INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
THE APPLICATION OFARTICLE 11, PARAGRAPH 1,
OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995
(THE FORMER YUGOSLAV REPUBLIC OF MACEDONIAv. GREECE)
MEMORIAL
VOLUME I
20 JULY 2009VOLUME I TABLE OF CONTENTS
Page
CHAPTER I: INTRODUCTION AND OVERVIEW OF CASE............ 5
Section I. Overview........................................................................▯......... 5
Section II.Structure of the Memorial..................................................... 11
CHAPTER II: THE FACTUAL BACKGROUND................................. 14
Introduction........................................................................▯.................... 14
Section I. The Emergence of the Applicant into Statehood................... 14
Section II.The Quest for International Recognition: the European
Community and the United Nations....................................................... 19
A. Initial Engagement with the European Community ................... 20
B. The Applicant’s Membership of the United Nations and
Resolution 817........................................................................▯.... 25
C. United Nations-Led Negotiations and Security Council
Resolution 845........................................................................▯.... 30
D. The Applicant’s Growing International Integration and
Recognition and the Economic Embargo ................................... 33
Section III. The 1995 Interim Accord and its Application.................... 37
A. The Content and Structure of the Interim Accord ............................ 37
B. Reference to the Applicant in the Interim Accord and Related
Agreements........................................................................▯............... 39
C. The Respondent’s Undertaking Regarding the Applicant’s
Application to and Membership of International, Multilateral
and Regional Organizations and Institutions.................................... 41
D. The Entry into Force of the Interim Accord..................................... 42
- 1 - Section IV. The Integration of the Applicant into the International
Community........................................................................▯..................... 43
Section V. The Applicant’s Engagement with the North Atlantic
Treaty Organization and the Respondent’s Objection
to the Applicant’s Membership Thereof................................................. 45
A. NATO and its Membership Process............................................ 45
B. The Applicant’s Relationship with NATO.................................. 48
C. The 2008 NATO Summit in Bucharest....................................... 50
D. The Respondent’s Objection to the Applicant’s
Membership of NATO ................................................................ 54
E. The Respondent’s Stated Position Concerning the Applicant’s
Membership of the European Union........................................... 60
Section VI. The Current Proceedings.................................................... 61
A. The Institution of the Current Proceedings................................. 61
B. The Respondent’s Conduct since 3 April 2008........................... 62
Section VII. Conclusions...................................................................... 65
CHAPTER III: JURISDICTION OF THE COURT.............................. 66
CHAPTER IV: THE MEANING AND EFFECT OFARTICLE 11(1)
OF THE INTERIM ACCORD ................................................................. 72
Introduction........................................................................▯.................... 72
Section I. The Object and Purpose of the 1995 Interim Accord ........... 73
Section II. Article 11 in the Context of its Negotiating History............ 77
Section III. The Obligation Set Forth in Article 11............................... 79
A. The First Clause Of Article 11(1): The Respondent’s
Obligation “Not to Object”......................................................... 80
B. The Second Clause of Article 11(1): the Sole Basis
Permitted for the Respondent to Object...................................... 82
C. Article 11(2)........................................................................▯........ 84
Section IV. Conclusions........................................................................▯...... 84
- 2 -CHAPTER V: THE RESPONDENT HAS VIOLATED ARTICLE II(1)
OF THE INTERIM ACCORD BY OBJECTING
TO THE APPLICANT’S MEMBERSHIP OF NATO............................ 85
Introduction........................................................................▯.................... 85
Section I. The Respondent’s Conduct in Late March/Early
April 2008 Violated Article 11(1) of the Interim Accord....................... 87
Section II. The Respondent’s Violation Was Not a Lawful Reaction
to Matters related to Other Provisions of the Interim Accord, since
those Provisions Call for Specific Dispute Resolution Procedures........ 90
Section III. The Respondent’s Non-Performance Cannot Be
Explained on the Basis of a Suspension of Article 11(1) of the
Interim Accord for Material Breach....................................................... 94
Section IV. The Respondent’s Violation of Article 11(1) Cannot
Be Excused as a Lawful Countermeasure to a Precedent Wrongful
Act by the Applicant........................................................................▯..... 101
Section V. On the Merits, the Respondent’s Allegations of Material
Breach by the Applicant of the Interim Accord Are without
Foundation.....................................................................06..▯ ....................1
Section VI. Conclusions...................................................................... 113
CHAPTER VI: THE RELIEF SOUGHT.............................................. 114
Introduction........................................................................▯.................. 114
Section I. The First Request................................................................ 116
Section II. The Second Request .......................................................... 118
Section III. Reservation of Rights....................................................... 122
SUBMISSIONS........................................................................▯................ 123
CERTIFICATION ........................................................................▯........... 125
LIST OFANNEXES........................................................................▯........ 127
- 3 -- 4 - CHAPTER I
INTRODUCTION AND OVERVIEW OF THE CASE
Section I. Overview
1.1. On 17 November 2008, theApplicant instituted proceedings before the
International Courtof Justice (“theCourt”) againstthe Respondent to protectits
rights underArticle 11 of the InterimAccord of 1995 (“the InterimAccord”), 1
a treaty signed by the Applicant and the Respondent (“the Parties”) on 13
September 1995. 2 The proceedings are based on Article 21(2), of the Interim
Accord, and seek to hold the Respondent to the obligation it undertook under
Article 11 of the InterimAccord, which it violated through its objection to the
Applicant’s membership of the NorthAtlanticTreaty Organization (NATO).The
Respondent’s objection prevented theApplicant from receiving an invitation to
proceed with membership of NATO. The case is being brought to ensure that
theApplicant can continue to exercise its rights as an independent State acting
in accordance with its rights under the InterimAccord and under international
law, including the right to pursue membership of NATO and other international
organizations.
1.2. By its Order of 20 January 2009, the Court fixed 20 July 2009 as the
date for submission by the Applicant of its Memorial. This Memorial with
accompanying Annexes is submitted in accordance with that Order.
1 Interim Accord between the Applicant and the Respondent (New York, 13 September
1995), in force on 13 October 1995:Annex 1.
2 ApplicationtotheInternationalCourtofJustice,DisputeConcerningtheImplementation
of Article 11, paragraph 1 of the Interim Accord of 13 September 1995, 17 November
2008, at para. 1. The Application contains three typographical errors. Firstly, at page 7,
paragraph 17, the fourth line of the quotation from Article 11(1) of the Interim Accord
should read: “…..organizations and institutions of which the Party of the First Part … .”
Secondly, at page 7, paragraph 17, the fifth line of the quotation fromArticle 11(1) of the
Interim Accord should read: “however, the Party of the First Part ... .” Thirdly, at page
10, the paragraph numbering sequence skips number ‘V’.
- 5 -1.3. The dispute between the Parties is discrete in its scope, although this
does not mean that the issues that arise, in relation to matters of law and fact, are
not without considerable significance, both for the Parties and more generally.
The dispute has arisen in the context of the Respondent’s actions in relation
to the NATO membership process pursued by the Applicant, and of related
concerns regarding the European Union (EU). NATO membership – linked
directly to EU membership – is one of the most important strategic priorities
for the Applicant, with significant security implications for the Applicant’s
multiethnic democracy and for the overall stability of the Balkan region. The
case requires the Court to examine and establish the fact of the Respondent’s
objection and to interpret and apply the Respondent’s legal obligations arising
under Article 11(1) of the Interim Accord.
1.4. The dispute between the Parties crystallized on 3April 2008, although
the first public indications that the Respondent was intending to object to the
Applicant’s membership of NATO came as early as November 2004. 3In late
March/early April 2008 – and in particular, on or about 3 April 2008 – the
Respondent, in its capacity as a member of NATO, gave effect to its objection
and acted to prevent the Applicant from receiving an invitation to proceed to
NATO membership under the provisional reference of ‘the former Yugoslav
Republic of Macedonia’.As a direct consequence of the Respondent’s actions,
in circumstances in which membership of NATO requires the consensus of all
existing members, the Applicant did not receive an invitation to join NATO.
1.5. At no time did the Respondent seek to justify its objection on the
ground that the Applicant would be referred to in NATO differently than in
paragraph 2 of the United Nations Security Council resolution 817 (1993)
(“resolution 817”), 4 the solitary ground on which such an objection would
5
have been permissible underArticle 11(1) of the InterimAccord. This is clear
from contemporaneous statements made by representatives of the Respondent,
3
See Chapter II, para. 2.60.
4 United Nations Security Council resolution 817 (1993) (SC/RES/817) (7 April 1993):
Annex 22.
5 See Chapter IV, paras. 4.29-4.32.
- 6 -indicatingtheRespondent’spositionintheleaduptoandonthedayoftheNATO
Bucharest Summit of 3 April 2008, and in the days following the decision. 6
The evidence is incontrovertible and is addressed in more detail in Chapters
II and IV.
1.6. Moreover, in acting as it did, the Respondent did not object to the
Applicant’s NATO membership by reference to any claimed rights under the
law of treaties or the law of state responsibility; prior to its objection on or
about 3 April 2008, it did not allege in writing or by way of a note verbale
directed to theApplicant, that theApplicant had in some way failed to comply
materially or otherwise with its obligations under the Interim Accord; and it
did not invoke justifications based on the right to take countermeasures.
1.7. As described in Chapter II, the fact that the Respondent did not object
to the Applicant’s membership of NATO on the solitary ground permitted by
Article 11(1) is reflected in contemporaneous news accounts. Neither the Greek
media nor the world media reported that the Respondent’s objection to the
Applicant’s membership of NATO was based on any belief that theApplicant
would be referred to in NATO differently than in paragraph 2 of resolution
817. 7This has also been confirmed by representatives of other NATO members
8
who were closely involved in the events of 3 April 2008.
1.8. The Respondent’s objection to the Applicant’s membership of NATO
amounts to a clear violation of its obligations underArticle 11(1) of the Interim
Accord. By this provision, the Respondent accepted an obligation, which is
binding under international law, “not to object to the application by or the
membership of [the Applicant] in international, multilateral and regional
organizations and institutions of which [the Respondent] is a member”, where,
pending resolution of the difference concerning the Applicant’s name, the
Applicant “is to be referred to” in accordance with the provisional reference set
6
See Chapter II, para. 2.59.
7 See Chapter II, paras. 2.61.
8 See Chapter II, paras. 2.61-2.62.
- 7 -out in resolution 817 “as the former Yugoslav Republic of Macedonia” in the
organization or institution in question.There is no dispute that theApplicant is
already referred to as ‘the former Yugoslav Republic of Macedonia’in a non-
membership capacity within NATO and that the Applicant would be referred
to as such as a member of the organization. The violation of Article 11(1) is
therefore clear on its face. The Respondent’s obligation was “not to object”:
that obligation applies irrespective of whether its objection amounted to a
veto and irrespective of the effect or consequence of its objection. Thus, these
proceedings are not concerned in any way with the acts or omissions of any
third States, or with any provisions of the constituent instrument of NATO or of
any other international organization or institution: the object and subject matter
of these proceedings are exclusively related to the actions of the Respondent
and their incompatibility with the Interim Accord.
1.9. In this regard, it is particularly important to emphasize the significance
of the date on which the Respondent objected to the Applicant’s membership
of NATO. For the purposes of these proceedings, the date of 3 April 2008 is
significant because it indicates the key date by reference to which the legality
of the Respondent’s actions is to be assessed. In accordance with the Court’s
established practice, any acts occurring after the date on which a dispute arises
will necessarily be of limited consequence in assessing the legality of the
Respondent’s objections. Actions after that date are invariably seen as self-
serving, not least because they may aim to provide anex post facto justification
of a state’s actions. In the context of maritime delimitation disputes, the Court
has consistently adopted the position that:
“it cannot take into consideration acts having taken place after the date on
which the dispute between the Parties crystallized unless such acts are a
normal continuation of prior acts and are not undertaken for the purpose
9
of improving the legal position of the Party which relies on them”.
9 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment,
ICJ Reports 2002, p. 682, at para. 135.
- 8 -1.10. The rationale of this approach is equally pertinent in the present case:
in assessing the legality of the acts of the Respondent, the Court is necessarily
required to look carefully at matters that occurred before and on 3April 2008,
the date of the NATO Bucharest Summit. This is all the more necessary given
the efforts on the part of the Respondent to modify its position and arguments
after that key date, and in particular given its actions after 17 November 2008,
the date on which the Application initiating these proceedings was filed with
the Court. Specifically, the Applicant is not aware of any occasion prior to 3
April 2008 on which the Respondent formally alleged, in writing or by way
of a note verbale directed to the Applicant, that the Applicant was in material
breach of the InterimAccord. In particular, on no occasion before that date did
the Respondent raise any written concerns by way of note verbale concerning
the procedure established byArticle 7(3) of the InterimAccord, which provides
a mechanism for one Party to notify to the other in respect of certain acts
that are considered to be inconsistent with the provisions of that article. As
described in Chapter II of this Memorial, it was only on 15 May 2008, after the
Applicant had raised a complaint about the Respondent’s violation of Article
11(1) of the Interim Accord, that the Respondent for the first time presented a
formal note verbale to theApplicant alleging violation by theApplicant of the
InterimAccord. 10The Respondent’s assertions appear to have been reactive to
theApplicant’s complaints. This was followed by a second note verbale dated
15 January 2009, two months after the Application in this case was filed, in
which the Respondent formally complained in writing to the Applicant that it
had not complied with its obligations under the Interim Accord. 11It is readily
apparent that these recent actions of the Respondent have been “undertaken
for the purpose of improving the legal position of the Party which relies on
them”. 12The fact that the issues they addressed were not raised formally in
writing to theApplicant before 3April 2008, or indeed 17 November 2008, or
related to matters post-dating 17 November 2008, indicates the sharp change
10 Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of ForeignAffairs:Annex 51; see Chapter II, paras. 2.66-2.69.
11 Verbal note dated 15 January 2009 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of ForeignAffairs:Annex 52
12 Ibid., note 9 supra.
- 9 -in position adopted by the Respondent. The Applicant understands this new
approach to reflect the Respondent’s realization that the justifications it gave
at the time of its objection, and for some time after, established a violation of
its obligations under the Interim Accord.
1.11. This case is about the legality of the Respondent’s objection, no more
and no less. It is about ensuring respect for the Interim Accord and the law
of treaties. The function of the Court is to assess whether the Respondent’s
objection – in late March/earlyApril 2008 – did or did not give rise to a violation
of the Respondent’s obligations under Article 11(1) of the Interim Accord.
The case is not about other issues, and the Court is not called upon to express
any view as to the merits or demerits of either party’s position in respect of
the negotiations taking place pursuant to Article 5(1) of the Interim Accord
relating to the difference concerning theApplicant’s name. Equally, as above,
the case is only about the acts and objection of the Respondent, not about
the acts of any other NATO member or the acts of NATO as an organization.
Nor does the Court have to express any views as to the merits of the ex post
facto justifications raised by the Respondent since this Application was filed.
The Applicant has noted with interest the range of new issues raised by the
Respondent in its notes verbales, in particular those of 15 May 2008 and 15
January 2009. 13The fact that the Respondent has felt the need to create a new
basis for its actions of 3April 2008 reflects a recognition that the reason given
for its objection – “the failure to reach a viable and definitive solution to the
name issue” – is plainly inconsistent with its obligations under Article 11 of
the Interim Accord.
1.12. Equally, this case is not about the conditions of membership of NATO,
or about the actions of any third States. It is not about the historic circumstances
that have given rise to the difference as to theApplicant’s name, and it does not
require the Court to address in any way – directly or indirectly – other issues
13 Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of Foreign Affairs: Annex 51; verbal note dated 15 January 2009
from the Respondent’s Liaison Office in Skopje to the Applicant’s Ministry of Foreign
Affairs:Annex 52.
- 10 -on which the Parties have addressed views in other fora, such as the rights of
minorities on either side of the border.
Section II: Structure of the Memorial
1.13. This Memorial is in six chapters. Following this Introduction, Chapter
II deals with the facts of this dispute. It is divided into seven sections. It
necessarily begins with the historical context against which the dispute has
arisen, describing the circumstances in which the Applicant emerged into
independence following the collapse of the former Socialist Federal Republic
ofYugoslavia in 1991 (Section I). Section II outlines the context in which the
Interim Accord was negotiated and adopted, setting out the Applicant’s path
to international recognition; the conditions under which it was able to secure
membership of the United Nations in 1993, in accordance with the terms of
Security Council resolution 817; the United Nations-led negotiations leading
to Security Council resolution 845; the Applicant’s growing international
integration and the resulting economic embargo imposed by the Respondent.
Section III focuses on the content and structure of the Interim Accord, with
a particular focus on Article 11(1). Section IV of the chapter addresses the
practice under Article 11 of the Interim Accord, describing the Applicant’s
integration into the international community and how, following the entry into
force of the InterimAccord, theApplicant was able to apply for membership
of – and then join – a large number of international, multilateral and regional
organizations and institutions, including the Council of Europe, under the
provisional designation referred to in resolution 817. This was one of the key
purposes of the Interim Accord from the Applicant’s perspective. Section V
of the chapter describes theApplicant’s engagement with NATO in the period
prior to 3April 2008, including the Partnership for Peace programme, which the
Applicant joined in 1995, and its MembershipAction Plan, initiated in 1999. It
also describes the circumstances in which the Respondent acted to prevent the
Applicant from proceeding to membership of NATO. Specifically, it shows that
theApplicant was to be referred to within NATO in the manner envisaged by
paragraph 2 of Security Council resolution 817 (1993); that theApplicant had
- 11 -accepted that position; that, despite this, the Respondent unlawfully objected
to the Applicant being invited to begin accession talks to become a member
of NATO; and that, but for those actions, the Applicant would have been
invited to join NATO. Section VI of the chapter describes the institution of
the current proceedings and the Respondent’s conduct since 3 April 2008, in
particular its efforts to find other ex post facto excuses for its objection. This
section shows the change of direction adopted by the Respondent in the period
after 3 April 2008, and again after 17 November 2008 when the Application
initiating these proceedings was filed. Section VII sets out the conclusions
to the chapter.
1.14. Chapter III addresses the Jurisdiction of the Court, which is based on
Article 21(2) of the 1995 Interim Accord and Article 36(1) of the Statute of
the Court. The Court’s jurisdiction is clearly established: this case concerns a
dispute that has arisen between the Parties “concerning the interpretation or
implementation of this InterimAccord”, namely itsArticle 11(1), and does not
concern the difference concerning theApplicant’s name, as set out in Security
Council resolutions 817 (1993) and 845 (1993), as referred to inArticle 5(1) of
the 1995 InterimAccord. Similarly, the case does not concern issues of NATO
membership more generally, or the actions of any third State.
1.15. Chapter IV of the Memorial sets out the basis on which theApplicant
submits that the Respondent has violated its obligation under Article 11(1) of
the Interim Accord. Section I generally sets out the object and purpose of the
Interim Accord and what its adoption sought to address. Section II addresses
the meaning of Article 11(1), the provision of the Interim Accord violated by
the Respondent, in the context of the negotiating history of the InterimAccord.
Section III addresses in greater detail the meaning and effect of Article 11
of the Interim Accord. It sets out (i) the general obligation assumed by the
Respondent underArticle 11(1) not to object to theApplicant’s membership of
organizations and institutions of which the Respondent was a member, and (ii)
the sole basis permitted for the Respondent to object to any such membership.
Section IV concludes the chapter.
- 12 -1.16. Chapter V addresses the law that is applicable to the resolution of this
dispute. Section I discusses the obligation on the Respondent set forth under
Article 11(1) of the Interim Accord – which the Respondent has never sought
to terminate or suspend for material breach or for any other reason and which
remains in full effect – which the Respondent breached by its actions of late
March/earlyApril 2008.Section IImakes clear that the Respondent’s violation
ofArticle 11(1) could not have been a lawful reaction to matters relating to other
provisions of the InterimAccord.Sections IIIand IV interpret the Respondent’s
violation in relation to other international instruments binding on the Parties,
including the 1949 North Atlantic Treaty, the 1969 Vienna Convention on the
Law of Treaties, as well as the general rules of international law governing
the circumstances in which a treaty may be suspended and in which unilateral
“countermeasures” may be taken, none of which arise in this case. Section V
addresses the allegations of material breach madepost factoby the Respondent
and demonstrate that they are without foundation. Conclusions to the chapter
are set out in Section VI.
1.17. Chapter VI of the Memorial addresses the relief sought by theApplicant.
The chapterbegins with a brief introduction to the relief sought in the context of
the International LawCommission’sArticlesonState Responsibility ofStatesfor
Internationally WrongfulActs.Sections Iand IIset out the two forms of relief
sought by theApplicant, namely a declaration that the Respondent has violated
its obligations underArticle 11(1) of the 1995 InterimAccord, and an order that
theRespondentimmediatelytakeallnecessarystepstocomplywithitsobligation
under that provision. In this chapter the Applicant also explains why it seeks
an order that explicitly addresses membership of NATO and other international
organizations.FinallyS, ectionIIIoutlinestheApplicant’sreservationofitsright“to
modifyandextendthetermsofthisApplication,aswellasthegroundsinvolved”.
1.18. The Memorial also includes an Annex, which sets out (i) International
Instruments, (ii) National Instruments, (iii) United Nations Documents and
Correspondence, (iv) Diplomatic Correspondence between the Parties, (v) Press
Releases, Articles and Statements and (vi) Other Documents.
- 13 - CHAPTER II
THE FACTUAL BACKGROUND
Introduction
2.1. Thepurposeofthischapteristoprovidethefactualbackgroundnecessary
to understand the circumstances in which the dispute before the Court has arisen.
To that end, Section I of the chapter describes the emergence of theApplicant
into statehood and sets out the State’s key constitutional documents.Section II
provides the context in whichArticle 11 was adopted, mapping theApplicant’s
path to international recognition, focusing in particular on recognition by the
EuropeanCommunityandmembershipoftheUnitedNationS s.ectionIIIfocuses
on the InterimAccord of 1995 agreed between the Parties, and specifically on
Article 11(1), which is the subject of the dispute before the Court. Section IV
describes the integration by the Applicant into the international community
and in particular its membership of different international, multilateral and
regional organizations and institutions, following the entry into force of the
InterimAccord. Section V maps theApplicant’s engagement with NATO and
sets out the Respondent’s objection to the Applicant’s NATO membership,
which crystallized on 3April 2008. Section VI describes the institution of the
current proceedings and the Respondent’s conduct since April 2008. Finally,
Section VII sets out the conclusions to this chapter.
Section I. The Emergence of the Applicant into Statehood
2.2. The Applicant is a landlocked state of approximately 25,713 square
kilometresinsize,borderedtotheNorthbySerbiaandKosovo,totheSouthbythe
Respondent,totheEastbyBulgariaandtotheWestbyAlbania.Itisamultiethnic
14
democracy of approximately two million inhabitants. Its capital is Skopje.
