in such organization or institution by the designation provided
for in paragraph 2 of United Nations Security Council resolution 817 (1993).”
On behalf of the Government of the Respondent,
in the
Counter-Memorial and in the Rejoinder:
“On the basis of the preceding evidence and legal
arguments, the Respondent, the Hellenic
Republic
(i) that the case
brought by the FYROM1 before the Court does not fall within the jurisdiction of
the Court and that the FYROM’s claims are inadmissible;
(ii) in the event
that the Court finds that it has jurisdiction and that the claims are
admissible, that the FYROM’s claims are unfounded.”
1The acronym “FYROM” is used by the
Respondent to refer to the Applicant. - 11 –
14. At the oral
proceedings, the following submissions were presented by the Parties:
On behalf of the Government of the Applicant,
at the
hearing of 28 March 2011:
“On the basis of the evidence and legal arguments
presented in its written and oral pleadings, the Applicant requests the Court:
(i) to reject the
Respondent’s objections as to the jurisdiction of the Court and the
admissibility of the Applicant’s claims;
(ii) to adjudge and
declare that the Respondent, through its State organs and agents, has violated
its obligations under Article 11, paragraph 1, of the Interim Accord; and
(iii) to order that
the Respondent immediately take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to cease
and desist from objecting in any way, whether directly or indirectly, to the
Applicant’s membership of the North Atlantic Treaty Organization and/or of any
other ‘international, multilateral and regional organizations and institutions’
of which the Respondent is a member, in circumstances where the Applicant is to
be referred to in such organization or institution by the designation provided
for in paragraph 2 of United Nations Security Council resolution 817 (1993).”
On behalf of the Government of the Respondent,
at the
hearing of 30 March 2011:
“On the basis of the preceding evidence and legal
arguments presented in its written and oral pleadings, the Respondent, the
Hellenic Republic, requests the Court to adjudge and declare:
(i) that the case
brought by the Applicant before the Court does not fall within the jurisdiction
of the Court and that the Applicant’s claims are inadmissible;
(ii) in the event
that the Court finds that it has jurisdiction and that the claims are
admissible, that the Applicant’s claims are unfounded.”
*
* * - 12 –
I. INTRODUCTION
15. Before
1991, the Socialist Federal Republic of Yugoslavia comprised six constituent
republics, including the “Socialist Republic of Macedonia Socialist
Republic of Macedonia
enacted a constitutional amendment, changing the name “Socialist
Republic of Macedonia ”
to the “Republic
of Macedonia
16. On 30 July 1992, the Applicant submitted an
application for membership in the United Nations. The Respondent stated on 25
January 1993 that it objected to the Applicant’s admission on the basis of the
Applicant’s adoption of the name “Republic
of Macedonia Macedonia ”
referred to a geographical region in south-east Europe
that included an important part of the territory and population of the
Respondent and of certain third States. The Respondent further indicated that
once a settlement had been reached on these issues, it would no longer oppose
the Applicant’s admission to the United Nations. The Respondent had also
expressed opposition on similar grounds to the Applicant’s recognition by the
member States of the European Community.
17. On 7 April 1993, in accordance with
Article 4, paragraph 2, of the Charter, the Security Council adopted resolution
817 (1993), concerning the “application for admission to the United Nations” of
the Applicant. In that resolution, noting that “a difference has arisen over
the name of the [Applicant], which needs to be resolved in the interest of the
maintenance of peaceful and good-neighbourly relations in the region”, the
Security Council:
“1. Urge[d] the parties to continue to
cooperate with the Co-Chairmen of the Steering Committee of the International
Conference on the Former Yugoslavia
2. Recommend[ed] to the General Assembly that
the State whose application is contained in document S/25147 be admitted to
membership in the United Nations, this State being provisionally referred to
for all purposes within the United Nations as ‘the former Yugoslav Republic of
Macedonia’ pending settlement of the difference that has arisen over the name
of the State;
3. Request[ed] the Secretary-General to report
to the Council on the outcome of the initiative taken by the Co-Chairmen of the
Steering Committee of the International Conference on the Former Yugoslavia
18. On 8 April 1993, the Applicant was admitted to the
United Nations, following the adoption by the General Assembly, on the
recommendation of the Security Council, of resolution A/RES/47/225. On 18 June 1993, in light of the
continuing absence of a settlement of the difference over the name, the Security
Council adopted resolution 845 (1993) urging the Parties “to continue their
efforts under the auspices of the Secretary-General to arrive at a speedy
settlement of the remaining issues between them”. While the Parties have engaged
in negotiations to that end, these negotiations have not yet led to a mutually
acceptable solution to the name issue. - 13 -
[2]In the French version of the Interim Accord published in the United
Nations Treaty Series the expression “if and to the extent” has been rendered
by the sole conjunction “si”. For the purposes of this Judgment, the Court will
however use, in the French text, the expression “si et dans la mesure où”,
which is a more literal translation of the original English version.
19. Following its admission to the United Nations, the
Applicant became a member of various specialized agencies of the United Nations
system. However, its efforts to join several other non-United Nations
affiliated international institutions and organizations, of which the
Respondent was already a member, were not successful. On 16 February 1994, the
Respondent instituted trade-related restrictions against the Applicant.
20. Against this backdrop, on 13 September 1995, the
Parties signed the Interim Accord, providing for the establishment of
diplomatic relations between them and addressing other related issues. The
Interim Accord refers to the Applicant as “Party of the Second Part” and to the
Respondent as “Party of the First Part”, so as to avoid using any contentious
name. Under its Article 5, the Parties
“agree[d] to continue negotiations under the auspices
of the Secretary-General of the United Nations pursuant to Security Council
resolution 845 (1993) with a view to reaching agreement on the difference
described in that resolution and in Security Council resolution 817 (1993)”.
“Upon entry into force of this Interim Accord, the
Party of the First Part agrees not to object to the application by or the membership
of the Party of the Second Part 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[2] the Party of the
Second Part is to be referred to in such organization or institution
differently than in paragraph 2 of United Nations Security Council resolution
817 (1993).” (United Nations Treaty Series (UNTS), Vol. 1891, p. 7;
original English.)
II. JURISDICTION OF THE COURT AND ADMISSIBILITY OF THE APPLICATION
24. The Applicant invokes as a basis for the Court’s
jurisdiction Article 21, paragraph 2, of the Interim Accord, which reads as
follows:
“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.”
25. As already noted (see paragraph 6 above), the
Respondent advised the Court that, rather than raising objections under Article
79 of the Rules of Court, it would be addressing issues of jurisdiction and
admissibility along with the merits of the present case. The Court addresses
these issues at the outset of this Judgment.
26. The Respondent claims that the Court has no
jurisdiction to entertain the present case and that the Application is
inadmissible based on the following reasons. First, the Respondent submits that
the dispute concerns the difference over the name of the Applicant referred to
in Article 5, paragraph 1, of the Interim Accord and that, consequently, it is
excluded from the Court’s jurisdiction by virtue of the exception provided in
Article 21, paragraph 2. Secondly, the Respondent alleges that the dispute concerns
conduct attributable to NATO and its member
States
27. Moreover, the Respondent initially claimed that
its action cannot fall within the jurisdiction of the Court since it did not
violate any provision of the Interim Accord by operation of Article 22 thereof,
which, according to the Respondent, super-ordinates the obligations which
either party to the Interim Accord may have under bilateral or multilateral
agreements with other States or international organizations. Therefore, in the
Respondent’s view, its alleged conduct could not be a source of any dispute
between the Parties. The Court notes, however, that as the proceedings
progressed, the Respondent focused its arguments on Article 22 in its defence on the
merits. Accordingly, the Court will address Article 22 if and when it turns to
the merits of the case. - 15 –
1. Whether the dispute is excluded from the Court’s jurisdiction under
the terms of Article 21, paragraph 2, of the Interim Accord, read in conjunction
with Article 5, paragraph 1
28. Article
21, paragraph 2, of the Interim Accord (see paragraph 24 above) sets out that
any “difference or dispute” as to the “interpretation or implementation” of the
Interim Accord falls within the jurisdiction of the Court, with the exception
of the “difference” referred to in Article 5, paragraph 1, of the Interim
Accord, which reads as follows:
“The Parties agree to continue negotiations under the
auspices of the Secretary-General of the United Nations pursuant to Security
Council resolution 845 (1993) with a view to reaching agreement on the
difference described in that resolution and in Security Council resolution 817
(1993).”
29. With regard to this difference, as stated above,
Security Council resolution 817,
in its preambular paragraph 3, refers to “a difference
[that] has arisen over the name of the State, which needs to be resolved in the
interest of the maintenance of peaceful and good-neighbourly relations in the
region”. This resolution “[u]rges the parties to continue to co-operate with
the Co-Chairman of the Steering Committee of the International Conference on
the Former Yugoslavia in order to arrive at a speedy settlement of their difference”
(operative paragraph 1).
30. Following this resolution, the Security Council
adopted resolution 845 of 18 June 1993 which, recalling resolution 817 (1993),
also “[u]rges the parties to continue their efforts under the auspices of the
Secretary-General to arrive at a speedy settlement of the remaining issues
between them”.
*
31. According to the Respondent’s first objection to
the Court’s jurisdiction, the dispute between the Parties concerns the
difference over the Applicant’s name which is excluded from the Court’s
jurisdiction by virtue of Article 21, paragraph 2, read in conjunction with
Article 5, paragraph 1. The Respondent contends that this exception is broad in
scope and excludes from the Court’s jurisdiction not only any dispute regarding
the final resolution of the name difference, but also “any dispute the
settlement of which would prejudge, directly or by implication, the difference
over the name”.