14 Ministry of Foreign Affairs of the Applicant, The Republic of Macedonia – Basic
Facts, (2007): http://www.mfa.gov.mk/default1.aspx?ItemID=288. The Applicant has
a population of approximately 2,022,547 people, composed of Macedonians (64.18%
- 14 -2.3. The Applicant is one of the new independent Balkan states to have
emerged from the break-up of the Socialist Federal Republic of Yugoslavia
(SFRY), of which it had formed one of the six constituent republics, 15gaining
its independence peacefully. On 25 January 1991, the Applicant adopted the
“Declaration on the Sovereignty of the Socialist Republic of Macedonia”,
which asserted the sovereignty of the State and the right of its people to
self-determination. 16 On 7 June 1991, the Applicant’s Parliament, by way of
constitutional amendment, changed the name of the State to the “Republic of
Macedonia”(RepublikaMakedonija)fromthe“SocialistRepublicofMacedonia”
(Socijalistička Republika Makedonija), by which the Republic had been known
from 1963 to 1991, and as which it had been addressed by the Respondent
in official correspondence. 18 Three months later, on 8 September 1991, the
of the population), Albanians (25.1%), Turks (3.85%), Romas (2.66%), Serbs (1.78%),
Vlachs (0.48%) and Bosniacs (0.84%) and others: Census of Population, Households and
Dwellings in the Republic of Macedonia, 2002, Book XIII, Skopje, (May 2005), State
Statistical Office of the Applicant: http://www.stat.gov.mk/pdf/kniga_13.pdf.
15 As the ‘Socialist Republic of Macedonia’, alongside the Socialist Republics of Bosnia-
Herzegovina, Croatia, Montenegro, Serbia and Slovenia.
16 “Declaration on the Sovereignty of the Socialist Republic of Macedonia” (25 January
1991), Official Gazette of the Socialist Republic of Macedonia, No 5,Year XLVII (Skopje,
1 February 1991): Annex 13.
17
“Decision Promulgating the Amendments LXXXII to LXXXV to the Constitution of
the Socialist Republic of Macedonia” (7 June 1991), Official Gazette of the Socialist
Republic of Macedonia, No. 27, Year XLVII (Skopje, 11 June 1991):Annex 14.
18 See, for example: the letter dated 14 September 1979 from the Respondent’s President,
Constantinos Tsatsos, to the Government of the Socialist Republic of Macedonia (“la
République Socialiste de Macédoine”), and the letter dated 10 December 1990 from
the Consul General of the Respondent in Skopje to the Foreign Affairs Committee of
the Socialist Republic of Macedonia (“Comité sur les Relations avec l’Etranger de la
République Socialiste de Macédoine”), appended to the letter dated 5 February 1993
and Memorandum from the Applicant’s President, Kiro Gligorov, to the United Nations
Secretary-General: (Annex 27). The Republic was renamed the ‘Socialist Republic
of Macedonia’ in 1963, following the renaming of the Federal People’s Republic of
Yugoslavia as the Socialist Federal Republic ofYugoslavia. It had previously been known
as the ‘People’s Republic of Macedonia’ (Narodna Republika Makedonija) from the
founding of the former Yugoslavia in 1945 until 1963, a name used in treaties to which
the Respondent was a party. See, for example, the 1959 bilateral Convention between
the Federal People’s Republic of Yugoslavia and the Kingdom of Greece Concerning
Mutual Legal Relations, concluded between the Respondent and the former SFRY in
Athens on 18 June 1959, which provides at Article 7: “Applications for legal assistance
shall be made through the competent Ministry and or State Secretariat of Justice; the said
Ministry and State Secretariats (in the case ofYugoslavia, the State Secretariats of Justice
- 15 -Declaration of 25 January 1991 was confirmed by way of a referendum in which
participants voted overwhelmingly by a 95 percent majority (on a 75 percent
electoral turnout) in favour of a “sovereign and independent Macedonia”. 19
Based on the results of the referendum, on 17 September 1991, the Assembly
of the Applicant adopted a “Declaration” which asserted the sovereignty and
20
independence of the State and the right of its people to self-determination,
confirming thewillof theState’s citizens expressed in thereferendumand seting
out the basic principles of the State’s foreign policy.This foundational document
of the new State unequivocally underscored the Applicant’s acceptance and
observance of accepted norms and principles of international relations, including
the principles of territorial integrity and sovereignty and non-interference in
the internal affairs of other states. Article 2 provides as follow:
“As a sovereign and independent state, the Republic of Macedonia
shall be committed to the consistent respect for the generally accepted
principles of international relations contained in the UN documents, the
CSCEHelsinkiFinalDocumentandtheParisCharter.Asaninternational
law subject, the Republic of Macedonia shall be guided by the principle
of the respect for international norms governing relations between states
and by the total respect for the principles of territorial integrity and
sovereignty, non-interference in internal affairs, the furtherance of
of the People’s Republics of Serbia, Croatia, Slovenia, Bosnia-Herzegovina, Macedonia
and Montenegro) shall correspond with one another directly for this purpose” [emphasis
added], UNTS vol. 368, p. 87: (Annex 2). This Convention still remains in force between
the Respondent and theApplicant pursuant toArticle 12(1) of the InterimAccord of 1995
(Annex 1), which provides:
A “Upon entry into force of this Interim Accord, the Parties shall in their relations
be directed by the provisions of the following bilateral agreements that▯ had been
concluded between the former Socialist Federal Republic of Yugoslavia and the
Party of the First Part on 18 June 1959:
A (a) The convention concerning mutual legal relations...”
19 “Results of the Referendum held on 8 September 1991 in the Republic of Macedonia”,
Official Gazette of the Republic of Macedonia, No. 43,Year XLVII (Skopje, 20 September
1991): Annex 16
20 “Declaration” (17 September 1991), Official Gazette of the Republic of Macedonia, No.
42, Year XLVII (Skopje, 18 September 1991): Annex 15.
- 16 - respect and trust between states and the development of comprehensive
cooperation with all countries and nations, based on mutual interest.”▯
2.4. Article3setsoutthecommitmentofthenewStatetogoodneighbourliness.
It provides in material part as follows:
“In furtherance of these principles, the Republic of Macedonia shall
be committed to the comprehensive development of good-neighborly
relations and cooperation with all its neighbours, as well as to the
development and cooperation with all European and other countries,
international organizations and groups... .”
2.5. The Declaration also called for a strict respect of existing borders
and reaffirmed the Applicant’s lack of territorial claims on any neighbouring
countries. Article 4 provides:
“Strictly adhering to the principle of the inviolability of borders, and
as a guarantee of peace and security in the region and more widely, the
RepublicofMacedoniaherebyreaffirmsthatitsdoesnotharbourterritorial
claims or territorial aspirations against any country in its neighborhood.
Furthermore, the Republic of Macedonia shall act decisively against any
violation of or threats against its territorial integrity and sovereignty.The
Republic of Macedonia shall strictly adhere to the principle of peaceful
dispute resolution in its dealings with other states through negotiation
and on the basis of mutual respect.” 21
21 On 13 November 1991, the Applicant’s President, Kiro Gligorov, wrote to the
Respondent’s Prime Minister, Constantine Mitsotakis, informing him of the Declaration
of 17 September 1991 and underscoring the solemn commitment by the Applicant to
the “persistent respect of the generally adopted principles of international relations”
and to the development of good neighbourly relations. The letter further underscored
the Applicant’s commitment to the principle of the inviolability of borders, and its
“strong and unequivocal confirmation” of its lack of any “territorial claims” against any
neighbouring country “including the Hellenic Republic”:Annex 48.
- 17 -2.6. This Declaration was followed by the adoption on 17 November 1991
22
of a new Constitution, which reaffirmed the inviolability of state borders.
Article 3 of the new Constitution provided:
“TheterritoryoftheRepublicofMacedoniaisindivisibleandinalienable.
The existing borders of the Republic of Macedonia are inviolable.
The borders of the Republic of Macedonia may be changed only in
accordance with the Constitution.” 23
2.7. Article8ofthenewConstitutiondeclaredtheruleoflawasafundamental
system of government:
“The fundamental values of the constitutional order of the Republic of
Macedonia are:
– the fundamental freedoms and rights of the individual and citizen,
recognized in international law and determined in the Constitution;
– the free expression of national identity;
– the rule of law;
– the separation of state powers into legislative, executive and judicial;
– political pluralism and free, direct and democratic elections;
– the legal protection of property;
– the freedom of the market and entrepreneurship;
– humanity, social justice and solidarity;
22
“DecisiononPromulgatingtheConstitutionoftheRepublicofMacedonia”(17November
1991), Official Gazette of the Republic of Macedonia, No. 52, Year XLVII (Skopje, 22
November 1991): Annex 17.
23 Article 3 was amended by way of constitutional amendment on 6 January 1992; see the
“Decision Promulgating Amendments I and II to the Constitution of the Republic of
Macedonia” (6 January 1992), Official Gazette of the Republic of Macedonia, No. 1,Year
XLVIII (10 January 1992): Annex 19 (see further para. 2.12 and note 33 below). It now
reads as follows:
A “The territory of the Republic of Macedonia is indivisible and inviol▯able.
A The existing borders of the Republic of Macedonia are inviolable.
A
The borders of the Republic of Macedonia can only be changed in accordance with the
Constitution and on the principle of free will, as well as in accordance with generally
accepted international norms.
A The Republic of Macedonia has no territorial pretensions towards any neighboring state.”
- 18 - – local self-government;
– space development based on urban and rural planning to promote
and improve social wellbeing and protection and promotion of the
environment and nature; and
– respect for the generally accepted norms of international law.
Anything that is not prohibited by the Constitution or by law is permitted
in the Republic of Macedonia.”
2.8. Articles 9 to 49 guaranteed respect for fundamental human rights,
minority rights and socio-economic rights. The Constitution also emphasized
theApplicant’s policy aimed at the recognition and respect of the human rights
and freedoms of minority groups identifying themselves as Macedonian living
in neighbouring states (Article 49). 24
Section II. The Quest for International Recognition: the European
Community and the United Nations
2.9. This section provides the contextual information to explain the
circumstances in which the Interim Accord came to be drafted and agreed by
the Parties. As made clear in Chapter I, the dispute before the Court does not
relate to the difference between the Parties concerning the Applicant’s name.
24 Article49wasamendedbywayofconstitutionalamendmenton6January1992toinclude
an additional provision clarifying that “[i]n the exercise of this concern the Republic will
not interfere in the sovereign rights of other states or in their internal affairs…”: see
the “Decision Promulgating Amendments I and II of the Constitution of the Republic
of Macedonia” (6 January 1992), supra: Annex 19 (see further paragraph 2.12 below).
In relation to the issue of minorities, see further, for example: the Council of Europe,
Commissioner for Human Rights, Report by Thomas Hammarberg, Commissioner
for Human Rights of the Council of Europe, following his visit to Greece on 8-10
December 2008. Issue reviewed: Human rights of minorities, (19 February 2009),
CommDH(2009)9), paragraph 16; see also UN Human Rights Council, Report of the
Independent Expert on Minority Issues, Gay McDougall: addendum: mission to Greece
(8-16 September 2008), (18 February 2009), A/HRC/10/11/Add.3, paragraphs 84 and
90; Council of Europe, European Commission against Racism and Intolerance, Third
Report on Greece, (8 February 2004), CRI(2004)24, paragraph 81. See also: Ouranio
Toxo and Others v. Greece, (2007) 45 EHRR 8, paragraph 40 and Sideropoulos and
Others v. Greece, (1999) 27 EHRR 633, paragraphs 30-47.
- 19 - A. InItI Al e n Ag e m e ntIt ht h ee u r o pen C o m m uIt y
2.10. Following its proclamation of independence, the Applicant, along
with other former Yugoslav republics, sought recognition from the European
Community (EC). It participated in the Peace Conference on the Former
Yugoslavia and engaged with the Arbitration Commission (known as “the
25
Badinter Committee”, after its chair Robert Badinter), set up under the auspices
of the EC to evaluate applications for recognition made to the EC by former
Yugoslav republics. The Badinter Committee was mandated to assess claims
for recognition against the Declaration on the Guidelines on the Recognition
of New States in Eastern Europe and the Soviet Union (“the Guidelines”) 26and
25 The Badinter Committee comprised five senior jurists from different European Countries:
Mr Badinter, President of the French Constitutional Court, the Presidents of the German,
Spanish and Italian Constitutional Courts, namely Roman Herzog, Franciso Tomás y
Valiente andAldo Corasaniti, and the President of the Belgian Court ofArbitration, Irene
Petry. Established by the Council of Ministers of the EC, the Committee provided legal
advice on applications for recognition made by former Yugoslav states, as well as on
other legal matters arising from the dissolution of SFRY.
26 Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and
the Soviet Union”, annexed at Annex II to a letter dated 17 December 1991 from the
RepresentativesofBelgium,FranceandtheUnitedKingdomofGreatBritainandNorthern
IrelandaddressedtothePresidentoftheUnitedNationsSecurityCouncil,UNdoc.S/23293
(17 December 1991): Annex 24. TheGuidelines underscored the EC’s recognition of the
“theprincipleofself-determination”andaffirmedthereadinessoftheECtorecognizenew
states “subject to the normal standards of international practice and the political realities in
each case.” The Guidelines provided that, in order to be recognized, new States must have
“constituted themselves on a democratic basis, have accepted the appropriate international
obligations and have committed themselves in good faith to a peaceful process and to
negotiations.” The Guidelines further set out the following requirements which former
Yugoslav republics had to satisfy in order for recognition to be granted
“– Respect for the provisions of the Charter of the United Nations and the
commitments subscribed to in the Final Act of Helsinki and in the Charter of
Paris, especially with regard to the rule of law, democracy and human rights;
– Guarantees for the rights of ethnic and national groups and minorities in
accordance with the commitments subscribed to in the framework of the CSCE
[Commission on Security and Cooperation in Europe];
– Respect for the inviolability of all frontiers which can only be changed by
peaceful means and by common agreement;
– Acceptance of all relevant commitments with regard to disarmament and nuclear
non-proliferation as well as to security and regional stability;
– Commitment to settle by agreement, including where appropriate by recourse to
arbitration, all questions concerning State succession and regional disp▯utes.”
- 20 -the Declaration on Yugoslavia (“the Declaration”), 27 issued by EC Foreign
Ministers at an Extraordinary Meeting in Brussels on 17 December 1991.
The Declaration provided that any former Yugoslav republic wishing to be
recognized as an independent state should submit its application for recognition
– which was to include a statement of acceptance of the principles set out in the
Declaration and Guidelines – to the newly established Badinter Committee. It
also included a specific condition for recognition, included at the insistence of
the Respondent and directed to the Applicant, which provided as follows:
“The Community and its Member States also require a Yugoslav
Republic to commit itself, prior to recognition, to adopt constitutional
and political guarantees ensuring that it has no territorial claims towards
a neighbouring community State and that it will conduct no hostile
propaganda activitiesversus aneighbouring community State, including
the use of a denomination which implies territorial claims.”
2.11. TwodaysaftertheBrusselsMeeting,on19December1991,theAssembly
of theApplicant adopted the “Declaration on the International Recognition of
the Republic of Macedonia as a Sovereign and Independent State”. 28 The
Declaration underscored theApplicant’s desire for international recognition as
an independent and sovereign state and its commitment to the EC Guidelines
and Declaration.
2.12. TheApplicant’s formal request for recognition by EC Member States
was submitted to the EC on 20 December 1991 29 and was considered by
the Badinter Committee over the following month. During that time, the
27
Declaration on Yugoslavia, annexed at Annex I to a letter dated 17 December 1991 from
the Representatives of Belgium, France and the United Kingdom of Great Britain and
Northern Ireland addressed to the President of the United Nations Security Council, UN
doc. S/23293 (17 December 1991): Annex 24.
28 “Declaration on the International Recognition of the Republic of Macedonia as a
Sovereign and Independent State” (19 December 1991), Official Gazette of the Republic
of Macedonia, No. 57, Year XLVII (24 December 1991): Annex 18.
29 Letter dated 20 December 1991 from the Applicant’s Minister for Foreign Relations, Dr.
DenkoMaleski,tothePresidentoftheCouncilofMinistersoftheEuropeanCommunities:
Annex 107.
- 21 -Applicant, once again, reaffirmed unequivocally in dialogue with the Badinter
Committee that it harboured no irredentist claims towards – nor would it engage
in any hostile activity against – the Respondent or any other European state. 30
Furthermore, it was willing to reiterate those commitments – already set out
inArticles 2 to 4 of the Declaration “on [the] sovereign and independent state
of Macedonia” of 17 September 1991 of (see paragraphs 2.3 to 2.5 above) and
already guaranteed underArticles 3 and 8 of its Constitution (see paragraphs
2.6 and 2.7 above) – by way of constitutional amendment, in order to allay the
Respondent’s fears. 31Amendments 1 and 2 to the Constitution place beyond
doubt the Applicant’s lack of territorial claims in relation to the Respondent
or to any other state:
“Amendment 1
1. The Republic of Macedonia has no territorial pretentions towards
neighbouring state.
2. The borders of the Republic of Macedonia can only be changed in
accordancewith theConstitution, and on theprincipleof freewill, as
wellas in accordancewith generally accepted internationalnorms... .
30
See, for example, the responses by the Applicant’s Ministry of Foreign Relations to
questions posed by the Badinter Committee, Answers of the Republic of Macedonia to
the Questions of the Arbitration Commission of the Conference for Peace in Yugoslavia
(29 December 1991): Annex 108; and the formal undertaking, given by the Applicant’s
Minister for Foreign Affairs, Dr. Denko Maleski, by way of letter dated 10 January 1992
to the President of theArbitration Commission of the Conference on Yugoslavia, that the
Applicant would refrain from any hostile propaganda against any neighbouring Member
StateoftheEuropeanCommunity:(Annex111),asreferencedatparagraph2ofArbitration
Commission’s Opinion No. 6 on the Recognition of the Socialist Republic of Macedonia
by the European Community and its Member States (14 January 1992), annexed at
Annex III to the letter dated 26 May 1993 from the United Nations Secretary-General
to the President of the Security Council, UN doc. S/25855 (28 May 1993): Annex 33.
31 “Decision Promulgating Amendments I and II to the Constitution of the Republic of
Macedonia”,supra:Annex 19. See also the letter dated 6 January 1992 from theApplicant’s
Minister for Foreign Affairs, Dr. Denko Maleski, to the President of the Arbitration
Commission of the Conference on Yugoslavia, Robert Badinter, informing him of the
adoption of the constitutional amendments by theApplicant’sAssembly:Annex 110. It is
important to underscore that this is one of the only examples in history of a State voluntarily
amending its constitution in order to allay the concerns of a neighbouri▯ng State.
- 22 - Amendment 2
1. In the exercise of this concern the Republic will not interfere in the
32
sovereign rights of other states or in their internal affairs ...”.
2.13. In its Opinion No. 6 of 14 January 1992, 33 the Badinter Committee
determined that the Applicant fulfilled all the conditions for recognition as
determined by the EC. It noted in particular that the Applicant had formally
renounced all territorial claims and confirmedinter alia that “the use of the name
Macedonia” did not imply any territorial claim against the Respondent. 34
32 “Decision Promulgating Amendments I and II to the Constitution of the Republic
of Macedonia”, supra. Clause 1 of Amendment I is an Addendum to Article 3 of the
Constitution. Clause 2 of Amendment I replaces Paragraph 3 of the same Article.
Amendment II is anAddendum to paragraph 1 ofArticle 49 of the Constitution. Twenty-
nine further amendments have been made to the Constitution since 1992: see “Constitution
of the Republic of Macedonia: with the amendments to the constitution I-XXX”, Official
Gazette of the Republic of Macedonia , ISBN 978-9989-617-65-2 (Skopje, 2007) at
http://www.slvesnik.com.mk/WBStorage/Files/USTAV-eng.pdf, and the “Decision Pro-
mulgatingAmendment XXXI to the Constitution of the Republic of Macedonia”, Official
Gazette of the Republic of Macedonia, No. 3 (Skopje, 9 January 2009).
33
Arbitration Commission on the Conference on Yugoslavia, Opinion No. 6 on the
Recognition of the Socialist Republic of Macedonia by the European Community and its
Member States (14 January 1992) annexed at Annex III to the letter dated 26 May 1993
from the United Nations Secretary-General to the President of the Security Council, UN
doc. S/25855 (28 May 1993):Annex 33. This was one of four Opinions handed down by
the Badinter Committee on 14 January 1991, concerned with the question of whether the
individual former Yugoslav federal republics in question, namely Bosnia-Herzegovina
(Opinion 4), Croatia (Opinion 5), Macedonia (Opinion 6) and Slovenia (Opinion 7),
had satisfied the conditions for recognition by EC Member States, as laid down by the
Council of Ministers of the EC on 16 December 1991.
34
See paragraph 5 of Opinion 6, supra, at pg. 11:
“...the Republic of Macedonia satisfies the tests in the Guidelines on the Recognition
of New States in Eastern Europe and in the Soviet Union and the Declaration on
YugoslaviaadoptedbytheCounciloftheEuropeanCommunitieson16December1991;
-...the Republic of Macedonia has, moreover, renounced all territorial claims of any
kind in unambiguous statements binding in territorial law; ... the use of the name
“Macedonia” cannot therefore imply any territorial claim against another State
[emphasis added]; and
- ...the Republic of Macedonia has given a formal undertaking in accordance
with international law to refrain, both in general and pursuant to Article 49 of its
Constitution in particular, from any hostile propaganda against any other State...”.
- 23 -2.14. However, to the considerable regret of theApplicant, the EC Member
States, under direct pressure from the Respondent, 36set aside the clear legal
advice provided by the Badinter Committee and declined to grant recognition
to the Applicant. 37 Therefore, as a result of the Respondent’s objections, and
despite unequivocal independent confirmation that the Applicant harboured
no territorial claims against the Respondent, theApplicant remained in a state
of suspense, denied recognition of its independent statehood.
35 See, for example, the statement of theApplicant’s President, Kiro Gligorov, Statement on
the Declaration of the European Community on Macedonia, dated 2 May 1992 (2 May
1992): Annex 115; and the “Declaration” of the Assembly of the Applicant in relation to
the Declaration on the former Yugoslavia of the Council of the European Communities
(3 July 1992): Annex 20.
36
See letters from the Respondent’s President, Kostas Karamanlis to the EC Heads of
Government dated 3 January 1992: (Annex 109); and to Italy’s Prime Minister dated 21
January 1992: (Annex 113) both in G. Valinakis & S. Dalis (eds.), The Skopje Question
— Attempts towards Recognition and the Greek Position, Official Texts 1990-1996, (2nd
ed.,1996),Sideris/ELIAMEP,atpp.63-64and83-84respectively;andtheletterdated17
January1992fromtheRespondent’sMinisterforForeignAffairs,AndonisSamaras,tothe
European Communities Foreign Ministers) and the Official address of the Respondent’s
Minister for Foreign Affairs, Andonis Samaras, Address of Foreign Minister Andonis
Samaras (Lisbon, 17 February 1992) in A. Tziambiris, Greece, European Political
Cooperation and the Macedonian Question (2000), at pp. 207-213 (Annex 112) and pp.
218-232 (Annex 114) respectively .
37 On 15 January 1992, the EC announced that it would give official recognition to Slovenia
and Croatia exclusively, effectively setting aside the legal advice of the Badinter
Committee (Statement by the Presidency on Recognition of Yugoslav Republics (15
January 1992), EPC Press Release 9/92). Subsequent decisions and pronouncements by
the EC bodies made clear that the refusal to recognize the Applicant was due to the
Respondent’s opposition to the name of the State: see for example the statement made
by the Council of Ministers at Guimaraes on 2 May 1992 to the effect that EC Member
States“werewillingtorecognisethatState[theApplicant]asasovereignandindependent
state, within its existing borders, and under a name that can be accepted by all parties
concerned”, (Informal Meeting of Ministers for Foreign Affairs, Declaration on the
former Yugoslav Republic of Macedonia, Guimaraes, 1-2 May 1992, EPC Press Release
53/92); and the statement by the Council of the EC at the Lisbon Summit of 27 June 1992
that it would only recognize the newApplicant “under a name which does not include the
term Macedonia”, (European Council, Declaration on the former Yugoslavia, Lisbon, 27
June 1992, Bull. EC 6-1992, p. 22: http://aei.pitt.edu/1420/01/Lisbon_june_1992.pdf ), a
position maintained at the EC Summit in Edinburgh on 12 December 1992 (European
Council, Conclusions of the Presidency, SN/456/92, Section D, External Relations
(11-12 December 1992): http://www.europarl.europa.eu/summits/edinburgh/d0_en.pdf ).
- 24 -2.15. The failure by the EC to recognize the Applicant was followed by a
vote of no confidence in the Applicant’s Government in July 1992, leading to
fears that it could spark serious social unrest within the fledgling state. Those
fears were compounded by a fuel embargo imposed by the Respondent on the
Applicant inAugust 1992 on all oil imports, which caused extreme economic
damage to the Applicant 38 and was to serve as a prelude to the full economic
embargo the Respondent was to impose on the Applicant in 1994. 39Due to
the lack of international recognition of the Applicant, membership of – and
assistance from – international financial institutions and organizations, such
as the World Bank, remained out of reach for theApplicant during this period
of economic crisis. 40
B. th e A p pI Cn t’s m e mBe r sIp o ft h u nIt e dn AtIo n sAn dr e s o l utn 817
2.16. Duringthecourseof1992andearly1993theindependentstatehoodofthe
Applicant was recognized by a number of states, including Bulgaria, 41Turkey, 42
Croatia, 43 Slovenia, 44 Lithuania, 45 the Russian Federation, 46and Morocco. 47
However, recognition by the EC and its Member States remained elusive,
due primarily to the Respondent’s objections to the Applicant’s constitutional
38
See the letter dated 1 October 1992 from the Applicant’s President, Kiro Gligorov, to the
ForeignAffairs Minister of the Kingdom of the Netherlands, Hans van den Broek: (Annex
117); similar letters were sent to all EC States’ foreign ministers. The difficulties faced
by the Applicant in gaining international recognition due to the difference over the name
were widely recognized as one of the significant risks to the internal stability of the State.
See for example the United States Congressional Research Service, Report for Congress
on Macedonia: Recognition and Conflict Prevention (Washington DC, April 1993), p. 4.
39
See further paragraphs 2.27 to 2.28 below.
40
See for example, President of the Applicant, Exposé at the Fifty-second Session of the
Assembly of the Republic of Macedonia (Skopje, 9 December 1992): Annex 118.
41 15 January 1992.
42 6 February 1992.
43 12 February 1992.
44 12 February 1992.
45 25 June 1992.
46 5 August 1992.
47 18 September 2002.
- 25 -name. It was against this background that the Applicant sought membership
of the United Nations. On 30 July 1992 it submitted a formal application for
membership to the United Nations 49which was forwarded by the United Nations
Secretary-General to the Security Council by way of a Notedated 22 January
50
1993.
2.17. TheApplicant’s request for membership of the United Nations was met
with strong objections from the Respondent, similar to those raised within the
51
EC context. However, in March 1993, following protracted negotiations led
by the three EC members on the Security Council (France, Spain and the United
Kingdom), the Parties eventually agreed to measures to enable the Applicant
48 See in this regard, for example, Office of the President, Statement by the Applicant’s
President, Kiro Gligorov, in respect of the EC Declaration of June 27, 1992 in Lisbon,
following the determination by the EC not to recognize the Applicant under any name
containing the word ‘Macedonia’, (Skopje, 28 June 1992): Annex 116.
49 Note by the United Nations Secretary-General, circulating the application dated 30 July
1992 from the Applicant’s President, Kiro Gligorov, for admission to membership of the
United Nations, UN doc. S/25147 (22 January 1993): Annex 25.
50 ThedelaywasinlargepartintendedtofacilitatevariousmediationeffortsfacilitatedbytheEC,
underthepresidenciesofPortugalandtheUnitedKingdom,tofindaresolutiontothedifference
concerningApplicant’sname.However,inDecember1992,despitetheApplicantnotbeing
amemberoftheUnitedNations,andattherequestoftheApplicant,theSecurityCouncil,by
wayofresolution795of11December1992,authorizedtheSecretary-Generaltoestablisha
UnitedNationspresenceintheApplicantstate,topreventinstabilitywithinthecountryand
to prevent it being drawn into the conflicts raging in other parts of the former Yugoslavia.
Resolution795referredtotheApplicantas‘theformerYugoslavRepublicofMacedonia ’.
51 Seetheletterdated25January1993fromtheRespondent’sPermanentRepresentativetothe
United Nations,Antonios Exarchos, to the United Nations Secretary-General, forwarding
a letter and annex of the same date from the Respondent’s Minister for Foreign Affairs,
MichaelPapaconstantinou,totheUnitedNationsSecretary-General,UNdoc.S/25158(25
January 1993), formally objecting to the admission of theApplicant to membership of the
UnitedNations“priortoasettlementofcertainoutstandingissuesnecessaryforsafeguarding
peace and stability, as well as good neighbourly relations in the region”, UN doc. S/25158
(25 January 1993):Annex 26. TheApplicant’s President, Kiro Gligorov, responded to the
Respondent’s allegations in a memorandum submitted to the United Nations Secretary-
General on 5 February 1993:Annex 27 .
- 26 - 52
to become a member of the United Nations. Thus, United Nations Security
53
Council resolution 817 of 7 April 1993 provides as follows:
“The Security Council,
Having examined the application for admission to the United Nations
in document S/25147,
Noting that the applicant fulfils the criteria for membership in the United
Nations laid down in Article 4 of the Charter,
Noting however that a difference 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,
Welcoming the readiness of the Co-Chairmen of the Steering Committee
of the International Conference on the FormerYugoslavia, at the request
of the Secretary-General, to use their good offices to settle the above-
mentioned difference, and to promote confidence-building measures
among the parties,
Taking note of the contents of the letters contained in documents
S/25541, S/25542 and S/25543 received from the parties,
1. UrgesthepartiestocontinuetocooperatewiththeCo-Chairmenofthe
Steering Committee of the International Conference on the Former
Yugoslaviainordertoarriveataspeedysettlementoftheirdifference;
2. Recommends to the General Assembly that the State whose
application is contained in document S/25147 be admitted to
52 See letters from theApplicant’s Prime Minister, Branko Crvenkovski, to the President of
the Security Council dated 24 March 1993, UN doc. S/25541 (6 April 1993): Annex 28;
and 5April 1993, UN doc. S/25542 (6April 1993):Annex 29; and the letter dated 6April
1993 from the Respondent’s Minister for Foreign Affairs, Michael Papaconstantinou,
to the President of the Security Council, UN doc. S/25543 (6 April 1993): Annex 30.
Agreed measures included, inter alia, the non-hoisting at the United Nations buildings of
the Applicant’s national flag on the date of its admission (see UN doc. S/25543 (6 April
1993):Annex 30), and the seating of theApplicant in the GeneralAssembly under ‘T’for
‘the’ former Yugoslav Republic of Macedonia, rather than under ‘M’ (as sought by the
Applicant) or ‘F’(as sought by the Respondent).
53
United Nations Security Council resolution 817 (1993) (SC/RES/817) (7 April 1993):
Annex 22.
- 27 - 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. Requests the Secretary-General to report to the Council on the
outcome of the initiative taken by the Co-Chairmen of the Steering
CommitteeoftheInternationalConferenceontheFormerYugoslavia.”
2.18. Preambular paragraph 2 of resolution 817 made clear that there was
no dispute that the Applicant fulfilled all the criteria for membership of the
54
United Nations Charter. Although resolution 817 urged the Parties to cooperate
to arrive at a speedy settlement of their difference regarding the Applicant’s
name, under the auspices of the United Nations Secretary-General, the text of
resolution 817 also made clear that theApplicant’s membership of the United
Nations was in no way qualified or conditional on any such settlement.
2.19. TheApplicant is not identified by name within resolution 817. Rather,
the State is referred to as “the State whose application is contained in document
S/25147” 55or simply as “the State”. In view of the “difference” between the
parties concerning the Applicant’s name, the Resolution provides that the
Applicant will be “provisionally referred to ... within the United Nations as
‘the formerYugoslav Republic of Macedonia’”, until such time as a settlement
is reached between the Applicant and the Respondent regarding the name
56
of the State. Thus, following resolution 817, by way of General Assembly
Resolution 225, 57theApplicant was admitted to the United Nations on 8April
54 As set out atArticle 4 of the United Nations Charter: “Membership in the United Nations
is open to all other peace-loving states which accept the obligations contained in the
present Charter and, in the judgment of the Organization, are able and willing to carry
out these obligations.”
55 The application to join the United Nations was made in the name of the ‘Republic of
Macedonia’.
56 Resolution 817, supra:Annex 22, see also note 52 supra:Annexes 28-30 .
57
This followed a favourable opinion of the Committee on the admission of new members:
Report of the Committee on the Admission of New Members Concerning the Application
- 28 - st
1993, becoming its 181 member. It took up its seat alphabetically next to
Thailand, under the letter ‘t’(as in ‘the’).
2.20. As is made clear by the language of paragraph 2 of Resolution 817,
‘the former Yugoslav Republic of Macedonia’ was not intended to represent
a new provisional name for the Applicant state; rather, the formulation was a
provisional descriptive designation referring to the State’s previous status in
order for it to be identifiable within the UN, pending resolution of the dispute
over its name. 58Significantly, the Resolution did not require theApplicantto call
itself ‘the former Yugoslav Republic of Macedonia’, and the Applicant never
agreed to refer to itself as such. Consequently, in accordance with resolution
817 and without raising any difficulties with the United Nations Secretariat,
the Applicant has always used its constitutional name in written and oral
communications with the United Nations, its members and officials:
• Written communications: Written documents, including letters, notes
verbales, reports and ratification instruments are submitted by the
Applicant to the United Nations using its constitutional name. Where
they are to be circulated as official United Nations documents, a cover
sheet is attached to the document by the United Nations Secretariat,
bearing the United Nations logo and using the provisional reference
referred to in resolution 817, and the document is circulated unaltered. 59
Neither the United Nations nor the Respondent has ever objected to this
practice, or refused to accept or consider documents from theApplicant
in which the Applicant uses its constitutional name. Furthermore, in
signing multilateral agreements for which the United Nations is the
depository, the practice of theApplicant is and has always been for the
for Admission to Membership in the United Nations contained in Document S/25147, UN
doc. S/25544 (7 April 1993): Annex 31.
58 See further Chapter V, para. 5.66.
59 For recent examples, see: the United Nations Human Rights Council, National Report
Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council
Resolution 5/1. The former Yugoslav Republic of Macedonia, UN doc. A/HRC/WG.6/5/
MKD/1 (23 February 2009); General Assembly, Security Council, Letter from the
Permanent Representative of the former Yugoslav Republic of Macedonia to the United
Nations addressed to the Secretary-General, UN doc. S/2008/763 (5 December 2008).
- 29 - person signing on its behalf to insert on the signature page, above his
or her signature and below the provisional reference, the words: “on
behalf of the Republic of Macedonia”. 60
Oral communications: Representatives of the Applicant at the United
Nations always use the Applicant’s constitutional name in oral
communications and statements, as agreed in discussions preceding
resolution 817. This practice is in-keeping with resolution 817, and as
such has never been criticized by the United Nations. The Respondent
routinely objected to the use by representatives of the Applicant of
its constitutional name over the course of the initial years following
the admission of the Applicant to the United Nations, and was
repeatedly advised by the Applicant to seek the opinion of the United
Nations Office of Legal Affairs as to the lawfulness of the Applicant’s
usage. Its objections since that time have been few and far between.
C. u nIt e n AtIo n-le dn e g oItAtIo n sAnseCu rIt C o u C Ir e s o l tn845
2.21. Followingtheadoptionofresolution817,andpursuanttoitsterms,further
negotiations between the Parties, intended to resolve the difference concerning
theApplicant’s name and to devise and seek agreement on “confidence building
measures”, were initiated by the Co-Chairs of the Steering Committee on the
International Conference on the former Yugoslavia, namely Cyrus Vance,
the United Nations representative at the Conference, and Lord Owen, the EC
representative.
2.22. As a result of those discussions, a draft treaty entitledTreaty Confirming
the Existing Frontier and Establishing Measures for Confidence Building,
60 See for example, the following acts of ratification: United Nations, Convention on
Environmental Impact Assessment in a Transboundary Context, C.N.784.1999.
TREATIES-10, (3 September 1999); United Nations, Rome Statute of the International
Criminal Court, C.N.210.2002.TREATIES-6, (7 March 2002); United Nations, United
Nations Convention against Transnational Organized Crime, CN.29.2005.TREATIES-3,
(24 January 2005).
- 30 - 61
Friendship and Neighbourly Cooperation (“the 1993 draft Treaty”) was
presented to the Parties by Mr Vance and Lord Owen on 14 May 1993, and
circulated to the United Nations Security Council, pursuant to resolution 817,
as an annex to a letter from the United Nations Secretary-General dated 26
May 1993. 62The 1993 draft Treaty proposed the name ‘the Republic of Nova
Makedonija’ as a name for the Applicant, “to be used for all official purposes,
63
domestic and international”. It comprised a preamble,inter alia“recalling the
principles of the inviolability of frontiers and the territorial integrity of States...”,
and twenty-five articles, divided into six sections: PartAof the 1993 draftTreaty
set out a number of special provisions designed to promote friendly relations
between the Parties and to constitute confidence-building measures. Parts B to
E set out provisions for mutual respect and neighbourly cooperation: Part B
dealt with human and cultural rights, Part C with European institutions, Part
D with treaty relations, Part E with economic, commercial, environmental and
legal relations, and Part F with final clauses, including the peaceful settlement
of disputes. Part C is the section of the 1993 draft Treaty most relevant to the
current proceedings. It provided as follows at draftArticle 11, under the heading
‘European Institutions’:
“1. The Republic of Greece shall endeavour to support, wherever
possible, the admission of the Republic of Nova Makedonija to those
European institutions of which Greece is a member.
2. The Parties agree that the ongoing economic transformation of the
Republic of Nova Makedonija should be supported through international
cooperation, as far as possible by a closer relationship of the Republic of
Nova Makedonija with the European EconomicArea and the European
Community.”
61
See further Chapter IV, Sections I and II. The 1993 draft Treaty was itself based on
an earlier treaty drafted by Sir Robin O’Neill, Special Envoy of the President of the
European Community, entitled “Treaty for the Confirmation of the Existing Frontier”.
62
Annex V of the letter dated 26 May 1993 from the United Nations Secretary-General,
Boutros Boutros-Ghali, to the President on the Security Council, entitled Draft Proposed
byCyrusVanceandLordOwen,14May1993,UNdoc.S/25855(28May1993):Annex33.
63 Annex I of the letter dated 26 May 1993 from the United Nations Secretary-General,
Boutros Boutros-Ghali, to the President on the Security Council, supra:Annex.33
- 31 -2.23. The 1993 draft Treaty was rejected by the Respondent on 27 May
64 65
1993 and by theApplicant on 29 May 1993, primarily due to the proposal of
‘the Republic of Nova Makedonija’as the name for the Applicant, a proposal
deemed unacceptable by both Parties. In light of the continued lack of agreement
between the Parties, three weeks later, the United Nations Security Council
passed a further resolution, expressing its thanks to the Co-Chairmen of the
Steering Committee of the International Conference on the FormerYugoslavia
for their efforts to find a resolution, and commending the 1993 draft Treaty as
a “basis for the settlement” of the difference concerning theApplicant’s name.
Resolution 845 (1993) provides as follows:
“The Security Council,
Recalling its resolution 817 (1993) of 7 April 1993, in which it urged
Greece and the former Yugoslav Republic of Macedonia to continue
to cooperate with the Co-Chairmen of the Steering Committee of the
International Conference on the Former Yugoslavia in order to arrive
at a speedy settlement of their difference,
Having considered the report of the Secretary-General submitted
pursuant to resolution 817 (1993), together with the statement of the
Government of Greece and the letter of the President of the former
Yugoslav Republic of Macedonia dated 27 and 29 May 1993 respectively
(S/25855 and Add.1 and 2),
1. Expresses its appreciation to the Co-Chairmen of the Steering
Committee of the InternationalConference on the FormerYugoslavia
for their efforts and commends to the parties as a sound basis for
the settlement of their difference the proposals set forth in annex V
to the report of the Secretary-General;
64
Letter dated 28 May 1993 from the United Nations Secretary-General to the President
of the Security Council, circulating a statement transmitted to him by the Respondent’s
AmbassadorandSpecialEnvoy,GeorgeD.Papoulias,on27May1993,UNdoc.S/25855/
Add.1 (3 June 1993): Annex 34.
65
Letter dated 3 June 1993 from the United Nations Secretary-General to the President of
the Security Council, transmitting a letter dated 29 May 1993 to him from theApplicant’s
President, Kiro Gligorov, UN doc. S/25855/Add.2 (3 June 1993): Annex 35.
- 32 - 2. Urges 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;
3. Requests the Secretary-General to keep the Council informed on the
progress of these further efforts, the objective of which is to resolve
the difference between the two parties before the commencement of
the forty-eighth session of the GeneralAssembly, and to report to
the Council on their outcome in good time, and decides to resume
consideration of the matter in the light of the report.” [emphasis
added] 66
2.24. Negotiations continued pursuant to resolution 845 until October
1993 under the lead of Mr Vance, acting as the United Nations Secretary-
General’s Envoy. However, they came to an abrupt end in October 1993
when the Respondent’s newly-elected Socialist government withdrew from
the negotiations with the ultimatum that the Respondent was only willing to
proceed with the negotiations, provided that the Applicant acquiesce to the
Respondent’s demands. 67
d. t h eAp p I Cn ’s g r o In gIn t e rntIo nAlIn t e grtIo nAn dr eCo g ItIo n
An dt h ee Co n o I e mB Ar g o
2.25. Following resolution 817 and pursuant to theApplicant’s membership of
the United Nations, theApplicant was able to secure membership of numerous
66 United Nations Security Council resolution 845 (1993) (SC/RES/845) (18 June 1993):
Annex 23.
67 See the letter dated 5 November 1993 from the Respondent’s Minister of ForeignAffairs,
Karolos Papoulias, to the United Nations Secretary-General: Annex 36; and the letter
in response dated 8 November 1993 from the United Nations Secretary-General to the
Respondent’s Minister of Foreign Affairs, Karolos Papoulias: Annex 37; both in G.
Valinakis & S. Dalis (eds.), op. cit., at pp. 177-180 and 181-182 respectively (Annex 37),
as well as the letter dated 24 November 1993 from the Applicant’s Minister of Foreign
Relations, Stevo Crvenkovski, to the United Nations Secretary-General:Annex 38. This
tougheningoftheRespondent’sstancewasdirectlylinkedtothechangeofitsGovernment:
see the letter dated 31 March 1994 from the United Nations Secretary-General, Boutros
Boutros-Ghali, to the President of the Security Council, UN doc. S/1994/376 (1 April
1994):Annex 39 .
- 33 -United Nations bodies and agencies, including the World Health Organization
68 69
(WHO), the International Labor Organization (ILO) and the United Nations
70
Educational, Scientific and Cultural Organization (UNESCO). However,
the Applicant was met with objections by the Respondent in its attempts to
join various other non-United Nations affiliated international, multilateral and
regional institutions and organizations of which the Respondent was already a
member, including the Council of Europe and the Conference on the Security
and Cooperation in Europe, due to the difference concerning the Applicant’s
name.The destabilizing effect on theApplicant of its unsuccessful applications
to join those organizations was noted by the United Nations Special Rapporteur
of the Commission on Human Rights in his 1994 report on the situation of
human rights in the territory of the former Yugoslavia. His recommendations
relating to the Applicant included:
“... that equal and fair treatment should be given to the formerYugoslav
Republic of Macedonia in regard to its applications to join international
organizations. It is particularly important that the former Yugoslav
Republic of Macedonia be promptly allowed to join all relevant security
mechanisms, particularly the Conference on Security and Cooperation
in Europe.” 71
2.26. AdmissiontotheUnitedNationspavedthewayfordiplomaticrecognition
to be extended to the Applicant by numerous states across the world. Thus, in
themonths following theadoption of Security Councilresolution 817, countries
including New Zealand, 72 Slovakia 73 and the People’s Republic of China 74
68
22 April 1993.
69
28 May 1993.
70
28 June 1993.
71
Note by the United Nations Secretary-General transmitting the Ninth Periodic Report
on the Situation of Human Rights in the territory of the former Yugoslavia, submitted by
Tadeusz Mazowiecki, Special Rapporteur of the United Nations Commission o▯n Human
Rights, UN doc. S/1994/1252 (4 November 1994), p. 52, para. 243: Annex 41.
72 4 April 1993.
73 26 June 1993. Diplomatic relations were established in 4 March 1994.
74 12 October 1993.
- 34 - 75
formally recognized theApplicant. Six European Union (EU) Member States
(Denmark, France, Germany, Italy, the Netherlands and the United Kingdom)
followed suit on 16 December 1993, establishing full diplomatic relations
with the Applicant and, by the end of December 1993, all EU Member States
– with the exception of the Respondent – had recognized the Applicant under
76
the provisional reference. This trend continued through early 1994, with the
United States of America formally recognizing the Applicant on 9 February
77
1994, followed by Japan on 1 March 1994.
2.27. Increased international recognition of the Applicant prompted strong
78
protests on the part of the Respondent, and on 16 February 1994, in direct
response to the recognition of theApplicant by the United States, the Respondent
79
imposed a trade and transit embargo on theApplicant, blocking all goods to the
land-locked State, save for medicine and humanitarian aid.The embargo lasted
80
19 months and cost theApplicant an estimated $1 billion, causing significant
damage to its economy, and bringing the State to the brink of economic collapse.
81
The Respondent’s position was strongly criticized within Europe.
75
The European Union was formally established on 1 November 1993, with the coming
into force of theMaastricht Treaty .
76 Formal diplomatic relations between the Applicant and the EU were established on 10
January 1996.