32. The Respondent maintains that the Court cannot
address the Applicant’s claims without pronouncing on the question of the
non-resolution of the name difference since this would be the only reason upon
which the Respondent would have objected to the Applicant’s admission to NATO.
The Respondent also claims that the Court cannot rule upon the question of the
Respondent’s alleged violation of Article 11, paragraph 1, without effectively
deciding on the name difference as it would be “putting an end to any incentive
the Applicant might have had to negotiate resolution of the difference as
required by the Interim Accord and the Security Council”. - 16 –
Finally, the Respondent maintains that the actual
terms of the Bucharest Summit
33. The Applicant, for its part, argues that the
subject of the present dispute does not concern ⎯ either directly or indirectly
⎯ the difference referred to in Article 5, paragraph 1, of the Interim Accord.
The Applicant disagrees with the broad interpretation of the exception
contained in Article 21, paragraph 2, proposed by the Respondent, submitting
that it would run contrary to the very purpose of the Interim Accord, and that
Article 11, paragraph 1, would be undermined if the Respondent’s argument were
upheld. The Applicant maintains that the present dispute does not require the
Court to resolve or to express any view on the difference over the name
referred to in Article 5, paragraph 1, and is consequently not excluded by
Article 21, paragraph 2. The Applicant also claims that the statement by NATO
after the Bucharest Summit indicating that membership would be extended to the
Applicant when a solution to the name issue has been reached does not transform
the dispute before the Court into one about the name.
*
34. The Court considers that the Respondent’s broad
interpretation of the exception contained in Article 21, paragraph 2, cannot be
upheld. That provision excludes from the jurisdiction of the Court only one
kind of dispute, namely one regarding the difference referred to in Article 5,
paragraph 1. Since Article 5, paragraph 1, identifies the nature of that
difference by referring back to Security Council resolutions 817 and 845
(1993), it is to those resolutions that one must turn in order to ascertain
what the Parties intended to exclude from the jurisdiction of the Court.
35. Resolutions 817 and 845 (1993) distinguished
between the name of the Applicant, in respect of which they recognized the
existence of a difference between the Parties who were urged to resolve that
difference by negotiation (hereinafter the “definitive name”), and the provisional
designation by which the Applicant was to be referred to for all purposes
within the United Nations pending settlement of that difference. The Interim
Accord adopts the same approach and extends it to the Applicant’s application
to, and membership in, other international organizations. Thus Article 5,
paragraph 1, of the Interim Accord requires the Parties to negotiate regarding
the difference over the Applicant’s definitive name, while Article 11,
paragraph 1, imposes upon the Respondent the obligation not to object to the
Applicant’s application to, and membership in, international organizations,
unless the Applicant is to be referred to in the organization in question
differently than in resolution 817 (1993). The Court considers it to be clear
from the text of Article 21, paragraph 2, and of Article 5, paragraph 1, of the
Interim Accord, that the “difference” referred to therein and which the Parties
intended to exclude from the jurisdiction of the Court is the difference over
the definitive name of the Applicant and not disputes regarding the - 17 –
Respondent’s obligation under Article 11, paragraph 1.
If the Parties had intended to entrust to the Court only the limited jurisdiction
suggested by the Respondent, they could have expressly excluded the
subject-matter of Article 11, paragraph 1, from the grant of jurisdiction in
Article 21, paragraph 2.
36. Not only does the plain meaning of the text of
Article 21, paragraph 2, of the Interim Accord afford no support to the broad
interpretation advanced by the Respondent, the purpose of the Interim Accord as
a whole also points away from such an interpretation. In the Court’s view, one
of the main objectives underpinning the Interim Accord was to stabilize the
relations between the Parties pending the resolution of the name difference.
The broad interpretation of the exception under Article 21, paragraph 2, of the
Interim Accord suggested by the Respondent would result in the Court being
unable to entertain many disputes relating to the interpretation or
implementation of the Interim Accord itself. As such, the name difference may
be related, to some extent, to disputes the Parties may eventually have as to
the interpretation or implementation of the Interim Accord.
37. The fact that there is a relationship between the
dispute submitted to the Court and the name difference does not suffice to
remove that dispute from the Court’s jurisdiction. The question of the alleged
violation of the obligation set out in Article 11, paragraph 1, is distinct from
the issue of which name should be agreed upon at the end of the negotiations
between the Parties under the auspices of the United Nations. Only if the Court
were called upon to resolve specifically the name difference, or to express any
views on this particular matter, would the exception under Article 21,
paragraph 2, come into play. This is not the situation facing the Court in the
present case. The exception contained in Article 21, paragraph 2, consequently
does not apply to the present dispute between the Parties which concerns the
Applicant’s allegation that the Respondent breached its obligation under
Article 11, paragraph 1, of the Interim Accord, as well as the Respondent’s
justifications.
38. Accordingly, the Respondent’s objection to the
Court’s jurisdiction based on the exception contained in Article 21, paragraph
2, of the Interim Accord cannot be upheld.
2. Whether the dispute relates to the conduct of NATO
or its member States
39. By way of
objection to the Court’s jurisdiction in the present case and the admissibility
of the Application, the Respondent claims that the object of the Application
relates to the conduct of NATO and its other member States, because the decision
to defer the invitation to the Applicant to join the Organization was a
collective decision taken by NATO “unanimously” at the Bucharest Summit, and
not an individual or autonomous decision by the Respondent. Thus, it is argued
that the act complained of is attributable to NATO as a whole and not to the
Respondent alone. Moreover, in the view of the Respondent, even if the decision
to defer the Applicant’s admission to NATO could be attributed to the
Respondent, the Court could not decide on this point without also deciding on
the responsibility of NATO or its other members, over whom it has no jurisdiction.
Accordingly, the Respondent argues that the interests of a third party would
form the subject-matter of any decision the Court may take. The Respondent
further contends that, in accordance with the Monetary Gold case law,
the Court “will not exercise jurisdiction where the legal interests of an
absent third party form ‘the very subject matter’ of the jurisdiction”. - 18 –
40. The
Applicant, for its part, argues that its Application is directed solely at the
Respondent’s conduct and not at a decision by NATO or actions of other NATO
member States. The Applicant claims that the Respondent’s conduct is distinct
from any decision of NATO. It contends that the Court does not need to express
any view on the legality of NATO’s decision to defer an invitation to the
Applicant to join the Alliance
*
42. By the terms of the Application, the Applicant’s
claim is solely based on the allegation that the Respondent has violated its
obligation under Article 11, paragraph 1, of the Interim Accord, which refers
specifically to the Respondent’s conduct, irrespective of the consequences it
may have on the actual final decision of a given organization as to the
Applicant’s membership. The Court notes that the Applicant is challenging the Respondent’s
conduct in the period prior to the taking of the decision at the end of the Bucharest Summit
43. Similarly, the Court does not need to determine
the responsibility of NATO or of its member States in order to assess the
conduct of the Respondent. In this respect, the Respondent’s argument that the
rights and interests of a third party (which it identifies as NATO and/or the
member States of NATO) would form the subject-matter of any decision which the
Court might take, with the result that the Court should decline to hear the
case under the principle developed in the case of the Monetary Gold Removed
from Rome in 1943, is misplaced. The present case can be distinguished from
the Monetary Gold case since the Respondent’s conduct can be assessed
independently of NATO’s decision, and the rights and obligations of NATO and
its member States other than Greece do not form the subject-matter of the
decision of the Court on the merits of the case (Monetary Gold Removed from
Rome in 1943 (Italy v. France; United Kingdom and United States of
America) Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19; East
Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.
105, para. 34); nor would the assessment of their responsibility be a
“prerequisite for the determination - 19 –
of the responsibility” of the Respondent (Certain
Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, I.C.J. Reports 1992, p. 261, para. 55). Therefore, the Court
considers that the conduct forming the object of the Application is the
Respondent’s alleged objection to the Applicant’s admission to NATO, and that,
on the merits, the Court will only have to determine whether or not that
conduct demonstrates that the Respondent failed to comply with its obligations
under the Interim Accord, irrespective of NATO’s final decision on the Applicant’s
membership application.
44. The Court accordingly finds that the Respondent’s
objection based on the argument that the dispute relates to conduct
attributable to NATO and its member States or that NATO and its member States
3. Whether the Court’s Judgment would be incapable of
effective application
45. The
Respondent argues that a Court ruling in the present case would be devoid of
any effect because the Court’s Judgment would not be able to annul or amend
NATO’s decision or change the conditions of admission contained therein. It
further contends that even if the Court were to find in the Applicant’s favour,
its Judgment would have no practical effect concerning the Applicant’s
admission to NATO. Accordingly, the Respondent claims that the Court should
refuse to exercise its jurisdiction in order to preserve the integrity of its
judicial function.
46. The Applicant, for its part, submits that it is
seeking a declaration by the Court that the Respondent’s conduct violated the
Interim Accord, which in its view represents a legitimate request in a judicial
procedure. The Applicant argues that it is “only by misrepresenting the object
of the Application that the respondent State can claim that a judgment of the
Court would have no concrete effect”. By contrast, the Applicant claims that a
judgment of the Court would have a concrete legal effect, and in particular, it
“would result in the applicant State once more being placed in the position of
candidate for NATO membership without running the risk of once again being
blocked by an objection on grounds not covered in the Interim Accord”
(emphasis in the original).