77 Diplomatic relations were established on 13 September 1995.
78 JohnShea,MacedoniaandGreece:TheStruggletoDefineaNewBalkanNation,McFarland
& Company (1997), p 284 .
79
The Applicant immediately denounced the embargo as “an act violating the provisions
of the Charter of the United Nations, CSCE documents and international law”, Statement
with regard to the decision of the Government of the Republic of Greece of 16 February
1994, UN doc. S/1994/194 (18 February 1994). For the impact of the embargo, see:
Information about the losses the economy of the Republic of Macedonia has suffered as
a consequence of the trade and transport embargo imposed by the Republic of Greece,
Government of the Republic of Macedonia, Skopje, (15 April 1994).
80
The effect of the Respondent’s embargo was heightened by the United Nations embargo on
the Applicant’s main trading partner, Serbia, to the North of the Applicant, cutting off not
only trade, but also trucking routes and theApplicant’s only rail link to the rest of Europe:
UnitedNationsSecretary-General,ReportoftheSecretary-GeneralpursuanttoResolution
908 (1994), UN doc. S/1994/1067 (17 September 1994), paragraph 24: Annex 40.
81
See, for example, Resolution 1027 (1994) of the Council of Europe “strongly
[disapproving] of the measures taken by the Greek Government which could have a
- 35 -2.28. Throughouttheembargo,anddespitethecripplingeffectsonitseconomy
and social structure brought about by the Respondent’s actions, theApplicant
remained fully open and willing to negotiate with the Respondent. 83In October
1994, the Applicant’s President, Kiro Gligorov, used the opportunity of a re-
election speech to reiterate that the Applicant was “... prepared to discuss all
issues of importance to Macedonian-Greek relations which do not threaten
our national identity and the dignity of our country and our people” and “...
prepared to approach the signing of an agreement with the Republic of Greece
regarding the inviolability of our mutual border ... guaranteed by the United
Nations, the European Union, the United States ... .” He also gave yet another
solemn guarantee that the “... Constitution of the Republic of Macedonia does
destabilising effect in a region particularly vulnerable at this time”; further (although it is
accepted that individual Parliamentarians from the Council of Europe cannot be deemed
to represent the views of states), see the comments of Mr Atkinson (United Kingdom) at
the Council of Europe’s ParliamentaryAssembly, ParliamentaryAssembly of the Council
of Europe, 1994 Session, 21st Sitting, (30 June 1994): “[q]uite how Greece thought that
Macedonia could invade its northern territories it has never said, which is not surprising.
It would be impossible for Macedonia to invade Greece. It has had no tanks, no artillery
and no rockets since the Yugoslav army sequestrated all essential military equipment
from Macedonia. True, Macedonia has sixty qualified jet fighter pilots, but it has no
planes for them to fly and there is, of course, no Macedonian navy because Macedonia
has no coast” (Council of Europe, Parliamentary Assembly, Official Report of Debates,
1994 Session, vol. 3, (1998) p. 584). See also, the statement of Mr Seitlinger (France):
“As far as the alleged territorial threats are concerned, MrAtkinson has already explained
that Macedonia is the most demilitarized area in Europe. It does not have a single aircraft,
missile or tank and cannot therefore threaten anyone. The allegation is preposterous.”
(Council of Europe, Parliamentary Assembly, Official Report of Debates, 1994 Session,
vol. 3, p 585 (1998).
82 See, for example, the United Nations Secretary-General’s Report of 17 September
1994, pursuant to Resolution 908 (1994), acknowledging the direct role played by the
Respondent’s embargo in the economic and social crisis faced by the Applicant: UN
doc. S/1994/1067 (17 September 1994), paragraph 24: Annex 40; and the report by the
Special Rapporteur of the United Nations Commission on Human Rights, expressing
concern over the negative influence of the economic situation on the social stability of the
country and its impact on broader social issues: United Nations Commission on Human
Rights, Ninth Periodical Report on the Situation of Human Rights in the former Yugoslav
Republic of Macedonia, submitted by Tadeusz Mazowiecki, UN doc. S/1994/1252 (4
November 1994), p. 49, paragraph 225: Annex 41.
83 See, for example, the letter dated 23 February 1994 from the Applicant’s President,
Kiro Gligorov, to the Respondent’s Prime Minister, Andreas Papandreou, requesting a
meeting and reiterating the Applicant’s readiness to sign an agreement guaranteeing the
inviolability of the border between the Applicant and the Respondent, guaranteed by the
United Nations or the EU: Annex 49.
- 36 -not contain any territorial pretensions nor expressions of interference in the
internal affairs of Greece or any other neighbor.” 84
Section III. The Interim Accord and its Application
A. t h eC o n t e tn d st r Ct u r eo ft hIn t eIm A C Co r d
2.29. Against the background set out in Section II, the Parties negotiated and
adopted the Interim Accord. The Interim Accord is a provisional agreement,
intended to enable and facilitate the bilateral relationship between theApplicant
and the Respondent for the period prior to a permanent agreement resolving
the name difference. It contains one provision, Article 5, which reaffirms the
framework for negotiations concerning the name difference.
2.30. The text of the Interim Accord was largely based on the 1993 draft
85
Treaty proposed by Mr Vance and Lord Owen, and its structure and many
of its provisions mirror those of the 1993 draft Treaty. It was signed on 13
September 1995 by the Parties’Foreign Ministers, after six months of intense
diplomatic activity following the reengagement by the Respondent in bilateral
negotiations with the Applicant. 86
2.31. Pursuant to the InterimAccord, the Respondent undertook to recognize
theApplicantundertheprovisionaldesignationof‘theformerYugoslavRepublic
of Macedonia’ (Article 1) and to lift the embargo imposed against it (Article
8). For its part, theApplicant reaffirmed that it did not hold or pursue territorial
claims against the Respondent, and that nothing in its Constitution should
be construed as such (Article 6). The Applicant also undertook to change its
84 The Applicant’s President’s, Inaugural Address at the Inauguration Ceremony at the
Parliament of the Republic of Macedonia (Skopje, 19 November 1994):Annex 122.
85 As described in paragraphs 2.22 and 2.23 above, and as dealt with in detail in Chapter IV
below.
86 The deal, mediated by UNSG personal envoy Mr Vance, with the assistance of US
Assistant Secretary of State Richard Holbrooke, was signed on the eve of the Dayton
negotiations that ended the war in Bosnia-Herzegovina.
- 37 -national flag (Article 7), a significant concession that was made in the interests of
developing a peaceful relationship and ending the Respondent’s embargo. 87
2.32. Articles 2 to 4 of the Interim Accord reaffirm the Parties’ respect for
the “enduring and inviolable” nature of the border between the two Parties
and for their respective “sovereignty ... territorial integrity and ... political
independence”. Both Parties undertook not to seek to alter the border between
the two States or to support any call for such an alteration. Pursuant toArticle 7,
the Parties further agreed to take effective measures to prohibit hostile activities
or propaganda by State agencies and to discourage any such acts by private
entities.Article 7(3) provides for specific procedures to be followed where one
of the Parties believes that the other may be using “symbols constituting part
of its historic or cultural patrimony”:
“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.”
2.33. Thus, the Interim Accord provided for the normalization of relations
between theApplicant and the Respondent and set forth a framework for settling
the difference concerning the Applicant’s name and for developing practical
measures to prevent the difference concerning the name from affecting bilateral
relations (Article 5), and a framework for fostering and developing good
neighbourly relations and mutual cooperation. It also included commitments
relating to human and cultural rights (Articles 9 and 10), international,
87 As stated by theApplicant’s President Gligorov in a television interview of 16 September
1995: “Are we now going to wage a battle after 2,300 years? Are we going to transform
this question into a Cypriot issue that cannot be solved even after 10 years? If we wage
a battle for the symbol, we could find ourselves in the following situation: Our young
people who are now 20 years old will be 40 years old before they can start a normal
life, before they have access to the world, and before we start the process of joining the
European Union. Do we have to pay this price for insisting on the symbol? The symbol is
beautiful, the flag is also beautiful, but when all matters are seen from both sides, I think
that, in the absence of understanding from anybody in the world, we would have waged
a quixotic battle for something that has often been a subject of Balkan wars in history.”
Nova Makedonija, (Skopje, 17 September 1995).
- 38 -multilateral and regional institutions (Article 11), treaty relations (Articles 12
to 14), economic, commercial, environmental and legal relations (Artic▯les 15
to 20), and the peaceful settlement of disputes (Article 21).
B.r e f e r e t ot hAep pI Cn tIn t hIn t ImrA C Co r dAnrde lAt eAdg r e e m e n t s
2.34. The InterimAccord was not intended to introduce a final solution with
respect to the difference concerning the Applicant’s name. Rather, pursuant
to Article 5(1), the Parties undertook to resume negotiations concerning that
difference, under the auspices of the United Nations Secretary-General, pursuant
to Security Council resolution 845.
2.35. Avoiding the use of any names, the Interim Accord refers to the
Respondent as the ‘Party of the First Part’, and the Applicant as the ‘Party of
the Second Part’. Neither Party is referred to by its constitutional name nor is
the provisional reference of ‘the former Yugoslav Republic of Macedonia’, as
set out in resolution 817, used to refer to theApplicant.Article 5(2) preserves
and guarantees the right of each Party to deal with the other “in a manner
consistent with their respective positions”:
“Recognizing the difference between them with respect to the name
of the Party of the Second Part, each Party reserves all of its rights
consistent with the specific obligations undertaken in this Interim
Accord. The Parties shall cooperate with a view to facilitating their
mutual relations notwithstanding their respective positions as to the
name of the Party of the Second Part. In this context, the Parties shall
take practical measures, including dealing with the matter of documents,
to carry out normal trade and commerce between them in a manner
consistent with their respective positions in regard to the name of the
Party of the Second Part. The Parties shall take practical measures so
that the difference about the name of the Party of the Second Part will
not obstruct or interfere with normal trade and commerce between the
Party of the Second Part and third parties.”
- 39 -2.36. The “practical measures” referred to in Article 5(2) were intended
to enable the Parties to develop mutual relations in a manner which did not
compromise their respective positions relating to the difference concerning the
Applicant’s name, which were to be the subject of further negotiation. Such
“practical measures” were agreed upon in the Memorandum on “Practical
Measures” Related to the Interim Accord of New York of September 13,
88
1995, signed in Skopje on 13 October 1995 (“Memorandum 1”), and the
Memorandum Related to the Interim Accord of New York of September 13,
1995, on the Mutual Establishment of Liaison Offices, signed inAthens on 20
October 1995 (“Memorandum 2”). 89These two Memoranda have the status of
bilateral treaties; they set out practical measures to facilitate mutual relations on
matters such as official correspondence between the Parties, the establishment
of liaison offices, visa arrangements, bank transfers and vehicle registration.The
“practical arrangements” specifically envisaged that theApplicant would be able
to continue to use its constitutional name in its dealings with the Respondent,
confirming the practice in the United Nations that followed the adoption of
resolution 817. Two examples suffice to illustrate this fact:
• Official correspondence between the two Parties: Memorandum 1
provides that theApplicant will call itself by its constitutional name in
official correspondence with the Respondent, and that, conversely, the
Respondent will refer to the Applicant by the provisional designation
set out in resolution 817. On receipt of a document from theApplicant
in which the constitutional name is used, the Respondent is to “affix
a seal” bearing the provisional reference; conversely, on receipt of a
document from the Respondent using the provisional reference, the
Applicant is to “affix a seal” bearing its constitutional name. 90
• Liaison offices: Memorandum 2 permits the Applicant to erect a sign
bearingitsconstitutionalnamewithinitsliaisonofficesintheRespondent
88 Memorandum on “Practical Measures” Related to the Interim Accord of New York of
September 13, 1995 (Skopje, 13 October 1995): Annex 3.
89 Memorandum Related to the InterimAccord of New York of September 13, 1995, on the
Mutual Establishment of Liaison Offices (Athens, 20 October 1995): Annex 4.
90 Ibid., note 88 supra.: Annex 3, at p. 3.
- 40 - State. It also provides for another sign to be erected outside those
premises referring to theApplicant by the provisional reference, bearing
91
an explanation to theeffectthatithas notbeen erected by theApplicant.
C. t h ere s p o n dnsutn d e rAtkInrge gAr dIn gt hAep pI Cn ’s Ap p I tIo n
t oAn d m e mBe r sIp o In t e ntIo nA, m u lIlAt eAl An d r e gIo nAl
o r gAnIzAtIo n sAn In sIt u Io n s
2.37. Article 11 of the Interim Accord includes the undertaking that lies at
the heart of this case, which is addressed in detail in Chapter IV. UnderArticle
11(1) of the Interim Accord, the Respondent undertook not to object to the
Applicant’s membership of international, multilateral or regional organizations
or institutions to which the Respondent belonged, provided that theApplicant
was “to be referred to” within those organizations or institutions as ‘the former
Yugoslav Republic of Macedonia’.Thus, the dispute concerning theApplicant’s
name was not to serve as an obstacle to theApplicant’s further integration into
international, multilateral and regional organizations or institutions:
“Upon entry into force of this Interim Accord, 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 [the Respondent] is a member;
however, the Party of the First Part [the Respondent] reserves the right
to object to any membership referred to above if and to the extent the
Party of the Second Part [the Applicant] is to be referred to in such
organization or institution differently than in paragraph 2 of the United
Nations Security Council resolution 817 (1993).”
2.38. Article 11 was intended to address difficulties faced by theApplicant in
gaining membership of various international and regional organizations due to
objections by the Respondent. The Council of Europe was a case in point: the
91
Memorandum Related to the InterimAccord of New York of September 13, 1995, on the
Mutual Establishment of Liaison Offices (Athens, 20 October 1995):Annex 4, at pp. 1-2.
- 41 -Respondent objected to the Applicant’s membership of the Council for over
two years, from the date of theApplicant’s application for accession on 25 June
1993, due primarily to the difference concerning the name. 92Given that the
Council of Europe’s decisions to extend invitations to States to become members
of the Council must be taken on the basis of consensus, the Respondent’s
objections contributed to the blocking of the Applicant’s membership of the
Council. Similar objections were made by the Respondent at the Organization
for Security and Co-operation in Europe (OSCE).
d. t h een t r In t fo rCe o ft h In t ImrA C Co r d
2.39. Pursuant to the terms of the Interim Accord, on 6 October 1995, the
Applicant’s Parliament passed the Law on the National Flag 1995, replacing
the national flag objected to by the Respondent with a new design, depicting
a yellow sun on a red background. Seven days later, on 13 October 1995, the
Interim Accord entered into force, pursuant to Article 22(1). It was registered
by the Respondent with the United Nations (with number 32193) on the same
day and has been binding on the Parties since that date. It has served as an
effective framework for bilateral relations, notwithstanding the continuing
difference between the Parties as to theApplicant’s name. The InterimAccord
has remained in force, pursuant to Article 23(2). It has not been superseded
by a definitive agreement, and the Respondent has never sought to withdraw
from the Interim Accord, by giving twelve months’written notice or to claim
that any part of the InterimAccord had been suspended. TheApplicant is also
unaware of any formal, written objection from the Respondent directed to the
Applicant alleging material breach of Article 7 of the Interim Accord or any
of its other provisions prior to late March/early April 2008.
92 Council of Europe, Committee of Ministers, 506th Meeting of the Ministers’ Deputies
(held in Strasbourg from 10 to 14 and 20 January 1994)l/Act(94)506) (10 March
1994) pp. 3-5: Annex 121.
- 42 - Section IV. The Integration of the Applicant into the International
Community
2.40. The signing of the Interim Accord heralded a new era of increasing
cordial, bilateral relations between the Parties. It also facilitated theApplicant’s
full integration into the international community, as characterized by the entry
of theApplicant into membership of numerous “international, multilateral and
regional organizations and institutions,” as provided for by Article 11 of the
Interim Accord. Those organizations and institutions include:
• Council of Europe (9 November 1995)
• Organization for Security and Co-operation in Europe (12 October 1995)
• Intergovernmental Organisation for International Carriage by Rail
(1 June 1996)
• South Eastern European Initiative (6 December 1996)
• European Civil Aviation Conference (3 July 1997)
• Intra-European Organization of Tax Administrations (1997)
• Organisation for the Prohibition of Chemical Weapons (20 July 1997)
• European and Mediterranean Plant Protection Organization (1998)
• European Charter for Energy (27 March 1998)
• European Organisation for the Safety of Air Navigation (1 November
1998)
• Bank for International Settlements (26 November 1998)
• Joint Aviation Authority (15 December 1999)
• Preparatory Commission for the Comprehensive Nuclear-Test-Ban
Treaty Organization (14 March 2000)
• Permanent Court of Arbitration (17 February 2001)
• International Organisation of Vine and Wine (2004)
• the European Patent Organisation (1 January 2009). 93
93 ThedecisiontoallowtheApplicanttoaccedetotheEuropeanPatentConventionwasmade
bytheEuropeanPatentOrganization’sAdministrativeCouncilon10March2006,although
the Applicant did not become a full member of the organization until 1 January 2009.
- 43 -2.41. Pursuant toArticle 11(1) of the InterimAccord, the Respondent did not
object to the Applicant’s application for membership of those organizations,
wherein the Applicant is referred to as ‘the former Yugoslav Republic of
94
Macedonia’. Whereithad previously objected, itceased thatobjection, paving
the way for the Applicant’s successful membership. Thus, for example, in
relation to the Council of Europe, the Respondent dropped its objection to
the Applicant’s membership in September 1995, enabling the Applicant’s to
become a member of the institution two months later. 95
2.42. During the years following the Interim Accord, the Applicant also
established diplomatic relations with a significant number of additional
countries, including the Republic of Sierra Leone, 96the Federative Republic
of Brazil, the Hashemite Kingdom of Jordan, the United Mexican States, 99
and the Somali Democratic Republic. 100It currently has diplomatic relations
with 160 states across the world.
2.43. Bilateral negotiations on the outstanding matters of dispute between the
ApplicantandtheRespondentcontinuedthroughoutthisperiod,notwithstanding
the lack of a permanent resolution as to the difference concerning theApplicant’s
name. Between 1995 and 2005, over 20 agreements and protocols were signed
betweentheParties,onabroadrangeofmattersfromtransporttodevelopmentto
financial investments, including numerous bilateral agreements on security and
94 In relation to each of these organizations, theApplicant’s application for membership was
made under its constitutional name, on the understanding that it would be provisionally
referred to within the organization or institution under the provisional reference set out
in resolution 817 (1993). This practice did not raise objections from the Respondent nor
has it caused difficulties in the Applicant’s participation in the relevant organizations.
See Annex V of the Application to the Court in this matter of 17 November 2008 for
examples of membership documents.
95 See: Parliamentary Assembly of the Council of Europe, Official Report, 1995 session,
th
29 sitting, (27 September 1995).
96
17 July 1998.
97 14 October 1998.
98 15 September 2000.
99 4 October 2001.
100 17 February 2005.
- 44 -military cooperation. 10Throughout that period, the failure to find a permanent
resolution over the name difference did not serve – nor was it perceived – as
a bar to growing cooperation between the Parties or to good neighbourly
relations. Indeed, the increased cooperation between the two States prompted
the Respondent’s Prime Minister, Costas Simitis, to declare in 2000:
“the period of tension has been left behind and we have entered a new
era of cooperation and development in our bilateral relations.” 102
Section V. The Applicant’s Engagement with the North Atlantic Treaty
Organization and the Respondent’s Objection to the Applicant’s
Membership Thereof
A. nAto An dIt s m e mBe r sIpp r oCe s s
2.44. TheNorthAtlanticTreaty Organization (‘NATO’), also referred to as the
‘NorthAtlanticAlliance’, is an intergovernmental military alliance, established
by the North Atlantic Treat y of 4 April 1949, pursuant to which Member
Countries commit themselves to the principle of collective defence, mutual
assistance and cooperation. The Alliance, which originally counted twelve
101
Examples include the Protocol on Mutual Visa Regime and Fees (Athens, 20 October
1995): Annex 6; the Protocol on Transport and Communications (Athens, 20 October
1995): Annex 5; the Protocol on Border Cooperation (Athens, 23 June 1998): Annex
7; the Protocol of Cooperation on Police Matters (Ohrid, 8 July 1998): Annex 8; the
Agreement on Military Cooperation (Skopje, 14 December 1999):Annex 9; the Protocol
on Co-operation in the Field of Military Education (Skopje, 19 December 2002): Annex
10; the Memorandum on the Mutual, Establishment of Offices for Consular, Economic
and CommercialAffairs in Bitola and Thessaloniki (Skopje, 22 January 2004):Annex 11;
and the Memorandum of Understanding Concerning Support to the Combined Medical
Team for Participation in NATO-Led Operation ISAF in Afghanistan (Athens, 27 July
2005): Annex 12. All bar one of the agreements were concluded using the nomenclature
of the InterimAccord, i.e. “the Party of the First Part” and “the Party of the Second Part.”
Neither party is referred to by name, nor is the provisional reference u▯sed.
102 Statement by the Respondent’s Prime Minister, Costas Simitis, “PM: Our Policy on
Balkan Reconstruction and FYROM”, Macedonian Press Agency: News in English (7
April 2000), available at: http://www.hri.org/news/greek/mpab/2000/00-04-07.mpab.
html. Mr Simitis also declared that the name dispute was “the only pending issue in our
relations with the former Yugoslav Republic of Macedonia [which] has not stopped [the
two countries] from developing bilateral relations in all sectors.”
- 45 -countries, 103has adopted what it calls an ‘open door policy’to new members,
and has more than doubled in size during the past sixty years to include twenty-
eight Member States: Greece joined the Alliance in 1952, alongside Turkey,
followed by West Germany in 1955, Spain in 1982 and a large number of
former Eastern-bloc states (the Czech Republic, Hungary and Poland in 1999;
Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia in 2004;
andAlbania and Croatia, which were invited to become members at the NATO
Summit in Bucharest inApril 2008, in 2009).The expansion of theAlliance has
proceeded pursuant toArticle 10 of the NorthAtlantic Treaty, which provides
as follows:
“The Parties may, by unanimous agreement, invite any other European
State in a position to further the principles of thisTreaty and to contribute
to the security of the North Atlantic area to accede to this Treaty. Any
State so invited may become a Party to the Treaty by depositing its
instrument of accession with the Government of the United States of
America. The Government of the United States ofAmerica will inform
each of the Parties of the deposit of each such instrument of accession.”
[emphasis added]
2.45. Thus, in order for a state to be invited to become a member of the
Alliance it must (i) be invited to join by unanimousagreement, (ii) be in Europe,
(iii) be in a position to further the principles of the North Atlantic Treaty, and
(iv) be in a position to contribute to the security of the North Atlantic Area.
Stipulation (i) is the most important for the purposes of this case: it sets out the
requirement for consensus across all Member Countries in relation to decisions
104
concerning the enlargement of the Alliance; this means that an objection
from a single NATO Member Country is sufficient to block another state’s
membership bid.
103 Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands,
Norway, Portugal, the United Kingdom and the United States ofAmerica.
104 NATO Member Countries retain full sovereignty within the Alliance. All decisions,
including those concerning enlargement, require consensus across all 28 Member
Countries.
- 46 -2.46. The process by which states interested in membership may join NATO
has been refined since the end of the Cold War. The Alliance has created a
number of programmes to foster cooperation with non-Member Countries and
to assist states seeking membership of NATO to meet requirements (3) and (4)
set out above, such as Partnership for Peace (‘PfP’), launched in 1994, and the
Membership Action Plan (‘MAP’), launched in 1999.
2.47. PfP is a programme of practical bilateral cooperation between partner
countries and NATO, aimed at promoting trust and bilateral relations between
NATO and former Eastern-bloc countries, and at diminishing threats to peace
in and between partner countries. Through participation in PfP, non-member
states may train with NATO forces and participate in peacekeeping missions.
The MAP is a complementary process to PfP, created to assist those countries
wishing to join NATO in their preparations for membership by providing
tailored advice, assistance and practical support on the different requirements
for NATO membership. Each country participating in MAP must prepare an
Annual National Programme, detailing its preparations towards membership
in the political, economic, defence, resource, security and legal spheres, which
NATO officials assess for progress. Although participation in and successful
completion of MAP are no guarantee to eventual membership of NATO, of
the ten countries which have participated in the programme since 1999, the
Applicant is the only one not to have been offered membership. 105
2.48. Decisions on whether to invite a candidate country to become a member
of NATO are usually made at NATO summits, organized approximately once
every two years. Following a positive unanimous decision regarding the
candidacy of a given country, the country is invited to begin accession talks to
join theAlliance.This invitation marks the beginning of the accession process,
which typically takes two years to complete. 106Following the invitation, the
candidate country embarks on a round of accession talks with NATO experts to
discuss and formally confirm the country’s willingness and ability to meet the
105 The ten countries which have participated in the MAP are: the Applicant, Albania,
Bulgaria, Croatia, Estonia, Latvia, Lithuania, Romania, Slovakia and Slo▯venia.
106 Although the process can be considerably shorter, as in the cases of Croatia and Albania.
- 47 -political, legal and military obligations and commitments of NATO membership,
and to discuss further reforms expected before and after accession to enhance
the country’s contribution to theAlliance. Upon the completion of those talks,
the foreign minister of the invited country must send a letter of intent, setting out
the country’s interest to join NATO, whereupon NATO prepares an accession
protocol to the North Atlantic Treaty, to be signed and ratified by all NATO
Member Countries. On completion of the ratification process, the country in
question is invited by the NATO Secretary General to become a party to the
NorthAtlanticTreaty. Following the completion of required national procedures
to enable accession to NATO, the country deposits its instrument of accession
with the United States, and formally becomes a party to the North Atlantic
Treaty, and consequently a member of NATO.
B. t h eA p pI Cn ’s re lAtIo n Ip wIt hnAto
2.49. Membership of NATO and the EU – have been vital and long sought-
after security goals for the Applicant, strongly supported by over 90 percent
of its population. The Applicant’s engagement with NATO in order to secure
accessionhasspannedaperiodofmorethan15years,beginningon23December
1993, when theApplicant adopted a resolution setting out its desire to become
107
a NATO member.
2.50. In 1995, following the signing of the InterimAccord, theApplicant was
offered – and accepted – membership of PfP, under the provisional designation
of ‘the former Yugoslav Republic of Macedonia’. Four years later, in 1999,
the Applicant was invited – and accepted – to participate in the MAP, also
under the provisional designation. Since that time, the Applicant’s military
forces have participated in numerous NATO exercises, and the Applicant has
contributed to a number of NATO campaigns: in relation to the Balkans, it
107 “Decision on the Attainment of Membership by the Republic of Macedonia of the North
Atlantic Treaty Organization - NATO” (23 December 1993), Official Gazette of the
Republic of Macedonia, No. 78, Year XLIX (27 December 1993): Annex 21.
- 48 - 108
provided logistical support for the NATO-led Kosovo Force (KFOR) mission
from the NATO Headquarters in Skopje from 1999 until 2007, when it assumed
complete responsibility for the KFOR Co-ordination Centre; 109it has also
contributed to the NATO-led operation inAfghanistan since 2002, and currently
has approximately 170 serving personnel under NATO command.
2.51. TheApplicant has always been referred to within NATO as ‘the former
Yugoslav Republic of Macedonia’ and has made clear its acceptance of that
modus vivendiin order to facilitatemembership.As stated by thethen President,
Branko Crvenkovski:
“Naturally, our accession to NATO under our constitutional name would
be the most satisfactory for us. Nevertheless, if no solution to the dispute
is found before we join NATO, we are ready to become a full member
with the name with which we are currently referred to at the United
Nations, as a temporary solution.” 110
2.52. The Respondent had stated that, in conformity with its obligations
underArticle 11(1) of the InterimAccord, it would not object to theApplicant’s
membershipofNATO,providedthattheApplicantwastobereferredtowithinthe
organization as ‘the formerYugoslav Republic of Macedonia’. See, for example,
thefollowingstatementsbytheRespondent’sForeignMinister,PetrosMolyviatis,
andbyitsForeignMinistrySpokesman,GeorgeKoumoutsakos,asreportedin2005:
“ ... Molyviatis told ... reporters that the Greek government’s position
vis-a-vis the FYROM name issue was crystal clear. He indirectly but
clearly put forward a warning of on [sic] Greece’s right of veto. “We
have the right, on the basis of the 1995 interim agreement, to oppose the
neighbouring country’s accession to international organizations under
108 KFORisaninternationalforce,establishedby UnitedNationsSecurityCouncilresolution
1244 (S/RES/1244) (10 June 1999) to establish a safe and secure environment in Kosovo.
109 This achievement significantly reduced NATO financial and personnel costs, while
ensuring NATO-standard services in support of KFOR operations.
110
Stavros Tzimas, “We are ready to join NATO as FYROM”, Kathimerini (4 June 2007):
Annex 69.
- 49 - any name other than that of ‘Former Yugoslav Republic of Macedonia’”
...Thename‘FormerYugoslav Republicof Macedonia’used in relations
between the neighboring country and the European Union “causes
no problems to Greece so long as it remains that”, Foreign Ministry
111
Spokesman George Koumoutsakos said … .” [emphasis added]
C. t h e2008 nAto s u m It InB uChAr e s t
2.53. The Applicant’s candidacy for membership of NATO under the
provisional reference of ‘the former Yugoslav Republic of Macedonia’ was
considered at the NATO summit in Bucharest on 2 to 3 April 2008, alongside
the candidacies of Albania and Croatia. In the lead up to the Summit, there
was widespread support for Macedonia’s NATO membership and no issue as
112
regards theApplicant having met the criteria for membership, as the examples
in the following statements make clear:
111
Press Office of the Embassy of the Respondent in Washington, DC, Press Release, FM
MolyviatisbriefspremierondevelopmentsinFYROMissue(12October2005):Annex68.
112 Government of the Republic of Slovenia, Ministry of Defence,Defence Minister Says
MacedoniaMeetingNATOStandards”(27July2007):Annex70;“CzechDefenceMinister
promiseshelptoMacedoniaonpathtoNATO”,CzechNewsAgency,(14September2007):
Annex72;“ForeignministerreceivesUKsupportforMacedonia’sEU,NATOintegration”,
BBC Monitoring Europe (18 October 2007):Annex 74; “Macedonian, Canadian ministers
view NATO reforms, peacekeeping missions”, BBC Monitoring Europe (1 November
2007): Annex 75; “Macedonian, Slovak Foreign Ministry officials discuss relations, EU,
NATO”, BBC Monitoring Europe (23 January 2008):Annex 76; “Turkey pledges to lobby
forMacedonia’sNATOaccession”,BBCMonitoringEurope(10February2008):Annex77;
“Macedonia, Luxembourg prime minister discuss NATO, EU accession”,BBC Monitoring
Europe (15 February 2008): Annex 78; Ministry of Foreign Affairs of the Republic of
Latvia, Press Release, Latvian Foreign Minister expresses support for integration of
Croatia into EU and NATO (19 February 2008): Annex 79; “Bulgaria backs Macedonia
for NATO membership”, Sofia News Agency (5 March 2008): Annex 81; Ministry of
Foreign Affairs of the Republic of Lithuania, Press Release,Lithuania firmly supports the
open door policy principle of the NATO Alliance (6 March 2008): Annex 82; Norwegian
Ministry of Foreign Affairs, Meeting of NATO Foreign Ministers – NATO Headquarters,
Brussels,6March2008–TheMinister’stalkingpointsforhisaddressandremarks,official
web-page (uploaded 6 March 2008): Annex 125; Romanian Ministry of Foreign Affairs,
Press Release, Participation of the Minister of Foreign Affairs, Adrian Cioroianu, in the
meeting of NATO Foreign Ministers (7 March 2008): Annex 84; “Netherlands deputies
say name no condition for Macedonia’s NATO entry”,BBC Monitoring Europe (11 March
2008): Annex 85; “Slovakia supports Macedonia’s effort to join NATO, EU”,People’s
Daily Online (12 March 2008): Annex 86; Government of the Republic of Estonia, Press
Release, Prime Minister Ansip confirmed Estonia’s support of Macedonia’s aspirations
- 50 -• Statement of 11 March 2008 of Daniel Fried, United States Assistant
Secretary of State for European and EurasianAffairs, before the United
States Senate Committee on Foreign Relations, in Washington DC:
“NATO enlargement has been a major success, thanks to the work
of many on this Committee. The Administration strongly supports
the aspirations of Albania, Croatia, and Macedonia to join NATO.
They have all made substantial progress, especially over the past
one to two years.Their forces serve with us inAfghanistan and other
global peacekeeping operations. They continue to play important
roles on Kosovo. In short, they have shown a clear commitment to
bearing the responsibilities of NATO membership. … Macedonia
has made significant strides since 2001 in building a multiethnic
democracy. The government has taken strong steps on rule of law
by implementing several critical laws on its courts and police and
taking action against trafficking in persons. Macedonia, like the
other aspirants, is punching above its weight in operations, and its
progress on defense reforms has been impressive. One issue threatens
Macedonia’s NATO candidacy – the dispute between Greece and
Macedonia over Macedonia’s name. Without a resolution of this
towards NATO (26 March 2008): Annex 87; Ministry of Foreign Affairs of the Republic
of Hungary, Hungary supports further enlargement of the Atlantic Alliance at the next
week’s NATO Summit in Bucharest – Briefing by State Secretary and Political Director
Gábor Szentiványi for the members of the Hungarian Parliament’s NATO Club, official
web-page (uploaded 26 March 2008): Annex 127; “CzechRep, USA to agree on radar
treaty in a couple of days…”, CTK National News Wire (31 March 2008): Annex 91;
“Hungary, Germany support NATO membership of three Balkan states”,Budapest Times
(31 March 2008):Annex 92; Lech Kaczynski, “Nato must embrace Ukraine and Georgia”,
the Financial Times(30 March 2008): Annex 93; “President leaves for NATO summit on
Wednesday”,PAPNewsWire(1April2008):Annex94;“PresidentKaczynskiinBucharest
for NATO Summit”,PAP News Wire (2April 2008):Annex 95; NATO, Official Web-page
of the Bucharest Summit, Keynote address by Prime Minister Călin Popescu-Tăriceanu
at the Bucharest Conference “NATO: The Responsibility to Transform” (2 April 2008),
available at: http://www.summitbucharest.ro/documente/fisiere/en/Discurs_Premierul_
Tariceanu_la_GMF_engleza.pdf:Annex 128; “Slovene premier hopes for compromise on
Macedonia’s name”, BBC Monitoring Europe (2 April 2008): Annex 96; “Bush Delivers
Remarks at NATO Summit”, The Washington Post (2 April 2008): Annex 97; “Italian
embassy denies media reports on support of veto on Macedonian NATO entry”,BBC
Monitoring Europe (4 April 2008): Annex 101; Canadian Department of Foreign Affairs
and International Trade, Canada- Republic of Macedonia Relations, official web-page
(uploaded October 2008): Annex 134.
- 51 - issue, Greece has said it would block an invitation for Macedonia
to join NATO ...”. 113[emphasis added]
• Statement of 14 September 2007 by the Czech Defence Minister,Vlasta
Parkanova:
“My visit [to theApplicant] is a symbol of our support to Macedonia
on its path to Euro-Atlantic organizations. I hope that Macedonia will
be invited to join NATO at its summit in Bucharest inApril 2008.” 114
• Statement by Hungary’s State Secretary and Political Director, Gábor
Szentiványi:
“We consider it of particular importance that a new wave of
enlargement be initiated on the occasion of the Bucharest Summit
and that the three candidate states (Albania, Croatia and the former
Yugoslav Republic of Macedonia/FYROM) receive invitations to
join the Alliance.” 115
2.54. Regrettably, following an objection by the Respondent to theApplicant’s
membership,incircumstanceswhereNATOrequiresconsensusofallitsMember
Countries, NATO announced on 3April 2008 that it would be invitingAlbania
and Croatia to begin accession talks to join the Alliance, but that it would not
extend an invitation to the Applicant.
2.55. The declaration made by NATO following the Bucharest Summit
commended the Applicant for its “commitment to NATO values and Alliance
113
United States Mission to NATO, Testimony of Daniel Fried, Assistant Secretary of State
for European and Eurasian Affairs, before the Senate Committee on Foreign Relations
“NATO: Enlargement and Effectiveness” (11 March 2008):Annex 126.
114 “Czech Defence Minister promises help to Macedonia on path to NATO”, Czech News
Agency (14 September 2007): Annex 72.
115 Ministry of ForeignAffairs of the Republic of Hungary, Hungary supports further enlarge-
ment of the Atlantic Alliance at the next week’s NATO Summit in Bucharest – Briefing by
State Secretary and Political Director Gábor Szentiványi for the members of the Hungarian
Parliament’s NATO Club, official web-page (uploaded 26 March 2008): Annex 127.
- 52 -operations”,making clear that there was no dispute that theApplicant had met all
the conditions for NATO membership – a position underscored by the President
of the United States in an official statement made two days after the Summit:
“[l]ike Croatia andAlbania, Macedonia has met all the criteria for NATO
116
membership.”
2.56. However, notwithstanding that fact, following the Respondent’s
objection, it was decided that it would only be possible to extend an invitation
to the Applicant to join the Alliance once “a mutually acceptable solution to
the name issues has been reached”. The statement issued by the Alliance on
3 April 2008 includes a recognition of “the hard work and the commitment”
demonstrated by the Applicant “to NATO values and Alliance operations”
and a commendation for the State’s “efforts to build a multi-ethnic society”.
However, it continued:
“Within the framework of the United Nations, many actors have worked
hard to resolve the name issue, but theAlliance has noted with regret that
thesetalks havenotproduced asuccessfuloutcome.Thereforeweagreed
116 United States Office of the Press Secretary, Radio Address of the United States
President, George W. Bush, President’s Radio Address (5 April 2008): Annex 102. See
further statement by the then United States Secretary of State Condoleezza Rice at a
press briefing immediately following the Bucharest Summit: “[w]e certainly regret that
Macedonia was not invited today, and we and many others worked to try and make it
happen. But NATO is a consensus organization, and the good thing here is that there
was no effort to suggest that Macedonia was not ready in any other way, that it didn’t
somehow meet the criteria. So if you read the language, what it says is that Macedonia
essentially is invited pending the name – resolution of the name issue. I certainly hope
it’s going to be resolved soon, and I think we’ve made no secret of the fact that we
believe that Macedonia should have been invited, but it’s a consensus organization”.
United States Department of State, White House Office of the Press Secretary, Press
Briefing by Secretary of State Condoleezza Rice and National Security Advisor Stephen
Hadley (3 April 2008): Annex 98. See also the letter dated 19 May 2008 from twenty
European and American senior diplomats, academics and international officials to the
NATO Secretary-General, Invitation to the Republic of Macedonia to join NATO: “We
understandandappreciatetheAlliance’scommitmentatBucharest,providedinparagraph
20 of the Summit Declaration, effectively acknowledging that Macedonia has fulfilled
the criteria for entry. We also note, however, that this paragraph appears to make an
Alliance invitation to Macedonia contingent upon its coming to terms with Greece over
the country’s name. If true, this requirement would appear to be at variance with Greece’s
commitmentunderthe1995InterimAccordnottoblockMacedonia’saccession,provided
the latter is referred to as ‘the former Yugoslav Republic of Macedonia’”: Annex 133.
- 53 - that an invitation to the former Yugoslav Republic of Macedonia will
be extended as soon as a mutually acceptable solution to the name issue
has been reached.We encourage the negotiations to be resumed without
delay and expect them to be concluded as soon as possible.” 117
2.57. The Respondent’s objection leading to the rejection of theApplicant’s
membership of NATO on 3April 2008 served to crystallize the dispute between
the Parties as regards the Respondent’s obligations under Article 11(1). That
is the critical date for the dispute.
d. th er e s p o n ’s oBj eCtIo nt ot h Ap pI Cn t’sm e mBe r sIp o nAto
2.58. There can be no dispute as to the fact that the Respondent, which has
been a member of NATO since 1952, objected to the Applicant’s accession to
NATO. That objection ultimately served to prevent the Applicant from being
invited to join NATO. The Respondent’s Prime Minister made this explicit in
a statement to the “men and women of Greece” on the day of the Bucharest
Summit, following the announcement by NATO that no invitation was to be
extended to the Applicant:
“Men and women of Greece,
United with confidence in our abilities, we fought a successful battle...
At the NATO Summit Meeting here in Bucharest, we discussed the
applications of three countries that want to become new members of
the North Atlantic Alliance: Albania, Croatia and the former Yugoslav
Republic of Macedonia. It was unanimously decided that Albania and
Croatia will accede to NATO. Due to Greece’s veto, FYROM is not
joining NATO. ...Today and yesterday, during the meeting, we reiterated
our strong arguments, clearly stating our positions and intentions.” 118
[emphasis added]
117
NATO Press Release (2008)049, Bucharest Summit Declaration Issued by the Heads
of State and Government participating in the meeting of the North Atlantic Council in
Bucharest on 3 April 2008 (3 April 2008): Annex 65.
118
Ministry of Foreign Affairs of the Respondent, Message of Prime Minister Mr. Kostas
Karamanlis, (3 April 2008): Annex 99.
- 54 -2.59. Prime Minister Karamanlis’s statement leaves no room for doubt or
ambiguity. It was confirmed a few days later by the Respondent’s Permanent
Representative to the United Nations, in a letter dated 14 April 2008 to other
Member States’Permanent Representatives:
“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.” 119[emphasis added]
2.60. A great number of statements made before, during and after the
Bucharest Summit confirm that the Respondent intended to and did object to
theApplicant’s membership of NATO on or about 3April 2008.The Respondent
has also asserted that it will also object to the Applicant’s application to join
120
another regional institution, namely the European Union. The Respondent’s
unambiguous position is reflected in numerous letters, newspaper articles,
speeches and interviews leading up to the Bucharest Summit, in particular
following the informal meeting of NATO Foreign Ministers, held in Brussels on
6 March 2008. 121The following examples serve as a non-exhaustive illustration
119
Letter dated 14 April 2008 from the Respondent’s Permanent Representative to the
United Nations, John Mourikis, to the Permanent Representative of Costa Rica to the
United Nations, Jorge Urbina:Annex 132. Similar letters were sent by the Respondent to
all other members of the UN Security Council and to the UN Secretary-Gen▯eral.
120 See, for example: “Karamanlis: Greece to veto Macedonia’s EU, NATO bids if name
issue not resolved”, Southeast European Times (7 September 2007):Annex 71; and Dora
Bakoyannis, “The view from Athens”, International Herald Tribune (31 March 2008):
Annex 90.
121
The Respondent had previously threatened to block the Applicant’s NATO accession,
threats which began on 5 November 2004, the day after the United States announced its
decision to recognize theApplicant under its constitutional name (see the statement by the
Respondent’s Government spokesperson, Evangelos Antonaros, as reported in “Greece
May Block Macedonia’s NATO, EU Bids Over Name Issue”,Dow Jones International
News (5 November 2004): Annex 67; see also “Greece to veto Macedonia’s EU, NATO
accession if no deal on name: reports”,Agence France Presse(5 November 2004):Annex
66). These threats were repeated sporadically in the intervening years (see, for example,
the Statement made by the Respondent’s Prime Minister Kostas Karamanlis [during a
foreign policy debate in the Respondent’s Parliament] (2 November 2006): Annex 123;
and “Karamanlis: Greece to veto Macedonia’s EU, NATO bids if name issue not resolved”,
Southeast European Times (7 September 2007): Annex 71). Indeed, on 14 October 2007,
the Respondent’s Foreign Minister Dora Bakoyannis went so far as to suggest that for the
- 55 -of the Respondent’s stance which is inconsistent with its obligation arising under
the Interim Accord. As they make clear, the Respondent’s objection was not
based on the single ground of objection permitted underArticle 11(1), nor did
the Respondent ever explain its objection in those terms, prior to late March/
early April 2008:
• Statement made in Parliament by the Respondent’s Prime Minister,
Kostas Karamanlis, on 22 February 2008:
“Without a mutually acceptable solution to the name issue, there can
be no invitation to participate in the same alliance.” 122
• Statement by the Respondent’s Foreign Minister, Dora Bakoyannis,
following the informal meeting of NATO Foreign Ministers in Brussels
on 6 March 2008:
“As far as the formerYugoslav Republic of Macedonia is concerned,
I stressed to ourAllies that unfortunately, the policy that was followed
by the government of our neighbouring country in its relations with
Greece… does not allow us to take the same positive stance as in
the case of Croatia and Albania … Greece was therefore unable
to provide its consent to the invitation, as I stressed to my fellow
colleagues in the Council. We are not happy about that. Nobody
likes “vetoes” …As long as there is no … solution, there will be an
123
insurmountable obstacle to FYROM’s Euroatlantic ambitions.”
[emphasis added]
• ThespeechmadebytheRespondent’sPrimeMinister,KostasKaramanlis,
to the governing party’s Parliamentary Group on 27 March 2008:
Respondent to abide by the terms of the InterimAccord and to permit theApplicant to join
NATO under the provisional reference of ‘the former Yugoslav Republic of Macedonia’
would be tantamount to “political cowardice”, Embassy of the Respondent in Washington,
DC, Interview of FM Ms. Bakoyannis in Athens daily Kathimerini, with journalist Ms. D.
Antoniou(Sunday,14October2007)(15October2007):Annex73.However,itwasnotuntil
2008 that it became clear that the Respondent was going to follow through on that threat.
122 “Premier dangles FYROM veto”, Kathimerini (23 February 2008): Annex 80.
123
Dora Bakoyannis, “NATO Enlargement and Alliance Principles”, Atlantic-community.
org (uploaded 7 March 2008):Annex 83.
- 56 - “These past few months, we have responsibly made it clear that
without a mutually acceptable solution the road to NATO cannot be
124
openedforourneighbouringcountry.Itcannotbeinvitedtojoin...”.