*
47. As established in the Court’s case law, an
essential element for the proper discharge of the Court’s judicial function is
that its judgments “must have some practical consequence in the sense that
[they] can affect existing legal rights or obligations of the parties, thus
removing uncertainty from their legal relations” (Northern Cameroons
(Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1963, p. 34).
“(i) to reject the
Respondent’s objections as to the jurisdiction of the Court and the
admissibility of the Applicant’s claims; - 20 –
(ii) to adjudge and
declare that the Respondent, through its State organs and agents, has violated
its obligations under Article 11, paragraph 1, of the Interim Accord; and
(iii) to order that
the Respondent immediately take all necessary steps to comply with its
obligations under Article 11, paragraph 1, of the Interim Accord, and to cease
and desist from objecting in any way, whether directly or indirectly, to the
Applicant’s membership of the North Atlantic Treaty Organization and/or of any
other ‘international, multilateral and regional organizations and institutions’
of which the Respondent is a member, in circumstances where the Applicant is to
be referred to in such organization or institution by the designation provided
for in paragraph 2 of United Nations Security Council resolution 817 (1993).”
50. While the Respondent is correct that a ruling from
the Court could not modify NATO’s decision in the Bucharest
Summit member States Bucharest Summit or to
modify the conditions for membership in the Alliance
51. The Northern Cameroons
case is to be distinguished from the present case. The Court recalls that,
in the former case, Cameroon, in its Application, asked the Court to “adjudge
and declare . . . that the United Kingdom has, in the application of the
Trusteeship Agreement of 13 December 1946, failed to respect certain obligations
directly or indirectly flowing therefrom”, and that, by the time the case was
argued and decided in 1963, the Agreement had already been terminated. By contrast,
in the present case, Article 11, paragraph 1, of the Interim Accord remains
binding; the obligation stated therein is a continuing one and the Applicant’s
NATO membership application remains in place. A judgment by the Court would
have “continuing applicability” for there is an “opportunity for a future act
of interpretation or application of that treaty in accordance with any judgment
the Court may render” (Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, pp.
37-38). - 21 –
52. Similarly, the Respondent’s reliance on the Nuclear
Tests cases does not support its position. In these cases, the Court
interpreted the Applications instituting proceedings before it, filed by Australia and New
Zealand , as concerning future testing by France
53. The present dispute is clearly different from the
latter cases: the Respondent has not taken any action which could be seen as
settling the dispute over the alleged violation of Article 11, paragraph 1.
Furthermore, a judgment of the Court in the present case would not be without
object because it would affect existing rights and obligations of the Parties
under the Interim Accord and would be capable of being applied effectively by
them.
54. The Court accordingly finds that the Respondent’s
objection to the admissibility of the Application based on the alleged lack of
effect of the Court’s Judgment cannot be upheld.
4. Whether the Court’s Judgment would interfere with
ongoing diplomatic negotiations
55. The
Respondent contends that if the Court were to exercise its jurisdiction, it
would interfere with the diplomatic process envisaged by the Security Council
in resolution 817 (1993) and this would be contrary to the Court’s judicial
function. It argues that a judgment by the Court in favour of the Applicant
“would judicially seal a unilateral practice of imposing a disputed name and
would thus run contrary to Security Council resolutions 817 (1993) and 845
(1993), requiring the Parties to reach a negotiated solution on this difference”.
The Respondent thus submits that, on the basis of judicial propriety, the Court
should decline to exercise its jurisdiction.
*
57. Regarding the issue of whether the judicial
settlement of disputes by the Court is incompatible with ongoing diplomatic
negotiations, the Court has made clear that “the fact that negotiations are
being actively pursued during the present proceedings is not, legally, - 22 –
any obstacle to the exercise by the Court of its
judicial function” (Aegean Sea Continental Shelf (Greece v. Turkey),
Judgment, I.C.J. Reports 1978, p. 12, para. 29; see also United States
Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment, I.C.J. Reports 1980, p. 20, para. 37).
58. As a judicial organ, the Court has to establish
“first, that the dispute before it is a legal dispute,
in the sense of a dispute capable of being settled by the application of principles
and rules of international law, and secondly, that the Court has jurisdiction
to deal with it, and that that jurisdiction is not fettered by any circumstance
rendering the application inadmissible” (Border and Transborder Armed
Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 91, para. 52).
The question
put before the Court, namely, whether the Respondent’s conduct is a breach of
Article 11, paragraph 1, of the Interim Accord, is a legal question pertaining
to the interpretation and implementation of a provision of that Accord. As
stated above, the disagreement between the Parties amounts to a legal dispute
which is not excluded from the Court’s jurisdiction. Therefore, by deciding on
the interpretation and implementation of a provision of the Interim Accord, a
task which the Parties agreed to submit to the Court’s jurisdiction under
Article 21, paragraph 2, the Court would be faithfully discharging its judicial
function.
59. The Parties included a provision conferring
jurisdiction on the Court (Art. 21) in an agreement that also required them to
continue negotiations on the dispute over the name of the Applicant (Art. 5,
para. 1). Had the Parties considered that a future ruling by the Court would interfere
with diplomatic negotiations mandated by the Security Council, they would not
have agreed to refer to it disputes concerning the interpretation or
implementation of the Interim Accord.
60. Accordingly, the Respondent’s objection to the
admissibility of the Application based on the alleged interference of the
Court’s Judgment with ongoing diplomatic negotiations mandated by the Security
Council cannot be upheld.
5. Conclusion concerning the jurisdiction of the Court
over the present dispute and the admissibility of the Application
III.WHETHER THE RESPONDENT FAILED TO COMPLY WITH THE
OBLIGATION UNDER ARTICLE 11, PARAGRAPH 1, OF THE INTERIM ACCORD
62. The Court
turns now to the merits of the case. Article 11, paragraph 1, of the Interim
Accord provides:
“the Party of the First Part [the Respondent] agrees
not to object to the application by or the membership of the Party of the
Second Part [the Applicant] 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 United
Nations Security Council resolution 817 (1993)”.
The Parties
agree that this provision imposes on the Respondent an obligation not to object
to the admission of the Applicant to international organizations of which the
Respondent is a member, including NATO, subject to the exception in the second
clause of paragraph 1.
63. The Applicant contends that the Respondent, prior
to, and during, the Bucharest Summit, failed to comply with the obligation not
to object contained in the first clause of Article 11, paragraph 1.
64. The Respondent maintains that it did not object to
the Applicant’s admission to NATO. As an alternative, the Respondent argues
that any objection attributable to it at the Bucharest
Summit 1. In
support of this position, the Respondent asserts that the Applicant would have
been referred to in NATO “differently than in” paragraph 2 of resolution 817. In addition, the Respondent
argues that, even if it is found to have objected within the meaning of Article
11, paragraph 1, such an objection would not have been inconsistent with the
Interim Accord because of the operation of Article 22 of the Interim Accord.
65. The Applicant counters with the view that the
Respondent’s objection does not fall within the scope of the second clause of
Article 11, paragraph 1, of the Interim Accord and that the obligation not to
object is not obviated by Article 22.
66. The Court will first address the two clauses of
Article 11, paragraph 1, and then will consider the effect of Article 22. - 24
–
1. The Respondent’s obligation under Article 11, paragraph 1, of the
Interim Accord not to object to the Applicant’s admission to NATO
A. The meaning of the first clause of Article 11,
paragraph 1, of the Interim Accord
67. The first
clause of Article 11, paragraph 1, of the Interim Accord obliges the Respondent
not to object to “the application by or membership of” the Applicant in NATO.
The Court notes that the Parties agree that the obligation “not to object” does
not require the Respondent actively to support the Applicant’s admission to
international organizations. In addition, the Parties agree that the obligation
“not to object” is not an obligation of result, but rather one of conduct.
68. The interpretations advanced by the Parties
diverge, however, in significant respects. The Applicant asserts that in its
ordinary meaning, interpreted in light of the object and purpose of the Interim
Accord, the phrase “not to object” should be read broadly to encompass any
implicit or explicit act or expression of disapproval or opposition, in word or
deed, to the Applicant’s application to or membership in an organization or
institution. In the Applicant’s view, the act of objecting is not limited to
casting a negative vote. Rather, it could include any act or omission designed
to oppose or to prevent a consensus decision at an international organization
(where such consensus is necessary for the Applicant to secure membership) or
to inform other members of an international organization or institution that
the Respondent will not permit such a consensus decision to be reached. In
particular, the Applicant notes that NATO members are admitted on the basis of
unanimity of NATO member States, in accordance with Article 10 of the North Atlantic Treaty. That provision states, in relevant
part, as follows:
“The Parties may, by unanimous agreement, invite any
other European State
in a position to further the principles of this Treaty and to contribute to the
security of the North Atlantic area to accede
to this Treaty.” (North Atlantic Treaty, 4 April 1949, Art. 10, UNTS,
Vol. 34, p. 248.)
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.
* - 25 –
70. The Court does
not accept the general proposition advanced by the Respondent that special
rules of interpretation should apply when the Court is examining a treaty that
limits a right that a party would otherwise have. Turning to the Respondent’s
specific arguments in regard to the first clause of Article 11, paragraph 1,
the Court observes that nothing in the text of that clause limits the Respondent’s
obligation not to object to organizations that use a voting procedure to decide
on the admission of new members. There is no indication that the Parties
intended to exclude from Article 11, paragraph 1, organizations like NATO that
follow procedures that do not require a vote. Moreover, the question before the
Court is not whether the decision taken by NATO at the Bucharest
Summit
71. The Court also observes that the Respondent did
not take the position that any objection by it at the Bucharest
Summit
B. Whether the Respondent “objected” to the
Applicant’s admission to NATO
72. The Court
now turns to the evidence submitted to it by the Parties, in order to decide whether
the record supports the Applicant’s contention that the Respondent objected to
the Applicant’s membership in NATO. In this regard, the Court recalls that, in
general, it is the duty of the party that asserts certain facts to establish
the existence of such facts (Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment of 20 April 2010, para. 162; Maritime Delimitation
in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009,
p. 86, para. 68). Thus, the Applicant bears the burden of establishing the
facts that support its allegation that the Respondent failed to comply with its
obligation under the Interim Accord.
73. To support the position that the Respondent
objected to its admission to NATO, the Applicant refers the Court to diplomatic
correspondence of the Respondent before and after the Bucharest
Summit Bucharest Summit
74. The Applicant referred to diplomatic
correspondence from the Respondent to other NATO member States exchanged prior
to the Bucharest Summit
between the Parties pursuant to resolution 817 and
states that “[t]he satisfactory conclusion of the said negotiations is a sine
qua non, in order to enable Greece
to continue to support the Euro-atlantic aspirations of Skopje Greece
75. The Applicant also introduced evidence showing
that, during the same period, the Respondent’s Prime Minister and Foreign
Minister stated publicly on a number of occasions that the Respondent would oppose
the extension of an invitation to the Applicant to join NATO at the Bucharest
Summit unless the name issue was resolved. On 22 February 2008, the
Respondent’s Prime Minister, speaking at a session of the Respondent’s
Parliament, made the following statement with regard to the difference between
the Parties over the name: “[W]ithout a mutually acceptable solution allied
relations cannot be established, there cannot be an invitation to the
neighbouring country to join the Alliance. No solution means — no invitation.”
The record indicates that the Prime Minister reiterated this position publicly
on at least three occasions in March 2008.
76. The Respondent’s Foreign Minister also explained
her Government’s position prior to the Bucharest
Summit 2008, in a speech to the
governing party’s Parliamentary Group, she stated that until a solution is
reached, “we cannot, of course, consent to addressing an invitation to our
neighbouring state to join NATO. No solution ⎯ no invitation. We said it, we
mean it, and everyone knows it.”
77. The Applicant also points to the statement of the
Respondent’s Prime Minister, made on 3 April 2008 at the close of the Bucharest Summit
“It was unanimously decided that Albania and Croatia Greece
I had said to everyone ⎯ in every possible tone and in
every direction ⎯ that ‘a failure to solve the name issue will impede their
invitation’ to join the Alliance Skopje
The Applicant
notes that this characterization of events at the Summit
“At the recent NATO Summit Meeting in Bucharest and in
view of the failure to reach a viable and definitive solution to the name
issue, Greece was not able to consent to the Former Yugoslav Republic of
Macedonia being invited to join the North Atlantic Alliance.” - 27 –
The Applicant asserts that the Respondent sent similar
letters to all other Members of the United Nations Security Council and to the
United Nations Secretary-General. The Respondent does not refute this
contention.
79. On 1 June 2008, in an aide-memoire sent by the Respondent
to the Organization of American States and its member States, the Respondent
made the following statement:
“At the NATO’s Summit
in Bucharest in April 2008, allied leaders, upon
Greece ’s proposal, agreed to
postpone an invitation to FYROM to join the Alliance
80. The Respondent stresses the absence of a formal
voting mechanism within NATO. For that reason, the Respondent asserts that,
irrespective of the statements by its government officials, there is no means
by which a NATO member State Bucharest Summit Greece did not
veto the FYROM’s accession to NATO . . . It was a collective decision made
on behalf of the Alliance
*
82. Moreover, the Court cannot accept that the
Respondent’s statements regarding the admission of the Applicant were not
objections, but were merely observations aimed at calling the attention of
other NATO member States to concerns about the Applicant’s eligibility to join
NATO. The record makes abundantly clear that the Respondent went beyond such
observations to oppose the Applicant’s admission to NATO on the ground that the
difference over the name had not been resolved. - 28 –
83. The Court therefore concludes that the Respondent
objected to the Applicant’s admission to NATO, within the meaning of the first
clause of Article 11, paragraph 1, of the Interim Accord.
2. The effect of the second clause of Article 11,
paragraph 1, of the Interim Accord
84. The Court
turns now to the question whether the Respondent’s objection to the Applicant’s
admission to NATO at the Bucharest Summit fell within the exception contained
in the second clause of Article 11, paragraph 1, of the Interim Accord.
86. The Applicant maintains that the exception in the
second clause of Article 11, paragraph 1, applies only if the Applicant is to
be referred to by the organization itself as something other than “the former
Yugoslav Republic of Macedonia”. In its view, resolution 817 contemplated that
the Applicant would refer to itself by its constitutional name (“Republic of Macedonia
87. The Respondent is of the view that the Applicant’s
intention to refer to itself in NATO by its constitutional name, as well as the
possibility that third States may refer to the Applicant by its constitutional
name, triggers the exception in the second clause of Article 11, paragraph 1,
and thus permitted the Respondent to object to the Applicant’s admission to
NATO. In the Respondent’s view, resolution 817 requires the Applicant to refer
to itself as the “former
Yugoslav Republic of Macedonia
Respondent engaged in a “general practice of protests”
in regard to use of the Applicant’s constitutional name, before and after the
conclusion of the Interim Accord. To support this assertion, the Respondent
submits evidence of eight instances during the period between the adoption of
resolution 817 and the conclusion of the Interim Accord in which the Respondent
claimed that the Applicant’s reference to itself by the name “Republic of Macedonia
88. With respect to the text of Article 11, paragraph
1, the Respondent points out that the second clause of that Article applies
when the Applicant is to be referred to “in” an organization, not only when the
Applicant is to be referred to “by” the organization in a particular way.
Moreover, the Respondent argues that the phrase “if and to the extent that” in
the second clause means that Article 11, paragraph 1, is not merely an “on/off
switch”. Instead, in the Respondent’s view, the phrase “to the extent” makes
clear that the Respondent may object in response to a limited or occasional use
of a name other than the provisional designation (such as when the Applicant
“instigates the use” of a different name by the officers of an organization or
by other member States of the organization). In support of this interpretation
the Respondent asserts that the phrase “if and to the extent that” would lack effet
utile if it were not interpreted as the Respondent suggests, because this
would render the words “to the extent that” without legal content.
*
89. The Court notes that the Parties agree on the
interpretation of the second clause of Article 11, paragraph 1, in one circumstance: the
exception contained in the second clause permits the Respondent to object to
the Applicant’s admission to an organization if the Applicant is to be referred
to by the organization itself other than by the provisional designation. The
Respondent also asserts that it has the right to object in two other circumstances:
first, if the Applicant will refer to itself in the organization using its
constitutional name and, secondly, if third States will refer to the Applicant
in the organization by its constitutional name. The Applicant disagrees with
both of these assertions.
90. Although the Parties articulate divergent views on
the interpretation of the clause, i.e., whether the Respondent may object if
third States will refer to the Applicant using its constitutional name, the
Respondent does not pursue, as a factual matter, the position that any
objection at the Bucharest Summit was made in response to the prospect that
third States would refer to the Applicant in NATO using its constitutional
name. Thus, in the present case, the Court need not decide whether the second
clause would permit an objection based on the prospect that third States would
use the Applicant’s constitutional name in NATO. On the other hand, the Parties
agree that the Applicant intended to refer to itself within NATO, once
admitted, by its constitutional name, not by the provisional designation set
forth in resolution 817. Thus, the Court must decide whether the second clause
of Article 11, paragraph 1, permitted the Respondent to object in that
circumstance. - 30 –
91. The Court will interpret the second clause of
Article 11, paragraph 1, of the Interim Accord, in accordance with Articles 31
and 32 of the Vienna Convention on the Law of Treaties of 1969 (hereinafter the
“1969 Vienna Convention”), to which both the Applicant and the Respondent are
parties. The Court will therefore begin by considering the ordinary meaning to
be given to the terms of the treaty in their context and in light of its object
and purpose.
92. The Court observes that the Parties formulated the
second clause using the passive voice: “if and to the extent the [Applicant] is
to be referred to . . . differently than in” paragraph 2 of resolution 817. The
use of the passive voice is difficult to reconcile with the Respondent’s view
that the clause covers not only how the organization is to refer to the Applicant
but also the way that the Applicant is to refer to itself. As to the inclusion
of the phrase “to the extent”, the Court recalls the Respondent’s contention
that the phrase lacks legal effect (“effet utile”) unless it is interpreted to
mean that the Respondent’s right to object is triggered not only by the
anticipated practice of the organization, but also by the use of the
constitutional name by others. The Court cannot agree that the phrase would
have legal effect only if interpreted as the Respondent suggests. The phrase
would still have a legal significance, for example, if it were interpreted to
mean that the Respondent has a right to object for so long as the organization
refers to the Applicant by the constitutional name. Accordingly, the Court
rejects the Respondent’s contention that the phrase “to the extent” is without
legal effect unless the second clause of Article 11, paragraph 1, permits the
Respondent to object to admission to an organization if the Applicant is to
refer to itself in the organization by its constitutional name.
93. As for the phrase “to be referred to . . . differently
than in paragraph 2 of United Nations Security Council resolution 817 (1993)”,
it will be recalled that the relevant text of that resolution recommends that
the Applicant be admitted to membership in the United Nations, being “provisionally
referred to for all purposes within the United Nations as ‘the former Yugoslav
Republic of Macedonia’” pending settlement of the difference over the name.