• The speech by the Respondent’s Foreign Minister, Dora Bakoyannis, to
the governing party’s Parliamentary Group on 27 March 2008:
“[O]ur government gradually built – step by step, in a methodical
and well-organized manner – the option of exercising its inalienable
right of veto as a NATO member state.We thus succeeded in making
clear the position we presented on 6 March at the Informal Meeting
of NATO Foreign Ministers in Brussels: essentially, the first veto
on sending an invitation to Skopje at the Bucharest Summit… No
solution – no invitation. We said it, we mean it, and everyone knows
it.”25 [emphasis added]
• The article by the Respondent’s Foreign Minister, Dora Bakoyannis, on
31 March 2008 in the International Herald Tribune:
“Astheregion’soldestmemberofbothNATOandtheEuropeanUnion,
we feel a heightened sense of responsibility for our neighbourhood,
an obligation to be constructive, pragmatic and supportive. We will
strongly back the inclusion of Albania and Croatia in NATO. We
will not be able to do the same for FYROM, however, as long as its
leaders refuse to settle the issue of its name, which they promised
the United Nations to do more than 13 years ago... As long as the
problem persists we cannot and will not endorse FYROM joining
NATO or the European Union ...”. 126[emphasis added]
124 Embassy of the Respondent inWashington, DC, Excerpts from Prime Minister Mr. Kostas
Karamanlis’speech on foreign policy before the governing party’s Parliamentary Group
(27 March 2008): Annex 88.
125
Embassy of the Respondent in Washington, DC, Speech of FM Ms. Bakoyannis before
the governing party’s Parliamentary Group (27 March 2008): Annex 89.
126
Dora Bakoyannis, “The view from Athens”, International Herald Tribune (31 March
2008): Annex 90.
- 57 -2.61. The Respondent’s intention to object to theApplicant’s membership of
NATO and the fact of that objection were widely reported by the world media
at the time of the Bucharest Summit. 127Accounts and official documents from
other NATO member countries also unequivocally describe the Respondent’s
objection to theApplicant’s membership of theAlliance and make clear that and
that objection was not based on the single ground permitted underArticle 11(1)
of the Interim Accord. Thus, see for example the following excerpts from the
United States Congressional Research Service’s report for Congress, entitled
‘NATO Enlargement: Albania, Croatia, and Possible Future Candidates’:
“AttheApril2-4,2008NATOSummitinBucharest,Romania,aprincipal
issue was consideration of the candidacies for membership ofAlbania,
Croatia,andMacedonia.ThealliesagreedtoextendinvitationstoAlbania
and Croatia. Although the alliance determined that Macedonia met the
qualifications for NATO membership, Greece blocked the invitation due
to an enduring dispute over Macedonia’s name ...
ForacandidatestatetohavebeeninvitedtojointheallianceatBucharest,
consensus among the 26 member governments was necessary to approve
an invitation. Each candidate was considered separately. One or more
votes against a state would have blocked that state’s progress to the next
stage in the process of becoming a member. It was Greece’s opposition to
Macedonia that resulted in Skopje’s failure to obtain an invitation ...
While [the name] dispute had long been kept on a separate track
from Macedonia’s Euro-Atlantic aspirations, the two issues became
inextricably linked in the run-up to the Bucharest summit. Athens
127 See for example: Ivo H. Daalder (Mr Daalder was appointed US Ambassador to NATO
in May 2009) and James M. Goldgeier, “A Mockery of Enlargement”, The New York
Times (8 April 2008): “Unfortunately, last week’s actions at the NATO summit meeting
undermined the seriousness and credibility of this process. Like Croatia and Albania,
Macedonia also fulfilled its MAP. But Macedonia was not invited to join the Alliance
because one NATO member – Greece – objects to the country’s name. It is absurd enough
that Greece claims to be concerned that Macedonia has designs on the area in Greece
that is also known as Macedonia. But to allow that to become part of the debate over
whether Macedonia should be allowed to join the world’s most successful alliance makes
a mockery of the process”: Annex 103; Julian Borger, “Karzai Seeks Bigger Role for
Larger Afghan Army: Move Cheers NATO Leaders Split over New Members: French
Troop Pledge Falls Short of Partners’Hopes”, The Guardian (3 April 2008): Annex 100.
- 58 - maintained that it could not support Macedonia’s NATO candidacy if
no mutually acceptable agreement on the name issue was reached. Since
NATO operates by consensus, the Greek position made clear that a veto
would be tabled. In contrast, Macedonia’s government insisted that it
has made numerous concessions already, and that linking its accession
prospects to the bilateral name dispute would be unacceptable and
128
would violate an interim accord agreed to by both sides in 1995.”
[emphasis added]
2.62. Arecent television interview with the former Slovenian Prime Minister,
Janez Jansa, by the journalist, Goran Momirovski, also confirms the fact of the
Respondent’s objection and the manner in which it occurred:
“… Goran Momirovski: It is very interesting for us to know how this
happened, who raised this issue, and how the entire matter proceeded,
how Greece exercised the veto?
Janez Jansa: This all took place prior to the Bucharest Summit. In
Bucharest it was clear that Greece would not change its position.Another
attempt was made during the dinner, which was closed to the public, at
which the closest circle of leaders of NATO Member States was gathered
and at which Macedonia received considerable, significant support.All
who spokesupported Macedonia. Of coursetherewere thosewho did not
present their position, but you had our support, the support of the United
States, and the support of the larger European countries. However, in
the end, the Secretary General determined that there was no agreement
on the matter. At NATO, all important decisions are made by way of
consensus.This was the problem.The problem was not whether Greece
had secured consensus for it to exercise its veto – a country does need
a consensus to exercise a veto. Rather, Greece had in fact exercised
a veto at the bodies that had been previously deciding, and finally, in
128 United States Congressional Research Service, NATO Enlargement: Albania, Croatia,
and Possible Future Candidates (14 April 2009), see summary and pages 3, and 11:
Annex 135.
- 59 - Bucharest. However, the Greek diplomacy had fully announced and
conditioned it with the resolution of the name issue.” 129
2.63. As a result of the Respondent’s objection, in circumstances in which
membership of NATO requires the consent of all existing members, the
Applicant’s membership of thatorganization was denied, despitetheApplicant’s
agreement to be referred to within NATO in accordance with the language of
130
resolution 817 and the requirements of Article 11(1) of the Interim Accord.
e. t h ere s p o n d’sttAt e dpo sItIo nCo nCe rIn gt h A p pI Cn ’s m e mBe r sIp
o ft h eu r o pAenunIo n
2.64. The current proceedings before the Court were not prompted by actions
attributable to the Respondent relating to theApplicant’s goal of European Union
membership, a goal it has been pursuing since 1998. 131However, statements
made by the Respondent set out at paragraphs 2.58 to 2.60 above indicate that it
is taking a similar stance in relation to theApplicant’s EU membership as it has
done in relation to theApplicant’s NATO membership, in circumstances where
it is a veto-holding member of the EU, with the power to veto the Applicant’s
membership of the institution. The Applicant reserves its right to modify the
relief sought in these proceedings, including in relation to incidental matters,
129 Goran Momirovski, “Janez Jansa: The decision not to invite Macedonia to membership
was adopted because of the Greek veto on Macedonia”, Kanal 5 TV (25 June 2009):
Annex 106. See also the following two interviews with the former Slovenian Prime
Minister, Janez Jansa: “You Were a Victim of the Veto”, A1 Television, (20 March 2009):
Annex 104; and Hristo Ivanovski, “Interview: Janez Jansa, Former Slovenian Prime
Minister - Macedonia was a Victim in Bucharest”, Dnevnik (21 March 2009):Annex 105.
130
NATO Press Release (2008)049, Bucharest Summit Declaration Issued by the Heads
of State and Government participating in the meeting of the North Atlantic Council in
Bucharest on 3 April 2008 (3 April 2008): Annex 65.
131 See thDeclarationontheDevelopmentofRelationsbetweentheRepublicofMacedonia
and the European Union, adopted by theAssembly of theApplicant on 4 February 1998
(No. 07-460/1), available at: http://www.sobranie.mk/en/default.asp?ItemID=EE1D6
06586695F408E6FC58893EED7F7; and the Declaration on Upgrading the Relations
between the Republic of Macedonia and the European Union, adopted by the Assembly
of the Applicant on 27 November 2000. Macedonia has been formally designated as an
EU candidate country, but has not yet been invited to begin accession talks.
- 60 -in respect of further actions that the Respondent may take in relation to the
Applicant’s EU membership.
Section VI. The Current Proceedings
A. t h eIn sIt u Io no ft h C u r r e ptr oCe eIn g s
2.65. Following the breach by the Respondent of Article 11(1) at the NATO
Bucharest Summit, theApplicant wrote to the Liaison Office of the Respondent
in Skopje on 17 April 2008, protesting “the gross violation by the Hellenic
Republic of the Interim Accord of 13 September 1995”, as evidenced by “the
conduct, activities and statements of thehighest officials of theParty of theFirst
Part, confirmed by the direct objection to the invitation for NATO membership
of the Party of the Second Part”. 132Further, by way of a letter from its Chargé
d’Affaires to the United Nations Secretary-General dated 23 April 2008, the
Applicant formally alerted the United Nations to the “flagrant violation of
133
article 11 of the InterimAccord” by the Respondent. Seven months later, on
17 November 2008, the Applicant duly submitted its application to the Court
initiating the current proceedings against the Respondent for breach ofArticle
11(1) of the Interim Accord. As set out in its application, the dispute before
the Court can be said to have crystallized on 3 April 2008, on which date the
Respondent acted in violation of its obligations under Article 11(1) of the
Interim Accord.
132 Note verbale dated 17 April 2008 from the Applicant’s Ministry of Foreign Affairs to the
Respondent’s Liaison Office in Skopje: Annex 50.
133 Letter dated 23 April 2008 from the Chargé d’Affaires of the Permanent Mission of the
Applicant to the United Nations Secretary-General, annexing a letter to him from the
Applicant’sPresident,BrankoCrvenkovski,UNdoc.S/2008/290(2May2008):Annex42.
- 61 - B. t h er e s p o n d’s C o n d Ct sInCe 3 A p rIl2008
2.66. Importantly, prior to late March/early April 2008, the Respondent had
not made any written complaint or written allegation addressed to theApplicant
formally claiming material breach by theApplicant of the InterimAccord or any
of its provisions. Moreover, the Respondent has never sought to withdraw from
the Interim Accord by written notice or to suspend any of its provisions, as it
would have been entitled to do had theApplicant been systematically violating
the provisions of theAccord. 134It is only since 3April 2008 – and more precisely
since the Applicant’s note verbale of 17 April 2008 accusing the Respondent
of material breach of the Interim Accord – that the Respondent has sought to
formally allege in written letters ornote verbales to the Applicant and to the
United Nations, 135that theApplicant “has been materially breaching the Interim
Accord since its conclusion”, 136fourteen years ago.
2.67. On 15 May 2008, in its letter of response to the Applicant’s above-
mentioned note verbale of 17 April 2008, the Respondent made a number of
unspecified and unsubstantiated allegations concerning purported material
134
Interim Accord, Article 23(2).
135
Insofar as the Applicant has knowledge of said complaints. It is also noteworthy that
in two letters setting out the Respondent’s position concerning the Applicant’s NATO
membership sent by the Respondent to the Secretary-General of the Organization of
American States and to the Permanent Representative of Costa Rica on 28 January 2008
and 14April 2008 respectively, the Respondent makes no allegation against theApplicant
of material breach of any provision of the Interim Accord, nor does it seek to justify its
opposition to the Applicant’s NATO membership by reference to the single permitted
ground of objection under Article 11(1) of the Interim Accord: Annexes 124 and 132.
However, theApplicant is aware of two undated documents that the Respondent has sent
to certain NATO member countries in which the Respondent alleged “violation” by the
Applicant ofArticle 5 of the InterimAccord, relating to discussions concerning the name,
which are not subject to the Court’s jurisdiction, and activity in “stark contrast with the
said Accord (art.7)” (see the Respondent’s Aide Memoire at Annex 129) and accused
the Applicant of a “policy of propaganda and irredentism in violation of Articles 2, 3,
4 and 7 of the Interim Accord” (see the Respondent’s Memorandum, FYROM’s Name
Issue and Propaganda: A Response to Skopje’s Allegations atAnnex 131, drafted to rebut
the Applicant’s own Memorandum, Republic of Macedonia, NATO and EU Candidate
CountryregardingitsNATOandEUcandidacies:Annex130).However,thesedocuments
were never formally submitted to the Applicant by the Respondent.
136 Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of ForeignAffairs:Annex 51.
- 62 -breaches by the Applicant of Articles 2, 3, 4, 5(1), 6(2), 7(1), 7(3) and 8(1)
of the Interim Accord, and failure to respect Articles 11(1) and (2). 137These
allegations were repeated in a letter from the Respondent to the United Nations
138
Secretary-General dated 23 May 2008, sent in response to the Applicant’s
own aforementioned letter alerting the Secretary-General to the Respondent’s
breach of the Interim Accord.
2.68. It is noteworthy that since the initiation by theApplicant of the current
proceedingsinNovember2008,theApplicanthasforthefirsttimereceivedfrom
the Respondent a steady stream of formal, written allegations of breaches of
various articles of the InterimAccord and various other complaints concerning
its provisions. The majority of the allegations relate to alleged breaches of the
InterimAccord post-dating the institution of the current proceedings.They are
further discussed at Chapter V, paragraphs 5.55 to 5.65 below.
2.69. Since 3 April 2008, the Respondent has also written to the Secretary-
General of the United Nations, making sweeping and unspecified allegations
that the Applicant has “consistently violated the provisions of the Interim
Accord” 139and repeating a number of the specific complaints set out in letters
to the Applicant as alleged evidence of conduct “which contravenes the letter
and the spirit of the InterimAccord”. 140TheApplicant has no record of letters
137 Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of ForeignAffairs:Annex 51 .
138 Letter dated 23 May 2008 from the Respondent’s Permanent Representative to the United
Nations, John Mourikis, to the United Nations Secretary-General, UN doc. S/2008/346
(28 May 2008): Annex 43.
139
Letter dated 27 November 2008 from the Respondent’s Permanent Representative to
the United Nations, John Mourikis, to the United Nations Secretary-General, UN doc.
S/2008/746(1December2008);theletteralsowronglyallegesthattheApplicant“hasfor
more than 10 years” disrespected Security Council resolutions by using its constitutional
name before the different organs of the United Nations”: Annex 44.
140 Letter dated 6 February 2009 from the Respondent’s Permanent Representative to the
United Nations, John Mourikis, to the United Nations Secretary-General, UN doc.
S/2009/82 (10 February 2009): Annex 45.
- 63 -from the Respondent to the United Nations prior to that date, alleging any such
material breaches. 141
2.70. TheApplicant has responded to the allegations raised by the Respondent
since May 2008, alleging breaches of the Interim Accord, and has set out
its position in letters to the United Nations Secretary-General 142 and to the
Respondent 143. Where appropriate, it has taken remedial action pursuant to
Article 7(3) of the InterimAccord. 144It has also put forward anew a number of
proposals previously raised with the Respondent intended to foster and develop
cooperation and good-neighbourly relations between the Parties. 145
2.71. The Applicant denies that any of the matters complained of by the
Respondent are capable of amounting to material breaches of the Interim
Accord, justifying the Respondent’s breach of Article 11(1) or of providing
grounds for suspension of the InterimAccord or any part thereof. This is dealt
with in more detail at Chapter V below.
141 By contrast, theApplicant has itself previously formally protested to the United Nations
concerning the Respondent’s “inappropriate conduct... vis-à-vis the Interim Accord”,
including a previous occasion of breach of Article 11(1) of the Interim Accord by the
Respondent: see the letter dated 29 July 1996 from the Permanent Representative of the
former Yugoslav Republic of Macedonia to the United Nations Secretary-General, UN
doc. S/1996/605 (30 July 1996).
142
Letter dated 14 March 2009 from the Applicant’s Permanent Representative to the
United Nations, Slobodan Tasovski, to the United Nations Secretary-General, UN doc.
S/2009/150 (18 March 2009): Annex 46.
143 See, for example: the letters from the Applicant’s Minister for Foreign Affairs, Antonio
Milošoski, to the Respondent’s Minister for Foreign Affairs, Dora Bakoyannis, dated 13
March 2009: (Annex 55) and 9 April 2009: (Annex 58); the letter from the Applicant’s
Minister of the Interior, Gordana Jankulovska, to the Respondent’s Minister of the
Interior, Prokopis Pavlopoulos, dated 18 March 2009: (Annex 56); the letters from the
Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje,
dated 19 March 2009: (Annex 57), 16April 2009: (Annex 61), and the two notes verbales
of 1 June 2009: (Annexes 62 and 63).
144 See, for example the note verbale dated 1 June 2009 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No. 32-4354/1: Annex 62.
145 See, for example, supra: Annexes 55, 56 and 58.
- 64 - Section VII. Conclusions
2.72. As set out in the preceding paragraphs, the essential facts in relation to
the current proceedings are as follows:
• In signing the Interim Accord, the Respondent agreed not to object to
the Applicant’s membership of international, multilateral or regional
organizations or institutions of which it was already a member, unless
theApplicant was to be referred to within those bodies as anything other
than ‘the former Yugoslav Republic of Macedonia’.
• Following the coming into force of the Interim Accord, the Applicant
became a member of a large number of organizations and institutions
of which the Respondent was a member.
• In a series of statements and démarches over the course of late March/
early April 2008 at the NATO Bucharest Summit on 3 April 2008, the
Respondent objected to theApplicant’s membership of NATO, despite
the fact that theApplicant was to be – and had agreed to be – referred to
as ‘theformerYugoslav Republicof Macedonia’within theorganization.
• In the lead up to the Bucharest Summit and when objecting to the
Applicant’s membership of NATO, the Respondent did not seek to
justify its objection by reference to the single permissible ground for
objection, as set out in Article 11(1) of the Interim Accord.
• Throughout the thirteen years until the matters in this case crystallized
in Spring 2008, the Respondent made no formal, written allegation
directed to the Applicant of material breach of the Interim Accord,
nor did it seek to claim that the Interim Accord had been suspended in
whole or in part.
2.73. As described in further detail in Chapters IV and V, the Respondent’s
objection to the Applicant’s NATO membership amounts to a clear violation
of Article 11(1) of the Interim Accord.
- 65 - CHAPTER III
JURISDICTION OFTHE COURT
3.1. The Court’s jurisdiction in relation to this case is based upon Article
36(1) of the Court’s Statute and the InterimAccord.
3.2. Article 36(1) of the Court’s Statute provides that:
“The jurisdiction of the Court comprises all cases which the parties
refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force.”
3.3. In the present case the treaty and convention in force relied upon by
theApplicant is the InterimAccord.
3.4. The Interim Accord was signed by the Applicant and the Respondent
on13September1995.Itenteredintoforceon13October1995,inaccordance
withitsArticle23(1).Itremainsinforce,neitherPartyhavingtakenanystepsto
suspend it in whole or in part, or to withdraw from it by giving twelve months
written notice (as permitted by Article 23(2)). It was in force at all material
times, and remains in force today. Neither Party has entered any reservation
or made any relevant declaration in relation to the exercise of jurisdiction by
the Court under the InterimAccord.
3.5. The circumstances in which the Interim Accord was negotiated and
146
adoptedhavebeensetoutindetailinChapterII. Asexplainedinparagraphs
2.22 to 2.23, the text of the Interim Accord is drawn from a draft treaty
Confirming the Existing Frontier and Establishing Measures for Confidence
Building, Friendship and Neighbourly Cooperation of 14 May 1993 (“the
1993 draft Treaty”), drafted by the Co-chairs of the Steering Committee on
theInternationalConferenceoftheFormerYugoslavia,CyrusVanceandLord
146 Chapter II, paras. 2.21 et seq.
- 66 - 147
Owen, as set out in a report sent by the United Nations Secretary General
148
to the Security Council on 28 May 1993, pursuant to Resolution 817. The
purpose of the InterimAccord and what it sought to address are dealt with in
detail in Chapter IV. Its key articles in relation to the jurisdiction of the Court
areArticles 5, 11 and 21, set out below.
3.6. Article 5 of the Interim Accord sets forth the principles governing the
conduct of future negotiations as to the Applicant’s name. It, provides, in
relevant part, that:
“1. 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).”
3.7. That Article imposes an obligation of conduct, not of result. Since
1995, the Applicant has negotiated in good faith under the auspices of the
United Nations, in negotiations facilitated by CyrusVance (1995 to 1999) and
149
subsequently by Matthew Nimetz (1999 to the present).
147 Thorvald Stoltenberg replaced Cyrus Vance as the Co-chair of the Steering Committee in
May 1993.
148 SeeAnnex V of the letter dated 26 May 1993 from the United Nations Secretary-General,
Boutros Boutros-Ghali, to the President of the Security Council, forwarding the Report
of the Secretary-General submitted pursuant to resolution 817, UN doc. S/25855 (28 May
1993):Annex 33. See further Chapter II, paragraphs 2.21-2.24.The 1993 draftTreaty was
rejected by the Respondent on 27 May 1993, and by theApplicant on 29 May 1993: both
parties objected to the proposal contained within the draft plan of “Nova Makedonija” as
the single permanent name for the Applicant: see the statement of 27 May 1993 by the
Respondent’s Ambassador and Special Envoy, George D. Papoulias, UN doc. S/25855/
Add.1 (3 June 1993):Annex 34; and the letter dated 29 May 1993 from the Respondent’s
President, Kiro Gligorov, to the United Nations Secretary-General, UN doc. S/25855/
Add.2 (3 June 1993): Annex 35.
149
InDecember1999,AmbassadorNimetzoftheUnitedStateswasappointedbytheUnited
Nations Secretary-General to succeed Cyrus Vance as his Personal Envoy to the talks
between theApplicant and Respondent, a position which he continues to hold today.
- 67 -3.8. Article11oftheInterimAccorddealswithmembershipofinternational
organizations.Article11(1)isthesubjectofthedisputebeforetheCourt.Byits
terms, the Respondent agrees, upon entry into force of the InterimAccord,
“nottoobjecttotheapplicationbyorthemembershipofthePartyofthe
Second Part [the Applicant] in international, multilateral and regional
organizations and institutions of which the Party of the First Part [the
Respondent] is a member; however, the Party of the First Part [the
Respondent] reserves the right to object to any membership referred to
above if and to the extent the Party of the Second Part [theApplicant]
istobereferredtoinsuchorganizationorinstitutiondifferentlythanin
paragraph2oftheUnitedNationsSecurityCouncilresolution817(1993).”
3.9. Article 21 of the Interim Accord deals with dispute settlement. It
provides:
“1. The Parties shall settle any disputes exclusively by peaceful means
in accordance with the Charter of the United Nations.
2.Any difference or dispute that arises between the Parties concerning
the interpretation or implementation of this Interim Accord may be
submittedbyeitherofthemtotheInternationalCourtofJustice,except
for the difference referred to inArticle 5, paragraph 1.”