Thus, a central question for the Court is whether the prospect that the
Applicant would refer to itself in NATO by its constitutional name means that
the Applicant is “to be referred to . . . differently than in paragraph 2 of
Security Council resolution 817 (1993)”. The Court therefore examines the text
of resolution 817 in
relation to the second clause of Article 11, paragraph 1. That resolution was
adopted pursuant to Article 4, paragraph 2, of the Charter of the United Nations,
which states that admission of a State to membership in the Organization is
effected by a decision of the General Assembly upon the recommendation of the
Security Council. Thus, it could be argued that paragraph 2 of resolution 817
is directed primarily to another organ of the United Nations, namely the
General Assembly, rather than to individual Member States. On the other hand,
the wording of paragraph 2 of resolution 817 is broad ⎯ “for all purposes” ⎯
and thus could be read to extend to the conduct of Member States, including the
Applicant, within the United Nations.
94. Bearing in mind these observations regarding the
text of the second clause of Article 11, paragraph 1, and of resolution 817,
the Court will now proceed to ascertain the ordinary meaning of the second
clause of Article 11, paragraph 1,
in its context and in light of the treaty’s object and
purpose. To this end, the Court will examine other provisions of the treaty and
a related and contemporaneous agreement between the Parties. - 31 -
95. Article 1,
paragraph 1, of the Interim Accord, provides that the Respondent will recognize
the Applicant as an “independent and sovereign state” and that the Respondent
will refer to it by a provisional designation (as “the former Yugoslav Republic of Macedonia
96. The Court also contrasts the wording of the second
clause of Article 11, paragraph 1, to other provisions of the treaty that
impose express limitations on the Applicant or on both Parties. In Article 7,
paragraph 2, for example, the Applicant agrees to “cease” the use of the symbol
that it had previously used on its flag. This provision thus contains a
requirement that the Applicant change its existing conduct. Additional
provisions under the general heading of “friendly relations and
confidence-building measures” ⎯ namely, the three paragraphs of Article 6 ⎯ are
also framed entirely as commitments by the Applicant. By contrast, although the
Parties were aware of the Applicant’s consistent use of its constitutional name
in the United Nations, the Parties drafted the second clause of Article 11,
paragraph 1, without using language that calls for a change in the Applicant’s
conduct. If the Parties had wanted the Interim Accord to mandate a change in
the Applicant’s use of its constitutional name in international organizations,
they could have included an explicit obligation to that effect as they did with
the corresponding obligations in Article 6 and Article 7, paragraph 2.
97. The significance of this comparison between the
second clause of Article 11, paragraph 1, and other provisions of the Interim
Accord is underscored by consideration of the overall structure of the treaty
and the treaty’s object and purpose. While each Party emphasizes different aspects
of the treaty in describing its object and purpose, they appear to hold a
common view that the treaty was a comprehensive exchange with the overall
object and purpose of: first, providing for the normalization of the Parties’
relations (bilaterally and in international organizations); secondly, requiring
good-faith negotiations regarding the difference over the name; and, thirdly,
agreeing on what the Respondent called “assurances related to particular
circumstances”, e.g., provisions governing the use of certain symbols and requiring
effective measures to prohibit political interference, hostile activities and
negative propaganda. Viewed together, the two clauses of Article 11, paragraph
1, advance the first of these objects by specifying the conditions under which
the Respondent is required to end its practice of blocking the Applicant’s
admission to organizations. Another component of the exchange ⎯ the provisions
containing assurances, including those that impose obligations on the Applicant
to change its conduct ⎯ appears elsewhere in the treaty. In light of the structure
and the object and purpose of the treaty, it appears to the Court that the Parties
would not have imposed a significant new constraint on the Applicant ⎯ that is,
to constrain its consistent practice of calling itself by its constitutional
name ⎯ by mere implication in Article 11, paragraph 1. Thus, the Court
concludes that the structure and the object and purpose of the treaty support
the position taken by the Applicant. - 32 –
98. Taken together, therefore, the text of the second
clause of Article 11, paragraph 1, when read in context and in light of the
object and purpose of the treaty, cannot be interpreted to permit the
Respondent to object to the Applicant’s admission to or membership in an
organization because of the prospect that the Applicant would refer to itself
in that organization using its constitutional name.
99. The Court next examines the subsequent practice of
the Parties in the application of Article 11, paragraph 1, of the Interim
Accord, in accordance with Article 31, paragraph 3 (b), of the 1969
Vienna Convention. The Applicant asserts that between the conclusion of the
Interim Accord and the Bucharest Summit
100. The Court also refers to evidence of the Parties’
practice in respect of NATO prior to the Bucharest
Summit Bucharest Summit
101. Based on the foregoing analysis, the Court
concludes that the practice of the Parties in implementing the Interim Accord
supports the Court’s prior conclusions (see paragraph 98) and thus that the
second clause of Article 11, paragraph 1, does not permit the Respondent to
object to the Applicant’s admission to an organization based on the prospect
that the Applicant is to refer to itself in such organization with its constitutional
name.
102. The Court recalls that the Parties introduced
extensive evidence related to the travaux préparatoires of the Interim
Accord and of resolution 817.
In view of the conclusions stated above (see paragraphs
98 and 101), however, the Court considers that it is not necessary to - 33 –
address this additional evidence. The Court also
recalls that each Party referred to additional evidence regarding the use of
the Applicant’s constitutional name, beyond the evidence related to the
subsequent practice under the Interim Accord, which is analysed above. This
evidence does not bear directly on the question whether the Interim Accord
permits the Respondent to object to the Applicant’s admission to or membership
in an organization based on the Applicant’s self-reference by its constitutional
name, and accordingly the Court does not address it.
*
3. Article 22 of the Interim Accord
104. Article
22 of the Interim Accord provides:
“This Interim Accord is not directed against any other
State or entity and it 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 international organizations.”
105. The Applicant maintains that Article 22 “is
simply a factual statement”. It “does not address the rights and duties of the
Respondent: it merely declares that the Interim Accord as a whole does not
infringe on the rights and duties of third States or other entities”. According
to the Applicant, Article 22 expresses “the rule set forth in Article 34 of the
1969 Vienna
106. The Respondent takes the position that, even
assuming that the Court were to conclude that the Respondent had objected to
the Applicant’s admission to NATO, in contravention of Article 11, paragraph 1,
such objection would not breach the Interim Accord, because of the effect of
Article 22. In
the written proceedings, the Respondent construed Article 22 to mean that both
the rights and the duties of a party to the Interim Accord under a prior
agreement prevail over that party’s obligations in the Interim Accord. In particular,
the Respondent argued that it was free to object to the Applicant’s admission
to NATO because “any rights of Greece
obligations owed to NATO or to the other NATO member
States must prevail in case of a conflict” with the restriction on the
Respondent’s right to object under Article 11, paragraph 1. The Respondent
relied on its right under Article 10 of the North Atlantic
Treaty to consent (or not) to the admission of a State to NATO and its “duty to
engage actively and promptly in discussions of concern to the Organization”.
The Respondent argues that Article 22 “is a legal provision” (emphasis
in the original) and not “simply a factual statement” and that the Applicant’s
interpretation of Article 22 ⎯ that it restates the rule in Article 34 of the
[1969 Vienna
*
108. The Court first observes that if Article 22 of
the Interim Accord is interpreted as a purely declaratory provision, as the
Applicant suggests, that Article could under no circumstances provide a basis
for the Respondent’s objection.
109. Turning to the Respondent’s interpretation of
Article 22, the Court notes the breadth of the Respondent’s original contention
that its “rights” under a prior agreement (in addition to its “duties”) take
precedence over its obligation not to object to admission by the Applicant to
an organization within the terms of Article 11, paragraph 1. That
interpretation of Article 22, if accepted, would vitiate that obligation,
because the Respondent normally can be expected to have a “right” under prior
agreements with third States to express a view on membership decisions. The
Court, considering that the Parties did not intend Article 22 to render meaningless
the first clause of Article 11, paragraph 1, is therefore unable to accept the
broad interpretation originally advanced by the Respondent. In this regard, the
Court notes that the Court of Justice of the European Communities has rejected
a similar argument. In particular, that court has interpreted a provision of
the Treaty establishing the European Economic Community
which states that “rights and obligations” under prior agreements “shall not be
affected by” the provisions of the treaty. The - 35 - European Court has
concluded that this language refers to the “rights” of third countries and the
“obligations” of treaty parties, respectively (see Case 10/61 Commission v.
Italy [1962] ECR, p. 10; see also Case C-249/06 Commission v. Sweden
[2009] ECR I-1348, para. 34).
110. The Court thus turns to the Respondent’s narrower
interpretation of Article 22, i.e., that “duties” under a prior treaty would
take precedence over obligations in the Interim Accord. Accepting, arguendo,
that narrower interpretation, the next step in the Court’s analysis would be to
evaluate whether the Respondent has duties under the North Atlantic Treaty with
which it cannot comply without being in breach of its obligation not to object
to the Applicant’s admission to NATO. Thus, to evaluate the effect of Article
22, if interpreted in the manner suggested by the Respondent in the narrower
and later version of its argument, the Court must also examine whether the
Respondent has established that the North Atlantic Treaty imposed a duty on it
to object to the Applicant’s admission to NATO.
111. The Respondent offers no persuasive argument that
any provision of the North Atlantic Treaty
required it to object to the Applicant’s membership. Instead the Respondent
attempts to convert a general “right” to take a position on membership
decisions into a “duty” by asserting a “duty” to exercise judgment as to
membership decisions that frees the Respondent from its obligation not to object
to the Applicant’s admission to an organization. This argument suffers from the
same deficiency as the broader interpretation of Article 22 initially advanced
by the Respondent, namely, that it would erase the value of the first clause of
Article 11, paragraph 1. Thus, the Court concludes that the Respondent has not
demonstrated that a requirement under the North Atlantic
Treaty compelled it to object to the admission of the Applicant to NATO.
112. As a result of the foregoing analysis, the Court
concludes that the Respondent’s attempt to rely on Article 22 is unsuccessful.
Accordingly, the Court need not decide which of the two Parties’
interpretations is the correct one.
4. Conclusion concerning whether the Respondent failed
to comply with Article 11, paragraph 1, of the Interim Accord
113. Thus,
the Court concludes that the Respondent failed to comply with its obligation
under Article 11, paragraph 1, of the Interim Accord by objecting to the
Applicant’s admission to NATO at the Bucharest Summit. The prospect that the
Applicant would refer to itself in NATO using its constitutional name did not
render that objection lawful under the exception contained in the second clause
of Article 11, paragraph 1. In
the circumstances of the present case, Article 22 of the Interim Accord does
not provide a basis for the Respondent to make an objection that is inconsistent
with Article 11, paragraph 1.
IV. ADDITIONAL JUSTIFICATIONS INVOKED BY THE RESPONDENT
114. As an
alternative to its main argument that the Respondent complied with its
obligations under the Interim Accord, the Respondent contends that the wrongfulness
of any objection to the admission of the Applicant to NATO is precluded by the
doctrine of - 36 –
exceptio non adimpleti contractus. The Respondent also suggests that any failure to
comply with its obligations under the Interim Accord could be justified both as
a response to a material breach of a treaty and as a countermeasure under the
law of State responsibility. The Court will begin by summarizing the Parties’
arguments with respect to those three additional justifications.
1. The Parties’ arguments with regard to the
Respondent’s additional justifications
A. The Parties’ arguments with regard to the exceptio
non adimpleti contractus
115. The
Respondent states that the exceptio non adimpleti contractus is a general
principle of international law that permits the Respondent “to withhold the
execution of its own obligations which are reciprocal to those not performed by
[the Applicant]”. According to the Respondent, the exceptio would apply
in respect of the failure of one party to perform a “fundamental provision” of
the Interim Accord. In the view of the Respondent, the exceptio permits
a State suffering breaches of treaty commitments by another State to respond by
unilaterally suspending or terminating its own corresponding obligations. In
particular, the Respondent contends that its obligation not to object (under
Article 11, paragraph 1) is linked in a synallagmatic relationship with the
obligations of the Applicant in Articles 5, 6, 7 and 11 of the Interim Accord,
and thus that under the exceptio, breaches by the Applicant of these
obligations preclude the wrongfulness of any non-performance by the Respondent
of its obligation not to object to the Applicant’s admission to NATO.
116. The Respondent also states that “the conditions
triggering the exception of non-performance are different from and less rigid
than the conditions for suspending a treaty or precluding wrongfulness by way
of countermeasures”. According to the Respondent, the exceptio “does not
have to be notified or proven beforehand . . . There are simply no procedural
requirements to the exercise of the staying of the performance through the
mechanism of the exceptio.” The Respondent also points to several situations
in which it maintains that it complained to the Applicant about the Applicant’s
alleged failure to comply with its obligations under the Interim Accord.
117. The Applicant asserts that the Respondent has
failed to demonstrate that the exceptio is a general principle of
international law. The Applicant also argues that Article 60 of the 1969 Vienna
Convention provides a complete set of rules and procedures governing responses
to material breaches under the law of treaties and that the exceptio is
not recognized as justifying non-performance under the law of State
responsibility. The Applicant further disputes the Respondent’s contention that
the Applicant’s obligations under Articles 5, 6 and 7 of the Interim Accord are
synallagmatic with the Respondent’s obligation not to object in Article 11, paragraph
1. The Applicant also takes the position that the Respondent did not raise the
breaches upon which it now relies until after the Respondent objected to the
Applicant’s admission to NATO.
B. The Parties’ arguments with regard to a response to
material breach
118. The
Respondent maintains that any disregard of its obligations under the Interim
Accord could be justified as a response to a material breach of a treaty. The
Respondent initially stated that it was not seeking to suspend the Interim
Accord in whole or in part pursuant to the - 37 –
1969 Vienna Convention, but later took the position that
partial suspension of the Interim Accord is “justified” under Article 60 of the
1969 Vienna Vienna
119. The Applicant contends that the Respondent never
alerted the Applicant to any alleged material breach of the Interim Accord and
never sought to invoke a right of suspension under Article 60 of the 1969 Vienna 60 in the Counter-Memorial.
In addition, the Applicant calls attention to the “specific and detailed”
procedural requirements of Article 65 of the 1969 Vienna
C. The Parties’ arguments with regard to
countermeasures
120. The
Respondent also argues that any failure to comply with its obligations under
the Interim Accord could be justified as a countermeasure. As with the
Respondent’s argument regarding suspension in response to a material breach,
the Respondent’s position on countermeasures evolved during the proceedings.
Initially, the Respondent stated that it did not claim that any objection to
the Applicant’s admission to NATO was justified as a countermeasure. Later, the
Respondent stated that its “supposed objection would fulfil the requirements
for countermeasures”. The Respondent described the defence as “doubly
subsidiary”, meaning that it would play a role only if the Court found the
Respondent to be in breach of the Interim Accord and if it concluded that the exceptio
did not preclude the wrongfulness of the Respondent’s conduct.
121. The Respondent discusses countermeasures with
reference to the requirements reflected in the International Law Commission
Articles on State Responsibility (Annex to General Assembly resolution 56/83,
12 December 2001, hereinafter referred to as “the ILC Articles on State
Responsibility”). It asserts that the Applicant’s violations were serious and
that the Respondent’s responses were consistent with the conditions reflected
in the ILC Articles on State Responsibility, which it describes as requiring
that countermeasures be proportionate, be taken for the purpose of achieving
cessation of the wrongful act and be confined to the temporary non-performance
of the Respondent’s obligation not to object. The Respondent also states that
the Applicant was repeatedly informed of the Respondent’s positions.
122. The Applicant calls attention to the requirements
in the ILC Articles on State Responsibility that countermeasures must be taken
in response to a breach by the other State, must be proportionate to those
breaches and must be taken only after notice to the other - 38 -
State. In the view
of the Applicant, none of these requirements were met. The Applicant further
states its view that the requirements for the imposition of countermeasures
contained in the ILC Articles on State Responsibility reflect “general international
law”.
2. The Respondent’s allegations that the Applicant
failed to comply with its obligations under the Interim Accord
123. The Court
observes that while the Respondent presents separate arguments relating to the exceptio,
partial suspension under Article 60 of the 1969 Vienna Convention, and
countermeasures, it advances certain minimum conditions that are common to all
three arguments. First, the Respondent bases each argument on the allegation
that the Applicant breached several provisions of the Interim Accord prior to
the Respondent’s objection to the Applicant’s admission to NATO. Secondly, each
argument, as framed by the Respondent, requires the Respondent to show that its
objection to the Applicant’s admission to NATO was made in response to the
alleged breach or breaches by the Applicant, in other words, to demonstrate a
connection between any breach by the Applicant and any objection by the
Respondent. With these conditions in mind, the Court turns to the evidence regarding
the alleged breaches by the Applicant. As previously noted (see paragraph 72),
it is in principle the duty of the party that asserts certain facts to establish
the existence of such facts.
A. Alleged breach by the Applicant of the second
clause of Article 11, paragraph 1
124. The
Court begins with the Respondent’s claim that the second clause of Article 11,
paragraph 1, imposes an obligation on the Applicant not to be referred to in an
international organization or institution by any reference other than the
provisional designation (as “the former Yugoslav Republic of Macedonia”). The Respondent
alleges that the Applicant has failed to comply with such an obligation.
125. The Applicant, for its part, asserts that the
second clause of Article 11, paragraph 1, does not impose an obligation on the
Applicant, but instead specifies the single circumstance under which the
Respondent may object to admission.
126. The Court notes that on its face, the text of the
second clause of Article 11, paragraph 1, does not impose an obligation upon
the Applicant. The Court further notes that, just as other provisions of the
Interim Accord impose obligations only on the Applicant, Article 11, paragraph
1, imposes an obligation only on the Respondent. The second clause contains an
important exception to this obligation, but that does not transform it into an
obligation upon the Applicant. Accordingly, the Court finds no breach by the
Applicant of this provision.
B. Alleged breach by the Applicant of Article 5,
paragraph 1
127. The
Court next considers the Respondent’s allegation that the Applicant breached
its obligation to negotiate in good faith. It will be recalled that Article 5,
paragraph 1, of the Interim Accord provides: - 39 –
“The Parties
agree to continue negotiations under the auspices of the Secretary-General of
the United Nations pursuant to Security Council resolution 845 (1993) with a
view to reaching agreement on the difference described in that resolution and
in Security Council resolution 817 (1993).”
128. The Respondent asserts that the Parties
understood that the negotiations pursuant to Article 5, paragraph 1, have
always been meant to reach agreement on a single name that would be used for
all purposes. The Respondent contends that the Applicant has departed from this
understanding by pressing for a “dual formula” whereby the negotiations are
“limited solely to finding a name for use in the bilateral relations of the
Parties” and thus has attempted “unilaterally to redefine the object and
purpose of [the] negotiations”. The Respondent further contends that the
Applicant’s continuous use of its constitutional name to refer to itself and
its policy of securing third-State recognition under that name deprives the
negotiations of their object and purpose. The Respondent also makes the more
general allegation that the Applicant has adopted an intransigent and
inflexible stance during the negotiations over the name.