3.10. Article21(2)establishesabroadbasisforthejurisdictionoftheCourt. 150
ItcoversanydifferenceordisputerelatingtoanyprovisionoftheInterimAccord,
withthesoleexceptionofsubmissiontotheCourtofthedifferencereferredtoin
Article 5(1). It is apparent from the existence ofArticle 21(2), from the breadth
of its scope, and from the absence of procedural or substantive limitations,
that the Parties have established a particular and important role for the Court
in assisting them to resolve disputes that might arise. The Court’s jurisdiction
gives it a central role in the scheme established by the InterimAccord.
150 See e.g., N. Zaikos, “The Interim Accord: Prospects and Developments in Accordance
with International Law”, in E. Kofos and V. Vlasidis (Eds.), Athens – Skopje: An Uneasy
Symbosis (1995-2002), Hellenic Foundation for European and Foreign Policy (2005).
- 68 -3.11. It is noteworthy that the text of Article 21(2) of the Interim Accord is
drawn fromArticle 23 of the 1993 draft Treaty. 151There are only two material
differences to the earlier draft. Firstly, the earlier text provided for the right of
recoursetotheCourt“unlessotherwiseagreedbytheParties”,wordswhichare
removed from the agreed text of the InterimAccord. Secondly, the earlier text
did not include an exception in relation to “the difference referred to inArticle
5, paragraph 1” (because the 1993 draft Treaty was premised on the view that
the name difference, dealt with inArticle 5(1), was to have been resolved ). 152
It is evident, therefore, that the only matter that the two States declined to
have resolved by the Court was the one issue that they could not accept in the
1993 draft Treaty, namely the final resolution of the difference concerning
the Applicant’s name. In all other respects, the principle of the Court’s broad
jurisdiction was not a contentious issue and was expressly agreed to by the
Parties. Importantly, the Parties favoured the Court as the primary arbiter of
disputesarisingbetweenthem,ratherthananyotherprocessorinstitutionthat
might “otherwise be agreed”.
3.12. As set out in Chapter I, the dispute that has been referred to the Court
by the Applicant is concerned exclusively with the meaning and effect of
Article 11(1) of the Interim Accord in respect of actions that are attributable
to the Respondent. In particular, the dispute concerns the question of whether
the Respondent’s objection to the Applicant being extended an invitation to
becomeaNATOmemberiscompatiblewiththerequirementsofArticle11(1).
ThisisalegaldisputethatispremisedonthecontinuedapplicabilityofArticle
11(1), and is concerned exclusively with the actions of the Respondent and its
objection to the Applicant’s application for NATO membership. The dispute
151 Draft article 23 provided:
“1.The Parties shall settle any disputes exclusively by peaceful means in accordance
with the Charter of the United Nations.
2.UnlessotherwiseagreedbytheParties,anydifferenceordisputethatarisesbetween
the Parties concerning the interpretation or implementation of this Agreement may
be submitted by either of them to the International Court of Justice.”▯
152 Indeed, the 1993 draft Treaty refers to the Applicant throughout as “Nova Makadonija”,
a proposal rejected by both Parties as a solution to the name difference. See further,
Chapter II, para. 2.23.
- 69 -before the Court does not require the Court to address the actions of any third
states or any international organizations.
3.13. It is also clear that the dispute that has been referred to the Court does
not call for the resolution of “the difference referred to inArticle 5, paragraph
1”oftheInterimAccord,whichdifferenceisnotsubjecttotheCourt’sexercise
ofjurisdiction.ThatdifferenceisdescribedinthepreambletoSecurityCouncil
resolution 817 (1993), which refers to “a difference … over the name of [the
153
Applicant]”.
3.14. The difference referred to in Article 5(1) is not the subject matter of
the dispute before the Court. That difference continues to be the subject of
negotiationsundertheauspicesoftheUnitedNations.Nothingdecidedbythe
Court will affect the continuation of these proceedings which have proceeded
sincetheApplicationinthiscasewasfiledtotheCourton17November2008. 154
NoOrderorJudgmentadoptedbytheCourtcouldhavelegalconsequencesfor
thecontinuedconductofthosenegotiations.Tobeclear,theApplicantdoesnot
invite the Court to express any view on the ongoing negotiations between the
PartiesunderArticle5(1),oronanyeventualoutcomeofthosenegotiations.The
Applicant’scaseisexclusivelyconcernedwiththeRespondent’sobjectiontothe
Applicant’s NATO membership that crystallized on 3April 2008, and with its
continuingobligationnottoobjecttotheApplicant’smembershipofNATOand
of other organizations and institutions, regional, multilateral or international,
and the compatibility of such acts with Article 11(1) of the Interim Accord.
3.15. The Interim Accord does not impose any procedural requirements to
be followed by theApplicant before the exercise of its right of recourse to the
153 United Nations Security Council resolution 817 (1993) (SC/RES/817) (7 April 1993):
Annex 22.
154 Since the Application initiating proceedings in this case was filed, there have been two
rounds of negotiations between representatives of the Parties, facilitated by Ambassador
Nimetz, held in New York in February 2009 and in Geneva in June of the same year.
Further, Ambassador Nimetz visited both Parties in early July 2009 and met with key
officials in the conduct of the negotiation process.
- 70 -Court under its Article 21, and there are no other principles that could affect
that right of recourse.
3.16. Accordingly, there can be no doubt that theApplication is admissible,
that the Court has jurisdiction over the dispute that theApplicant has referred
to it underArticle 36(1) of the Court’s Statute andArticle 21(2) of the Interim
Accord, and that such jurisdiction extends to all the relief sought by the
Applicant, as set forth at Chapter VI.
- 71 - CHAPTER IV
THE MEANINGAND EFFECT OFARTICLE 11(1) OFTHE
INTERIMACCORD
Introduction
4.1. The meaning and effect ofArticle 11(1) of the 1995 InterimAccord lie
at the heart of this case.As discussed in Chapter II,the twenty-three articles
oftheInterimAccordwerenegotiatedandadoptedwithaviewtonormalizing
relations between the Parties, addressing the Respondent’s concerns by, inter
alia, reaffirming the Applicant’s lack of territorial claims against it, and
facilitatingtheApplicant’sintegrationintotheinternationalcommunity.Inlarge
part, the Interim Accord has had that effect. In particular, pursuant to Article
11(1), the Respondent undertook to cease its previously routine objections
to the Applicant’s membership of “international, multilateral and regional
organizations and institutions” of which the Respondent was a member.Thus,
theentryintoforceoftheInterimAccordandtheadherencebytheRespondent
to its obligation arising under Article 11(1) enabled the Applicant to become
a member of numerous international, multilateral and regional organizations
and institutions, including organizations and institutions in relation to which
its membership had hitherto been blocked by the Respondent.
4.2. That situation came to an abrupt halt in the Spring of 2008, when the
RespondentobjectedtotheApplicant’smembershipofNATO.TheRespondent’s
objectionwasinconsistentwithArticle11(1)oftheInterimAccordand,aswill
be discussed in Chapter V, amounts to a clear breach of its terms.
4.3. The purpose of this chapter is to address the meaning and effect of
Article 11(1). In general, the interpretation ofArticle 11(1) is governed by the
rules reflected in the 1969 Vienna Convention on the Law of Treaties (“the
155 Section III.
- 72 -ViennaConvention”),atreatytowhichboththeApplicantandtheRespondent
are a party. As is well established, a treaty provision is to be interpreted in
“good faith” and in accordance withthe“ordinarymeaning”tobe givento the
termsofthetreaty“intheircontext”,andinthelightofthetreaty’s“objectand
purpose”.Subsequentagreementandsubsequentpracticeisalsotobetakeninto
156
account. SectionIexaminestheobjectandpurposeoftheInterimAccordas
awhole.SectionIIaddressesArticle11inthecontextofitsnegotiatinghistory.
SectionIIIthenfocusesonthepreciselanguageandmeaningofArticle11(1).
Section IV concludes with a brief summary.
Section I. The Object and Purpose of the 1995 InterimAccord
4.4. As discussed in Chapters II and III, 157the Interim Accord was largely
drawn from the earlier draft Treaty Confirming the Existing Frontier and
Establishing Measures for Confidence Building, Friendship and Neighbourly
Cooperation (“the 1993 draft Treaty”), proposed by Cyrus Vance and Lord
Owen in May 1993 in an effort to normalize relations between the two States.
The1993draftTreatywasforwardedbytheUnitedNationsSecretary-General
156 Article 31 of thVienna Convention provides:
“1.Atreaty shall be interpreted in good faith in accordance with the ordinary meaning to
begiventothetermsofthetreatyintheircontextandinthelightofitsobjectandpurpose.
2.The context for the purpose of the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c)anyrelevantrulesofinternationallawapplicableintherelationsbetweentheparties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.”
157 See Chapter II, paras. 2.22 to 2.23 and Chapter III, para. 3.5.
- 73 - 158
to the Security Council pursuant to paragraph 3 of resolution 817 (1993),
and then served as the basis for the negotiation of the 1995 Interim Accord,
as provided for by resolution 845 and as can be seen in the common structure
and elements of the two documents.
4.5. The 1993 draft Treaty comprised a preamble and twenty-five articles
(the Interim Accord consists of twenty-three articles). It was divided into six
sections:
A. Friendly Relations and Confidence-Building Measures
B. Human and Cultural Rights
C. European Institutions
D. Treaty Relations
E. Economic, Commercial, Environmental and Legal Relations
F. Final Clauses.
4.6. The sections of the InterimAccord mirror those draft sections exactly,
with one exception: Section C relating to the Applicant’s organizational
and institutional membership, entitled “European Institutions” in the 1993
draft Treaty, was expanded in the Interim Accord to cover all “International,
Multilateral and Regional Institutions”.
4.7. The Interim Accord comprises a preamble and twenty-three articles
that are divided – like the earlier draft treaty – into six sections. Section A,
entitled “Friendly Relations and Confidence-Building Measures”, consists of
eight articles concerning:
• the establishment of diplomatic relations and liaison offices in Skopje
andAthens (Article 1);
• the inviolability of the existing frontier (Article 2);
• respect for sovereignty, territorial integrity and political independence
(Article 3);
158 SeeAnnexVoftheletterdated26May1993fromtheUnitedNationsSecretary-General,
Boutros Boutros-Ghali, to the President on the Security Council, entitled Draft Proposed
byCyrusVanceandLordOwen,14May1993,UNdoc.S/25855(28May1993):Annex33.
- 74 - • obligations to refrain from the threat or use of force and not to assert
or support claims to any part of each other’s territory or claims for a
change of the existing frontier (Article 4);
• agreement to continue negotiations under the auspices of the UN
Secretary-General on the Applicant’s name, and to cooperate with a
view to facilitating mutual relations, including by taking “practical
measures” to carry out normal relations (Article 5);
• commitmentsonthepartoftheApplicantinrelationtoterritorialclaims
and the interpretation or application of its Constitution (Article 6);▯
• commitments to prohibit hostile activities or propaganda, to not use
a particular symbol on the Applicant’s flag, and to address concerns
relating to such matters through certain procedures (Article 7); and
• commitmentsonmovementofpeopleandgoodsandthepossibleuseof
thegoodofficesoftheEuropeanUnionandtheUnitedStates(Article8).
4.8. Section B of the Interim Accord addresses “Human and Cultural
Rights”. It comprises two articles: Article 9 provides that the Parties shall
be guided by the spirit and principles of democracy, fundamental freedoms,
respect for human rights and dignity and the rule of law, by reference to eight
instruments, including the United Nations Charter, which it affirms, together
withtheprincipleofterritorialintegrity.Article10encouragescontactbetween
the Parties’citizens.
4.9. Section C of the Interim Accord, which relates to “International,
MultilateralandRegionalInstitutions”,consistsofasingleprovision–Article
11 – that lies at the heart of this dispute.
4.10. Section D of the Interim Accord addresses “Treaty Relations”, and
comprises three articles that are intended to normalize the treaty relations
between the Parties. Article 12, which aims at bilateral treaties between the
Parties, identifies three earlier treaties concluded between the SFRY and the
Respondent which should serve as a basis for new bilateral arrangements.
NotingthattheApplicantisaland-lockedstate,Article13providesforaguiding
- 75 -role for the United Nations Convention on the Law of the Sea in the practice
and treaty relations of the two Parties.Article 14 provides for the negotiation
ofcooperationagreementsoneconomic,transportandcommunicationmatters,
and the observance of international rules.
4.11. Section E of the Interim Accord addresses “Economic, Commercial,
Environmental and Legal Relations”, and comprises six articles that
concern:
• strengthening economic relations (Article 15);
• thedevelopmentandimprovementofscientificandtechnicalcooperation
(Article 16);
• actions on the environment (Article 17);
• cooperation on the consequences of disasters (Article 18);
• cooperation on business and tourist matters (Article 19); and
• cooperation on organized crime, terrorism and a range of other crimes
and offences (Article 20).
4.12. SectionFoftheInterimAccordcontains“FinalClauses”,whichaddress
the settlement of disputes (Article 21), theAccord’s effect on third states and
international organizations (Article 22), and the Accord’s entry into force
(Article 23).
4.13. The object and purpose of the InterimAccord is readily apparent from
its provisions. The InterimAccord was intended to provide for the immediate
normalizationofrelationsbetweentheApplicantandRespondentandfortheir
future cooperation, notwithstanding the continuing difference concerning the
Applicant’s name. In particular, having regard to the mutual interest of the
Parties“inthemaintenanceofinternationalpeaceandsecurity”,reflectedinits
Preamble, it provided for the recognition of theApplicant by the Respondent,
the establishment of diplomatic relations, the adoption of practical measures
in those relations, a commitment to the free movement of persons and goods
(implying the lifting of the economic embargo) and the confirmation of “the
existing frontier” between the Parties as “an enduring international border”.
- 76 -It reaffirmed theApplicant’s lack of territorial claims against the Respondent
and set out, inter alia, procedures for adressing concerns relating to historical
and cultural symbols. Importantly, the Interim Accord also provided for the
Applicant to join the family of nations and to become an active member of the
international community. At its heart is the binding and clear commitment in
Article 11 that would enable theApplicant to join international organizations
frommanyofwhichithadbeenexcludedowingtoobjectionsbytheRespondent
relating to the difference over its name.
Section II. Article 11 in the Context of its Negotiating History
4.14. Although the meaning and effect of Article 11(1) is informed by the
object and purpose of the Interim Accord as a whole, the dispute before this
Court is concerned only with that paragraph.Article 11 provides:
“1. Upon entry into force of this InterimAccord, 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,thePartyoftheFirstPartreservestherighttoobject
to any membership referred to above if and to the extent the Party of
the Second Part is to be referred to in such organization or institution
differently than in paragraph 2 of the United Nations Security Council
resolution 817 (1993).
2. The Parties agree that the ongoing economic development of the
Party of the Second Part should be supported through international
cooperation,asfaraspossiblebyacloserelationshipofthePartyofthe
SecondPartwiththeEuropeanEconomicAreaandtheEuropeanUnion.”
4.15. The meaning and effect of the words used in Article 11(1) may be
illuminatedinpartbycontrastingthemwithArticle11ofthe1993draftTreaty.
That article provided as follows:
- 77 - “1. The Republic of Greece shall endeavour to support, wherever
possible, the admission of the Republic of Nova Makedonija to those
European institutions of which Greece is a member.
2. The Parties agree that the ongoing economic transformation of the
RepublicofNovaMakedonijashouldbesupportedthroughinternational
cooperation,asfaraspossiblebyacloserrelationshipoftheRepublicof
NovaMakedonijawiththeEuropeanEconomicAreaandtheEuropean
Community.” 159
4.16. As compared with Article 11(1) of the Interim Accord, the 1993 draft
Treatyprovisionwasmorelimitedinscope.Thelatterreferredonlyto“European
institutionsofwhichGreeceisamember”,whereastheInterimAccordappliesto
all“international,multilateralandregionalorganizationsandinstitutionsofwhich
[the Respondent] is a member”.As NATO is not a European institution, if the
1993draftTreatylanguagehadbeenretainedintheInterimAccord,theobligation
it imposed would not have applied to the Applicant’s admission to NATO.
4.17. Further, the 1993 draft Treaty andArticle 11(1) of the InterimAccord
differ in another material respect. Whereas the 1993 draft Treaty provided for
only a soft, positive obligation for the Respondent to “endeavour to support,
wherever possible, [the Applicant’s] admission to European institutions”,
Article 11(1) of the Interim Accord stipulates a firm and unconditional
negative obligation for the Respondent “not to object” to any membership
of the Applicant in international, multilateral and regional organizations and
institutions of which the Respondent is a member. The replacement of the
words “endeavour to support” with the obligation “not to object” emphasizes
the intention of the drafters to impose a clear, unambiguous and unlimited
obligation on the Respondent in relation to the Applicant’s membership of
international, multilateral and regional organizations and institutions. The
159 Draft Proposed by Cyrus Vance and Lord Owen, 14 May 1993, UN doc. S/25855 (28
May 1993), note 158 supra: Annex 33. The name ‘Nova Makedonija’ that appeared in
this provision was a name that was ultimately rejected by both sides: Annexes 34 and
Annex 35. See Chapter II, para. 2.23.
- 78 -removalofthe1993draftTreaty’swordsofqualification–“whereverpossible”
– confirms the broad and far reaching scope of the text as adopted.
4.18. Finally, under the InterimAccord the Respondent agrees not to object
totheApplicant’s“application”or“membership”ofinternational,multilateral
and regional organizations and institutions. This formulation differs from
that used in the 1993 draft Treaty, where the commitment related only to the
Applicant’s“admission”tocertainorganisations.Byextendingthescopeofthe
obligation to include any “application” as well as “membership”, the Interim
Accord indicates that the obligation “not to object” cuts in at any stage of a
process that may lead to an application or membership, so that the obligation
is violated if the objection occurs at any point once theApplicant initiates the
process for joining a particular organization or institution.
Section III. The Obligation Set forth inArticle 11
4.19. While the majority of the InterimAccord’s provisions are addressed to
bothParties(thewords“thePartiesshall…”appearinmostoftheprovisions),
Article 11(1) adopts a different formulation. It is one of only four provisions
directed to just one of the Parties (Article 6 is directed only to the Applicant,
and part ofArticle 1(1) andArticle 7(2) are directed only to the Respondent).
As such,Article 11(1) establishes an obligation solely upon the Respondent.
4.20. AgainstthebackgroundoftheobjectandpurposeofInterimAccordas
awhole,includingitsnegotiatinghistory,Article11(1)admitsofnoambiguity:
it establishes an immediate and binding international legal obligation on
the Respondent to take no action that would constitute an objection to the
Applicant’smembershipofinternationalorganizationsorinstitutionsofwhich
the Respondent is a member, at any stage of the membership or accession
process. Article 11(1) imposes a fetter on whatever discretionary rights the
Respondent might otherwise have had under international law, a fetter that
is drafted in a clear and unlimited manner. A single basis for an objection by
- 79 -the Respondent is clearly articulated: the Respondent can object only if the
Applicant is to be referred to in an organization or institution differently than
under the reference set out in paragraph 2 of resolution 817 (1993). All told,
Article 11(1) raises no particular difficulty of interpretation, having regard to
the established principles of interpretation reflected in Article 31 of the 1969
Vienna Convention on the Law of Treaties and the practice of the Parties: it
has a clear meaning that leaves no room for doubt.
4.21. Article 11(1) comprises two clauses: the first establishes the general
obligationontheRespondentnottoobject,andthesecondspecifiesthesolitary,
exceptionalconditiononwhichtheRespondentmayobjectnotwithstandingthe
general obligation. The first clause expresses the clear intention of the Parties
to bring to an end objections by the Respondent to theApplicant’s admission
to membership in regional, multilateral and international organizations and
institutions;thesecondclausesetsforththesolitarygroundonwhichtheRespondent
mayobjecttotheApplicant’smembershipinsuchorganizationsorinstitutions.
A. t h efIr sCtlAu s eo A rtI Cl11(1): t h re s p o n ’s o BlIgAtIo n
“n o tt oo Bj eC”
4.22. The first clause ofArticle 11(1) provides:
“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”.
4.23. As discussed in Chapter II, 160Article 11 was intended to facilitate the
Applicant’s membership of international organizations, which membership
had been or might have been objected to by the Respondent.
4.24. A number of points may be made, underscoring the broad scope of
the provision: while the obligation set forth in Article 11(1) applies only
160
See Chapter II, paras. 2.37 and 2.38.
- 80 -to the Respondent, it applies to all international, multilateral and regional
organizations and institutions of which the Respondent is a member; further,
as above, the provision is not limited – unlike the earlier provision of the 1993
draft Treaty – to European institutions. The provision plainly encompasses
NATO, of which the Respondent is a member.
4.25. The obligation “not to object” is also broad. It is more extensive than
otherpossibleformulations,suchasanobligation“nottoveto”or“nottoblock”
(implying an obligation that only arises where the Respondent’s action would
preventtheApplicantfromjoininganorganization).Inthiswaytheobligation
is engaged and violated when the Respondent “objects”, irrespective of the
consequences of that objection. The obligation encompasses any implicit or
explicit act or expression of disapproval or opposition in word or deed to the
Applicant’s application to or membership of an organization or institution. 161
An act of objection may be expressed in different forms, including in writing
and orally, by silence or in some other form.
4.26. The formulation encompasses positive acts, such as a vote, as well
as a failure to act, such as the failure to attend a meeting where participation
is necessary in order to express a required view. In this way, the obligation
coversatleasttwotypesofsituation:(1)wheretheRespondentisinaposition
by its act of objection to prevent the Applicant from joining an international
organisation(theNATOcase),and(2)wheretheRespondent’sactofobjection
would not have the effect of preventing membership (where unanimity is not
required for membership decisions). In other words, the drafters’ choice of
161 To object: “1. to say that you disagree with, disapprove of or oppose sth; 2. to give sth
as a reason for opposing sth; synonym: protest” (Oxford University Press Dictionary);
“1. to feel or express dislike or disapproval for , 2. to state something as a ground for
disapproval or objection” (Chambers Dictionary); “to feel or express opposition to or
dislike of something or someone” (Cambridge Advanced Learner’s Dictionary); “1. to
oppose something firmly and usually with words or arguments; 2. to feel distaste for
something” (Webster’s Dictionary). Definitions in international law follow a similar
approach: see for example Dictionnaire de Droit International Public under the
direction of Professor Jean Salmon: “Opposition manifestée par un sujet de droit en vue
d’empêcher l’entrée en vigueur ou l’opposabilité à son égard”. The Dictionnaire also
defines the “procédure de non-objection” as “[p]rocédure d’acceptation implicite de la
demande d’adhésion à certaines conventions“.
- 81 -the words “not to object” indicates that it is the act of objection itself that is
prohibited, irrespective of its consequences. It is also clear that the obligation
is unconditional, in the sense that there are no grounds – subject to the solitary
issue referred to inArticle 11(1) – that may be invoked by the Respondent to
justify any objection on its part.
4.27. The formulation concerns any objection to the “application by” or
“the membership of” theApplicant in such organizations and institutions.The
breadth of this language captures the whole range of processes by which the
Applicant might proceed to membership, without fixating on the objection
occurring at any specific point in the process.