129. The Applicant, on the other hand, is of the view
that it “gave no undertaking under resolution 817, the Interim Accord or
otherwise to call itself by the provisional reference” (emphasis in the
original) and maintains that its efforts to build third-State support for its
constitutional name do not violate its obligation to negotiate in good faith,
as required by Article 5, paragraph 1. The Applicant contends that the Interim
Accord did not prejudge the outcome of the negotiations required by Article 5,
paragraph 1, by prescribing that those negotiations result in a single name to
be used for all purposes. In addition, the Applicant argues that it showed
openness to compromises and that it was the Respondent that was intransigent.
130. The Court observes that it is within the
jurisdiction of the Court to examine the question raised by the Respondent of
whether the Parties were engaged in good faith negotiations pursuant to Article
5, paragraph 1, without addressing the substance of, or expressing any views
on, the name difference itself, which is excluded from the Court’s jurisdiction
under Article 21, paragraph 2, of the Interim Accord (see paragraphs 28 to 38
above).
131. At the outset, the Court notes that although
Article 5, paragraph 1, contains no express requirement that the Parties
negotiate in good faith, such obligation is implicit under this provision (see
1969 Vienna Convention, Article 26; see also Delimitation of the Maritime
Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment,
I.C.J. Reports 1984, p. 292, para. 87; Fisheries Jurisdiction (United
Kingdom v. Iceland), Judgment, I.C.J. Reports 1974, pp. 33-34,
paras. 78-79; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Merits, Judgment, I.C.J. Reports 1974, p. 202, para. 69; Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para.
46; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports
1974, p. 473, para. 49; North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J.
Reports 1969, pp. 46-47, para. 85). - 40 –
132. The Court notes that the meaning of negotiations
for the purposes of dispute settlement, or the obligation to negotiate, has
been clarified through the jurisprudence of the Court and that of its
predecessor, as well as arbitral awards. As the Permanent Court of International
Justice already stated in 1931
in the case concerning Railway Traffic between
Lithuania and Poland, the obligation to negotiate is first of all “not only
to enter into negotiations, but also to pursue them as far as possible, with a
view to concluding agreements”. No doubt this does not imply “an obligation to
reach an agreement” (Railway Traffic between Lithuania and Poland, Advisory
Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116; see also Pulp Mills
on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010,
para. 150), or that lengthy negotiations must be pursued of necessity (Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p.
13). However, States must conduct themselves so that the “negotiations are
meaningful”. This requirement is not satisfied, for example, where either of
the parties “insists upon its own position without contemplating any
modification of it” (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J.
Reports 1969, p. 47, para. 85; see also Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment of 20 April 2010, para. 146) or
where they obstruct negotiations, for example, by interrupting communications
or causing delays in an unjustified manner or disregarding the procedures
agreed upon (Lake Lanoux Arbitration (Spain/France) (1957), United Nations,
Reports of International Arbitral Awards (RIAA), Vol. XII , p. 307).
Negotiations with a view to reaching an agreement also imply that the parties
should pay reasonable regard to the interests of the other (Fisheries
Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, p. 33, para. 78). As for the proof required for finding of
the existence of bad faith (a circumstance which would justify either Party in
claiming to be discharged from performance), “something more must appear than
the failure of particular negotiations” (Arbitration on the Tacna-Arica question
(Chile/Peru) (1925), RIAA, Vol. II , p. 930). It could be provided by circumstantial
evidence but should be supported “not by disputable inferences but by clear and
convincing evidence which compels such a conclusion” (ibid.).
133. The Court turns to examine whether the obligation
to negotiate in good faith was met in the present case in light of the
standards set out above.
134. The Court observes that the failure of the
Parties to reach agreement, 16 years after the conclusion of the Interim
Accord, does not itself establish that either Party has breached its obligation
to negotiate in good faith. Whether the obligation has been undertaken in good
faith cannot be measured by the result obtained. Rather, the Court must
consider whether the Parties conducted themselves in such a way that
negotiations may be meaningful.
135. The record indicates that, during the course of
the negotiations pursuant to Article 5, paragraph 1, the Applicant had resisted
suggestions that it depart from its constitutional name and that the Respondent
had opposed the use of “Macedonia Bucharest Summit
Nations mediator presented the Parties with a range of
proposals over the years and, in particular, expressed the view that, in the
time period prior to the Bucharest Summit, the Parties were negotiating in
earnest. Taken as a whole, the evidence from this period indicates that the
Applicant showed a degree of openness to proposals that differed from either
the sole use of its constitutional name or the “dual formula”, while the Respondent,
for its part, apparently changed its initial position and in September 2007
declared that it would agree to the word “Macedonia” being included in the
Applicant’s name as part of a compound formulation.
137. The Court also notes that the United Nations
mediator made comments during the period January-March 2008 that characterized
the negotiations in positive terms, noting the Parties’ obvious desire to
settle their differences.
138. Thus, the Court concludes that the Respondent has
not met its burden of demonstrating that the Applicant breached its obligation
to negotiate in good faith.
C. Alleged breach by the Applicant of Article 6,
paragraph 2
139. Article
6, paragraph 2, provides:
“The Party of the Second Part hereby solemnly declares
that nothing in its Constitution, and in particular in Article 49 as amended,
can or should be interpreted as constituting or will ever constitute the basis
for the Party of the Second Part to interfere in the internal affairs of another
State in order to protect the status and rights of any persons in other States
who are not citizens of the Party to the Second Part.”
140. The Respondent’s allegations under this heading
relate principally to the Applicant’s efforts to support or to advocate on
behalf of persons now resident in the Applicant’s territory (who are also, in
some cases, the Applicant’s nationals) who left or were expelled from the
Respondent’s territory in connection with its civil war in the 1940s (or who
are the descendants of such persons) and who assert claims in relation to,
among other things, abandoned property in the Respondent’s territory. Some
allegations on which the Respondent relies refer to events subsequent to the Bucharest Summit Summit
141. For its part, the Applicant asserts that its
concern for the human rights of minority groups in the Respondent’s territory
and for the human rights of its own citizens cannot reasonably be viewed as
constituting interference in the Respondent’s internal affairs.
142. The Court finds that the allegations on which the
Respondent relies appear to be divorced from the text of Article 6, paragraph
2, which addresses only the Applicant’s interpretation of its Constitution. The
Respondent has presented no convincing evidence to suggest that the Applicant
has interpreted its Constitution as providing a right to interfere in the
Respondent’s internal affairs on behalf of persons not citizens of the
Applicant. The Court therefore does not find that the Applicant breached Article
6, paragraph 2, prior to the Bucharest Summit
D. Alleged breach by the Applicant of Article 7,
paragraph 1
143. Article
7, paragraph 1, provides:
“Each Party shall promptly take effective measures to
prohibit hostile activities or propaganda by State-controlled agencies and to
discourage acts by private entities likely to incite violence, hatred or
hostility against each other.”
144. The Respondent alleges that the Applicant
breached this provision based on its failure to take effective measures to
prohibit hostile activities by State-controlled agencies, citing, for example,
allegations relating to the content of school textbooks. In that respect, the
Respondent refers to history textbooks used in the Applicant’s schools that
depict a historic “Greater Macedonia
145. The Respondent also alleges that the Applicant
breached a second obligation set forth in Article 7, paragraph 1: the
obligation to discourage acts by private entities likely to incite violence,
hatred or hostility against the Respondent. In particular, the Respondent cites
an incident on 29 March 2008 (in the days prior to the Bucharest
Summit ) in which several outdoor billboards in Skopje Skopje
146. For its part, the Applicant asserts that the
school textbooks reflect differences concerning the history of the region. It
further claims that the billboards in Skopje
147. Based on its review of the Parties’ arguments and
the extensive documentation submitted in relation to these allegations, the
Court finds that the evidence cannot sustain a finding that the Applicant
committed a breach of Article 7, paragraph 1, prior to the Bucharest Summit. The
textbook content described above does not provide a basis to conclude that the
Applicant has failed to prohibit “hostile activities or propaganda”.
Furthermore, the Respondent has not demonstrated convincingly that the
Applicant failed “to discourage” acts by private entities likely to incite
violence, hatred or hostility towards the Respondent. The Applicant’s assertion
that it took prompt action in response to the March 2008 billboards was not
challenged by the Respondent, and the evidence shows that, at a minimum, the
Applicant issued a statement seeking to distance itself from the billboards.
The Court notes the obligation to protect the premises of the diplomatic
mission and to protect any disturbance of the peace or impairment of its
dignity contained in Article 22 of the Vienna Convention on Diplomatic
Relations, and observes that any incident in which there is damage to
diplomatic property is to be regretted. Nonetheless, such incidents do not ipso
facto demonstrate a breach by the Applicant of its obligation under Article
7, paragraph 1, “to discourage” certain acts by private entities. Moreover, the
Applicant introduced evidence demonstrating its efforts to provide adequate
protection to the Respondent’s diplomatic staff and premises.
E. Alleged breach by the Applicant of Article 7,
paragraph 2
148. Article
7, paragraph 2, provides:
“Upon entry into force of this Interim Accord, the
Party of the Second Part shall cease to use in any way the symbol in all its
forms displayed on its national flag prior to such entry into force.”
149. The Respondent asserts that the Applicant has
used the symbol described in Article 7, paragraph 2, in various ways since the
Interim Accord entered into force, thus violating this provision.
150. The Respondent does not dispute that the
Applicant has changed its flag, as required. The Respondent’s allegations
relate to the use of the symbol in other contexts, including an alleged use by
a regiment of the Applicant’s army depicted in a publication of the Applicant’s
Ministry of Defence in 2004. The record indicates that the Respondent raised
its concerns to the Applicant about that use of the symbol at that time and the
Applicant does not refute the claim that the regiment did use the symbol.
151. The Applicant asserts that the regiment in
question was disbanded in 2004 (an assertion left unchallenged by the
Respondent), and there is no allegation by the Respondent that the symbol
continued to be used in that way after 2004.
152. The Respondent also introduces evidence with
respect to fewer than ten additional instances in which the symbol has been
used in the territory of the Applicant in various ways, mainly in connection
with either publications or public displays. - 44 –
153. The Court observes that these allegations relate
either to the activities of private persons or were not communicated to the
Applicant until after the Bucharest Summit
F. Alleged breach by the Applicant of Article 7,
paragraph 3
154. Article
7, paragraph 3, provides:
“If either Party believes one or more symbols
constituting part of its historic or cultural patrimony is being used by the
other Party, it shall bring such alleged use to the attention of the other
Party, and the other Party shall take appropriate corrective action or indicate
why it does not consider it necessary to do so.”
155. The Respondent asserts that Article 7, paragraph
3, means that each party should abstain from using the symbols referred to
therein because such conduct could undermine the objectives of the Interim
Accord. The Respondent further asserts that the Applicant has violated this
provision in a variety of ways, including by issuing stamps, erecting statues
and renaming the airport of the capital.
156. The Court notes that in contrast to Article 7,
paragraph 2, the text of Article 7, paragraph 3, does not expressly prohibit
the Applicant from using the symbols that it describes. Rather, it establishes
a procedure for situations in which one Party believes the other Party to be
using its historical or cultural symbols.
157. Because Article 7, paragraph 3, does not contain
any prohibition on the use of particular symbols, the renaming of an airport
could not itself constitute a breach. The threshold question is thus whether
the Respondent brought its concern “to the attention” of the Applicant prior to
the Bucharest Summit
158. Although it does not appear that the Respondent
brought its concern to the attention of the Applicant in a manner contemplated
by Article 7, paragraph 3, the Applicant was aware of the Respondent’s concern,
and the Applicant’s Foreign Minister explained the rationale behind the
renaming of the airport in a January 2007 interview to a Greek newspaper. - 45 –
159. On the basis of this record, the Court concludes
that the Respondent has not discharged its burden to demonstrate a breach of
Article 7, paragraph 3, by the Applicant.
*
3. Conclusions concerning the Respondent’s additional
justifications
A. Conclusion concerning the exceptio non adimpleti
contractus
161. Having
reviewed the Respondent’s allegations of breaches by the Applicant, the Court
returns to the Respondent’s contention that the exceptio, as it is
defined by the Respondent, precludes the Court from finding that the Respondent
breached its obligation under Article 11, paragraph 1, of the Interim Accord.
The Court recalls that in all but one instance (the use of the symbol
prohibited by Article 7, paragraph 2 (see paragraph 153)), the Respondent
failed to establish any breach of the Interim Accord by the Applicant. In addition,
the Respondent has failed to show a connection between the Applicant’s use of
the symbol in 2004 and the Respondent’s objection in 2008 ⎯ that is, evidence
that when the Respondent raised its objection to the Applicant’s admission to
NATO, it did so in response to the apparent violation of Article 7, paragraph
2, or, more broadly, on the basis of any belief that the exceptio precluded
the wrongfulness of its objection. The Respondent has thus failed to establish
that the conditions which it has itself asserted would be necessary for the
application of the exceptio have been satisfied in this case. It is,
therefore, unnecessary for the Court to determine whether that doctrine forms
part of contemporary international law.
B. Conclusion concerning a response to material breach
162. As
described above (see paragraph 118), the Respondent also suggested that its
objection to the Applicant’s admission to NATO could have been regarded as a
response, within Article 60 of the 1969 Vienna Convention, to material breaches
of the Interim Accord allegedly committed by the Applicant. Article 60,
paragraph 3 (b), of the 1969 Vienna
163. The Court recalls its analysis of the
Respondent’s allegations of breach at paragraphs 124 to 159 above and its conclusion
that the only breach which has been established is - 46 –
the display of a symbol in breach of Article 7,
paragraph 2, of the Interim Accord, a situation which ended in 2004. The Court
considers that this incident cannot be regarded as a material breach within the
meaning of Article 60 of the 1969 Vienna 2008 in connection with the
Applicant’s application to NATO was a response to the breach of Article 7,
paragraph 2, approximately four years earlier. Accordingly, the Court does not
accept that the Respondent’s action was capable of falling within Article 60 of
the 1969 Vienna
C. Conclusion concerning countermeasures
164. As
described above (see paragraphs 120 and 121), the Respondent also argues that
its objection to the Applicant’s admission to NATO could be justified as a
proportionate countermeasure in response to breaches of the Interim Accord by
the Applicant. As the Court has already made clear, the only breach which has
been established by the Respondent is the Applicant’s use in 2004 of the symbol
prohibited by Article 7, paragraph 2, of the Interim Accord. Having reached
that conclusion and in the light of its analysis at paragraphs 72 to 83
concerning the reasons given by the Respondent for its objection to the
Applicant’s admission to NATO, the Court is not persuaded that the Respondent’s
objection to the Applicant’s admission was taken for the purpose of achieving
the cessation of the Applicant’s use of the symbol prohibited by Article 7,
paragraph 2. As the Court noted above, the use of the symbol that supports the
finding of a breach of Article 7, paragraph 2, by the Applicant had ceased as
of 2004. Thus, the Court rejects the Respondent’s claim that its objection
could be justified as a countermeasure precluding the wrongfulness of the
Respondent’s objection to the Applicant’s admission to NATO. Accordingly, there
is no reason for the Court to consider any of the additional arguments advanced
by the Parties with respect to the law governing countermeasures.
165. For the foregoing reasons, the additional
justifications submitted by the Respondent fail.
*
* *
166. Lastly, the Court emphasizes that the 1995 Interim
Accord places the Parties under a duty to negotiate in good faith under the
auspices of the Secretary-General of the United Nations pursuant to the
pertinent Security Council resolutions with a view to reaching agreement on the
difference described in those resolutions.
*
* * - 47 - V. REMEDIES
167. The
Court recalls that, in its final submissions pertaining to the merits of the
present case, the Applicant seeks two remedies which it regarded as constituting
appropriate redress for claimed violations of the Interim Accord by the Respondent.
First, the Applicant seeks relief in the form of a declaration of the Court
that the Respondent has acted illegally, and secondly, it requests relief in
the form of an order of the Court that the Respondent henceforth refrain from
any action that violates its obligations under Article 11, paragraph 1, of the
Interim Accord.
168. As elaborated above, the Court has found a
violation by the Respondent of its obligation under Article 11, paragraph 1, of
the Interim Accord. As to possible remedies for such a violation, the Court
finds that a declaration that the Respondent violated its obligation not to
object to the Applicant’s admission to or membership in NATO is warranted. Moreover,
the Court does not consider it necessary to order the Respondent, as the
Applicant requests, to refrain from any future conduct that violates its
obligation under Article 11, paragraph 1, of the Interim Accord. As the Court
previously explained, “[a]s a general rule, there is no reason to suppose that
a State whose act or conduct has been declared wrongful by the Court will
repeat that act or conduct in the future, since its good faith must be
presumed” (Navigational and Related Rights (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2009, p. 267, para. 150).
169. The Court accordingly determines that its finding
that the Respondent has violated its obligation to the Applicant under Article
11, paragraph 1, of the Interim Accord, constitutes appropriate satisfaction.
*
* * - 48 -
170. For these
reasons,
THE COURT,
(1) By
fourteen votes to two,
Finds that it has jurisdiction to entertain the Application
filed by the former Yugoslav
Republic of Macedonia
IN FAVOUR: President
Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Donoghue; Judge ad hoc Vukas;
AGAINST: Judge Xue;
Judge ad hoc Roucounas;
(2) By
fifteen votes to one,
Finds that the Hellenic
Republic , by objecting to the
admission of the former
Yugoslav Republic of Macedonia
IN FAVOUR: President
Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue; Judge ad hoc Vukas;
AGAINST: Judge ad
hoc Roucounas;
(3) By
fifteen votes to one,
Rejects all other submissions made by the former Yugoslav Republic of Macedonia
IN FAVOUR: President
Owada; Vice-President Tomka; Judges Koroma, Simma, Abraham,
Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue; Judge ad hoc Roucounas;
AGAINST: Judge ad
hoc Vukas.
Done in English and
in French, the English text being authoritative, at the Peace Palace, The
Hague, this fifth day of December, two thousand and eleven, in three copies,
one of which will be placed in the archives of the Court and the others
transmitted to the Government of the former Yugoslav Republic of Macedonia and
the Government of the Hellenic Republic, respectively.
(Signed) Hisashi OWADA,
President.
(Signed) Philippe COUVREUR,
Registrar. - 49 -
Judge SIMMA appends a separate opinion to the Judgment
of the Court; Judge BENNOUNA appends a declaration to the Judgment of the
Court; Judge XUE appends a dissenting opinion to the Judgment of the Court;
Judge ad hoc ROUCOUNAS appends a dissenting opinion to the Judgment of
the Court; Judge ad hoc VUKAS appends a declaration to the Judgment of
the Court.
(Initialled) H. O.
(Initialled)
Ph. C.