4.28. In sum, the language of Article 11(1) envisages an immediate, broad
and unconditional scope of application to the Respondent’s conduct. This
is confirmed by subsequent practice in applying the provision: as described
in Chapter II, between 13 October 1995 and 3 April 2008 the Applicant
joined a large number of international organizations without objection by the
Respondent. 162
B. t h s eCo n C lAu s eo A rtI Cl11(1): t h so l B AsIspe r It t e df o rt h e
re s p o n dt to Bj eCt
4.29. The second clause of Article 11(1) of the Interim Accord sets out
the solitary exception to the immediate, broad and unconditional obligation
accepted by the Respondent in the first clause. It provides:
“however[theRespondent]reservestherighttoobjecttoanymembership
referredtoaboveifandtotheextentthat[theApplicant]istobereferred
to in such organization or institution differently than in paragraph 2 of
the United Nations Security Council resolution 817 (1993).”
4.30. Theordinarymeaningofthisclauseadmitsofnodifficulties:inspecifying
thesolecircumstanceinwhichtheRespondent“reservestherighttoobject”to
162
See Chapter II, paras.2.40 and 2.41.
- 82 -certain memberships, the Parties have strictly limited the conditions in which
the grant of the Respondent’s right to object may be exercized. Whereas the
general obligation “not to object” is immediate, broad and unconditional, the
right to object is limited and highly conditional. Where the single condition
set forth in this clause is not met, the Respondent has no right to obje▯ct.
4.31. TheRespondent’srighttoobjectmaybeexercisedif–andonlyif–the
Applicant “is to be referred to in such organization or institution differently
than in paragraph 2 of the United Nations Security Council resolution 817
(1993)”. As described in Chapter II, paragraph 2 of that resolution provides
that theApplicant shall be
“provisionally referred to for all purposes within the United Nations as
“the former Yugoslav Republic of Macedonia” pending settlement of
163
the difference that has arisen over the name of the State”.
4.32. In the sixteen years that have passed since the Applicant became a
memberoftheUnitedNationson8April1993,practiceinrelationtoresolution
817 has been consistent. The Applicant has joined a significant number of
organizations both within and outside the United Nations system, having
appliedusingitsconstitutionalnameandthereafterbeingprovisionallyreferred
to in the manner set out in resolution 817. At the same time, as described in
164
Chapters II and V, and in accordance with resolution 817, theApplicant has
continued to refer to itself by its constitutional name, including in its relations
with international organizations and institutions. This approach is consistent
withtheapproachtakenunderthebilateralinstrumentsmadeinconnectionwith
theconclusionoftheInterimAccord,includingtheMemorandumon“Practical
Measures”RelatedtotheInterimAccordofNewYorkofSeptember13,1995,
165
signed in Skopje on 13 October 1995. That Memorandum recognized that
the Applicant could continue to use its constitutional name in its official
163 Chapter II, para. 2.17.
164 Chapter II, para. 2.20 and Chapter V, para. 5.64.
165
Memorandum on “Practical Measures” Related to the Interim Accord of New York of
September 13, 1995 (Skopje, 13 October 1995):Annex 3. See Chapter II, para. 2.36.
- 83 -relations with the Respondent, as indeed the Applicant has continued to do.
The Memorandum and subsequent bilateral agreements signed between the
Parties,aswellasthepracticerelatedtotheInterimAccordarerelevantforthe
interpretation of the Interim Accord, pursuant to Article 31(2) and (3) of the
1969 Vienna Convention. In short, there is no question that, in the context of
NATO, theApplicant’s process towards membership was fully in accordance
with the requirements of resolution 817.
C. A rtI Cl 11(2)
4.33. Article 11(2) indicates the agreement of the Parties that theApplicant
should develop a “close relationship … with the European Economic Area
and the European Union.” This provision is of particular significance to the
interpretation and application of Article 11(1) in relation to the Applicant’s
desire to join the EU. The violation ofArticle 11(1) that would be occasioned
by any objection by the Respondent’s to the Applicant’s membership of the
EU, in circumstances in which the conditions set by resolution 817 were met,
would be all the more egregious given the agreement between the Parties on
the language ofArticle 11(2).
Section IV. Conclusion
4.34. The ordinary meaning and effect ofArticle 11(1) poses little difficulty.
The only ground on which the Respondent may object to the Applicant’s
membershipofNATOisiftheApplicantistobereferredtointhatorganisation
differentlythaninthemannerenvisagedbyparagraph2oftheSecurityCouncil
resolution 817. In circumstances in which the Applicant has always been
referredtointhatmannerinNATO–andhasexpresslyagreedtobereferredto
as such in membership –Article 11(1) precludes the Respondent from voicing
or acting on any objection to the Applicant’s membership at any stage of the
accession process, including by objecting to any offer to the Applicant of an
invitation to begin accession talks to join NATO.
- 84 - CHAPTER V
THE RESPONDENT HAS VIOLATEDARTICLE 11(1) OFTHE
INTERIMACCORD BY OBJECTING TO THEAPPLICANT’S
MEMBERSHIPOF NATO
Introduction
5.1. As discussed in Chapter IV, this case turns upon the interpretation and
applicationofonearticleofatreaty–Article11(1)oftheInterimAccord–that
isbindingasbetweentheApplicantandtheRespondentandisgovernedbythe
rules reflected in the 1969Vienna Convention on the Law ofTreaties. Further,
as described in Chapter III, Article 21(2) of the Interim Accord provides that
any “difference or dispute that arises between the Parties” shall be submitted
totheCourt “exceptforthedifferencereferredtoinArticle5,paragraph1”(in
otherwords,resolutionofthedifferenceregardingthenameoftheApplicant).
TheApplicant reemphasizes that the present dispute is limited in scope and is
not about the resolution of the difference over the name.
5.2. Rather,thebasisoftheApplicant’scaseagainsttheRespondentisthat,
before and during the NATO Bucharest Summit meeting held from the 2 to nd
th
the4 ofApril2008,theRespondentviolateditsobligationunderArticle11(1)
of the Interim Accord “not to object to the application by or the membership
of [the Applicant] in international, multilateral and regional organizations
and institutions of which [the Respondent] is a member”, in circumstances in
which the Applicant is to be referred to within the organization or institution
in question as ‘the former Yugoslav Republic of Macedonia’.
5.3. Prior to its violation of Article 11(1), the Respondent never formally
communicated to the Applicant through a note verbale or other written
communicationthattheApplicanthadviolatedanypartoftheInterimAccord,
to request cessation of any such violation, or to initiate available dispute
- 85 -resolution procedures to address such a violation. As such, there is no basis
for the Respondent to argue that its violation of Article 11(1) of early April
2008 was either justifiable because the Interim Accord had been suspended
prior to April 2008 due a material breach by the Applicant, or justifiable as a
proportionatecountermeasuredesignedtoinducecompliancebytheApplicant.
Only after earlyApril 2008 – when theApplicant formally complained to the
Respondentthatthelatter’sconductviolatedArticle11(1)–didtheRespondent
allegeinwriting,throughvagueandunspecifiedallegations,thattheApplicant
had breached the Interim Accord. Moreover, only after this case was filed
beforethisCourtinNovember2008,didtheRespondentbegintosendasteady
streamofwrittencommunicationsallegingvariouspurportedviolationsbythe
Applicant, relating to matters which arose in most part after April 2008. In
short, the Respondent’s post hoc complaints about alleged violations by the
Applicant of the Interim Accord are designed to lay the groundwork for the
Respondent’s defense of this case and are not genuine reasons for its conduct
in late March/earlyApril 2008.
5.4. SectionIofthischapterappliesthefactsoftheRespondent’sactions,as
recountedinChapterII,totheobligationofArticle11(1),assetoutinChapter
IV.Those actions of 3April 2008 give rise to a clear violation ofArticle 11(1),
entitling the Applicant to appropriate relief. Section II demonstrates that the
Respondent’s violation was not a lawful reaction to alleged violations of other
parts of the Interim Accord, principally because of the Respondent’s failure
to pursue the dispute resolution procedures of the Interim Accord that are
required in the event that a breach is thought to have occurred. Section III
further explains why there are no grounds for the Respondent to explain its
failuretoabidebyArticle11(1)onthebasisofsuspensionofthatarticleorthe
Interim Accord as a whole. Such an explanation is not sustainable since the
Respondent did not take the necessary steps under treaty law for suspension.
Section IV addresses why the Respondent’s violation cannot properly be
viewed as a countermeasure to an antecedent unlawful act under the law of
state responsibility. Finally, while this Court need not reach the merits of any
possibleviolationsoftheInterimAccordbytheApplicant,SectionVexplains
- 86 -why the mostly vague or unsubstantiated allegations articulated to date by the
Respondent, to the extent they can be understood, are without merit.
Section I. The Respondent’s Conduct in Late March/EarlyApril 2008
ViolatedArticle 11(1) of the InterimAccord
5.5. As described in Chapter II, this dispute concerns the Respondent’s
actions leading up to and culminating in its action in late March/early April
2008 to prevent the Applicant from proceeding with the process of obtaining
membership of NATO. Those facts, when applied to the meaning and effect
ofArticle 11(1) as discussed in Chapter IV, lead to certain key conclusions.
5.6. First,theApplicantisonlyconcernedinthiscasewiththeinternational
responsibilityoftheRespondent,notofanyotherstate,entityorperson.Article
2oftheInternationalLawCommission’sArticlesonResponsibilityofStatesfor
166
InternationallyWrongfulActsof2001(“theILCArticles”) (thekeyprinciples
of which are broadly recognized to reflect general international law ) makes167
clear that for there to be an internationally wrongful act of a state, the action
mustbeattributabletothatstateunderinternationallaw.Inthepresentcase,the
actioninquestionrelatesexclusivelytotheRespondent’sconductinviolatinga
bilateral treaty,168namely its acts of objection to the extending of an invitation
by NATO to the Applicant to begin accession talks to join that organization.
These acts are attributable solely to the Respondent, within the meaning of
Article 4 and the other provisions of Chapter II of the ILC Articles. This is
not a case in which several states may be said to be responsible for the same
internationally wrongful act, and thereforeArticle 47 of the ILCArticles is of
166 UN GAOR 56 Sess., Supp. No.10 at 43-58, UN doc. A/56/10 and corr.1, arts. 2(b),
49 (comment 6); International Law Commission, Yearbook of the International Law
Commission, vol. II (Part Two) (2001).
167 See, for example: Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgement,
I.C.J. Reports 1997, p. 7, at pp. 39-46.
168 See Interpretation of Peace Treaties (Second Phase), Advisory Opinion, I.C.J. Reports
1950, p. 221, at p. 228 (“refusal to fulfil a treaty obligation involves international
responsibility”).
- 87 -no relevance.This case is solely about the acts of the Respondent, not the acts
of any other state or of any international organization.
5.7. Second, as discussed in Chapter IV, 169the first clause of Article 11(1)
establishesaclearobligationontheRespondentnottoobjecttotheApplicant’s
membershipofNATO.TheRespondentisbound,inaccordancewithArticle26
of theVienna Convention on the Law ofTreaties, to which both theApplicant
170 171
and the Respondent are party, to observe this obligation in good faith.
5.8. Third, as described in Chapter II, 172 the Applicant’s candidacy for
membershipofNATOundertheprovisionalreferenceof‘theformerYugoslav
Republic of Macedonia’ was considered at the NATO Summit in Bucharest
on 2 and 3 April 2008, alongside the candidacies of Albania and Croatia.
Regrettably, following strong objections by the Respondent in late March/
earlyApril,NATOannouncedon3April2008thatitwouldbeinvitingAlbania
and Croatia to begin accession talks to join theAlliance, but that it would not
extendaninvitationtotheApplicant. ThereisnoquestionthattheRespondent
objectedtotheApplicant’saccessiontoNATOandthatitsobjectionultimately
served to prevent theApplicant from being invited to join NATO. Under such
circumstances,theRespondent’sobjectiongivesrisetoaclearviolationofthe
174
obligationsetforthinArticle11(1),forwhichtheApplicantisentitledtorelief.
5.9. Finally, as set out in detail in Chapter IV, Article 11(1) provides a
solitaryexceptiontotheRespondent’sobligation“nottoobject”. Specifically,175
Article 11(1) could allow the Respondent an exceptional right to object to the
169
See Chapter IV, Section III.
170 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) 1155 UNTS 331, 8
ILM 679 (1969).
171 See Gabcikovo-Nagamaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports
1997, p. 7, at pp. 78-79.
172 See Chapter II, paras. 2.53-2.56.
173 See Chapter II, paras. 2.54-2.56.
174 See further Chapter VI.
175 See Chapter IV, paras. 4.29-4.33.
- 88 -Applicant’s membership of NATO if – and only if – “in the period pending
settlement of the difference that has arisen over the name of the State”, the
Applicant is to be referred to in NATO in a manner different to that set out in
paragraph 2 of resolution 817 (1993) (i.e., ‘the former Yugoslav Republic of
Macedonia’). However, that is emphatically not the case here. TheApplicant
is already referred to within NATO in the context of the PfP programme and
176
MAP process as ‘the former Yugoslav Republic of Macedonia’ and has
made clear its acceptance of that provisional appellation for purposes of its
admissiontomembershipinNATO.Indeed,theApplicant’sPresident,Branko
Crvenkovski, could not have been clearer when he affirmed that:
“ifnosolutiontothedisputeisfoundbeforewejoinNATO,weareready
to become a full member with the name with which we are currently
177
referred to at the UN, as a temporary solution.”
5.10. Importantly, the evidence shows that the Respondent did not rely on
that sole exception to its obligation “not to object” when it threatened to veto
178
the Applicant’s membership of NATO prior to or at the Bucharest summit.
Havingregardtothecontemporaneousstatementsmadebythehighestpolitical
authorities of the Respondent, there can be no doubt that the objection by the
Respondent in the circumstances of the Applicant’s efforts to join NATO is
inconsistent with the limited exception set out in Article 11(1) of the Interim
Accord.
5.11. On 17April 2008 theApplicant sent a note verbale to the Respondent
complaining about the Respondent’s actions and alleging a violation of
Article 11(1) of the Interim Accord. 179This was followed on 23 April 2008,
by a letter from theApplicant’s President, Branko Crvenkovski, to the United
Nations Secretary-General to inform the United Nations of its view that the
176 See Chapter II, paras. 2.50-2.51.
177 Stavros Tzimas, “We are ready to join NATO as FYROM”, Kathimerini (4 June 2007):
Annex 69.
178
See Chapter II, paras. 2.58-2.63.
179 See Chapter II, para. 2.65: Annex 50.
- 89 -Respondent’sactionsconstituteda“flagrantviolationofarticle11oftheInterim
180
Accord”. The Respondent’s response is reflected in a verbal note dated 15
May 2008. 181The verbal note implicitly recognizes that the Respondent’s
actions are inconsistent with the requirements ofArticle 11(1), and then seeks
to justify those actions “from a purely legal point of view” by reference to
allegationsthattheApplicanthadbeeninmaterialbreachoftheInterimAccord
“sinceitsconclusion”in1995.Yettheverbalnoteismostnoteworthyforwhat
it does not say: at no point does it seek to justify the Respondent’s actions in
objecting to NATO membership on the basis of the one ground that might be
permissible, namely that the Applicant would not be referred to in NATO in
the manner provided by resolution 817.
Section II: The Respondent’s Violation Was Not a Lawful Reaction to
Matters related to Other Provisions of the InterimAccord, since those
Provisions Call for Specific Dispute Resolution Procedures
5.12. Againstthisbackground,theRespondentisinnopositiontoescapethe
unequivocalobligationithasassumedtowardstheApplicantunderArticle11(1)
of the Interim Accord by making reference to other provisions of the Interim
Accord.OtherthantheexceptionnotedinArticle11(1)above,therearenoother
bases for the Respondent to refuse to comply with its clear obligation under
that provision “not to object”. The language ofArticle 11(1) is unambiguous,
anddoesnotallowtheRespondenttoraisemattersotherthanthosesetforthin
Article11(1)tojustifyitsactions. 18Inparticular,underthetermsoftheInterim
Accord relating to dispute resolution, the Respondent should have pursued
non-bindingorbindingmeansofresolvinganyconcernsoverinterpretationor
implementationoftheInterimAccordratherthanresorttoaunilateralmeasure
that is contrary toArticle 11.
180 See Chapter II, para. 2.65: Annex 42.
181 See Chapter II, para. 2.67: Annex 51.
182
See Chapter IV, above.
- 90 -5.13. In this regard, it is noteworthy that it is only since the dispute between
the Parties crystallized in late March/early April 2008 with the Respondent’s
objection to the Applicant being extended an invitation to accede to NATO
that the Respondent has informed the Applicant through diplomatic notes or
lettersthatthepurportedlegaljustificationforitsoppositiontotheApplicant’s
membership of NATO relates to alleged or purported breaches of the Interim
Accord by the Applicant. In particular, the Respondent’s verbal note of 15
May 2008 (in response to the Applicant’s aforementioned note verbale of 17
April 2008) alleged a vague series of purported material breaches of disparate
articlesoftheInterimAccord–claimingthattheApplicanthadbeen“asserting
and supporting territorial claims against Greece”, “promoting and condoning
irredentism”, “inciting violence, hatred, and hostility against Greece”, etc. –
183
without connecting those alleged breaches to any specific facts.
5.14. Sevenmonthslater,initsverbalnoteof15January2009,theRespondent
repeated its generalized allegation that “essential provisions of the [Interim]
Accord have been consistently materially breached” by the Applicant. The
verbal note purported to provide somewhat greater content to that allegation
by listing one historic and four “more recent” matters alleged to constitute
conduct in breach of the InterimAccord, namely: the naming of the airport in
Skopje and part of the “Pan European Corridor X” afterAlexander the Great,
the naming of the main stadium in Skopje after “Philip II the Macedon”, and
the use of the sixteen-pointed sun in government-sponsored “TV spots”. 184
Thereafter, further verbal notes raised other issues, such as: the use of the
sixteen-pointed sun in a municipal square, the appearance on a government
website of a photograph of theApplicant’s former flag being held by fans at a
183 Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of Foreign Affairs: Annex 51; see further Chapter II, para. 2.67.
The Respondent referred also to a violation in the form of “an intransigent and inflexible
stance” in the negotiations concerning the difference over the name, and referred to one
specific incident at the United Nations in 2007 concerning the use by of the Applicant’s
constitutional name.
184 Verbal note dated 15 January 2009 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of Foreign Affairs: Annex 52; see further para. 5.59 below.
- 91 -football match, and a February 2009 statement made orally by theApplicant’s
Foreign Minister in a television interview. 185
5.15. Insofar as the allegations are related to “symbols constituting part of
[the Respondent’s] historic or cultural patrimony”, the process for addressing
such allegations is set forth inArticle 7(3) of the InterimAccord.Article 7(3)
provides as follows:
“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.”
5.16. To the extent that, prior to 3April 2008, the Respondent believed that
the Applicant was using any such symbols, that did not give the Respondent
therighttoactunilaterallyinamannerastoviolateArticle11(1)oftheInterim
Accord;rather,Article7(3)prescribesaremedialprocesstobeadoptedinsuch
cases. In thus prescribing the diplomatic remedy and procedures available to
bothParties,theInterimAccordprecludesrecoursetounilateralmeasuresofthe
kindadoptedbytheRespondentinrelationtoArticle11(1)andtheApplicant’s
efforts to obtain membership of NATO. This Court has previously indicated
the importance of meaningful and good faith negotiations in the context of
186
treatyandevennon-treatydisputesratherthanresorttounilateralmeasures.
185 See the note verbale dated 24 February 2009 from the Respondent’s Ministry of Foreign
Affairs to the Applicant’s Liaison Office in Athens: Annex 53; and the verbal note dated
15April 2009 from the Respondent’s Liaison Office in Skopje to theApplicant’s Ministry
of ForeignAffairs, No. F. 141.1/49/AS 489:Annex 60; see also the verbal notes from the
Respondent’s Liaison Office in Skopje to the Applicant’s Ministry of Foreign Affairs
dated 15 April 2009, No. F. 141.1/49/AS 488 (Annex 59) and 3 June 2009 (Annex 64).
186
See, for example: North Sea Continental Shelf Case, Judgement, I.C.J Reports 1969,
p. 3, at paras. 47-48 (“The parties are under an obligation to enter into negotiations
with a view to arriving at an agreement … [T]hey are under an obligation so to conduct
themselves that the negotiations are meaningful, which will not be the case when either of
the parties insists upon its own position without contemplating any modification of it.”);
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997,
- 92 -5.17. Insofar as matters complained of by the Respondent relate to articles
of the Interim Accord other than Article 7(3), they still would not justify a
unilateralsuspensionbytheRespondentofitsobligationtotheApplicantunder
Article 11(1).Article 21 of the InterimAccord provides:
“1. The Parties shall settle any disputes exclusively by peaceful means
in accordance with the Charter of the United Nations.
2.Any difference or dispute that arises between the Parties concerning
the interpretation or implementation of this Interim Accord may be
submittedbyeitherofthemtotheInternationalCourtofJustice,except
for the difference referred to inArticle 5, paragraph 1.”
5.18. InrelationtotheprovisionsofArticle21(1),Article33(1)oftheUnited
Nations Charter lists the forms of appropriate dispute resolution available to
parties to a dispute pursuant to the Charter. Those are: “negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agenciesorarrangements,orotherpeacefulmeansoftheirownchoice”.None
of those forms of dispute resolution envisages the unilateral setting aside by
one party of a treaty obligation it owes to another party.
5.19. Moreover, if the Respondent regarded it as being necessary to resort
to a unilateral measure in relation to matters of the kind set out in its verbal
notes, such measure is contemplated in Article 21(2) of the Interim Accord:
submissionofthemattertothisCourtforbindingdisputeresolution(otherthan
resolution of the difference identified in Article 5(1)). Provision of a means
of recourse to compulsory dispute resolution under Article 21(2) precludes
unilateral suspension by a party of the obligation it owes to the other ▯party.
p. 7, at para. 139 (finding that the parties are under a legal obligation to negotiate in order
to consider how to fulfil the objectives of the treaty and further that there was no right
of Slovakia to act unilaterally). Most recently, in Case Concerning certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), I.C.J, Judgement of 4 June
2008, at para. 145, the Court regarded even a treaty provision that provided a State with
considerable discretion as nevertheless, under Article 26 of the 1969 Vienna Convention
on the Law of Treaties, requiring the State to demonstrate that the reasons for refusing to
fulfil the obligation fell within the exceptions allowed by the treaty provision.
- 93 -5.20. When suggesting that its actions are justified by reference to the
Applicant’s alleged breaches of the Interim Accord, the Respondent has not
articulated in any degree of specificity the basis on which it alleges that any
such alleged breaches would justify the Respondent’s action, such as whether
that action is permissible because the Interim Accord has been suspended or
is excused because the action is a lawful countermeasure. In the following
sections theApplicant explains why neither of those theories may be justified
in the present case, on the basis of the facts or the applicable law.
Section III. The Respondent’s Non-Performance Cannot Be Explained
on the Basis of a Suspension ofArticle 11(1) of the InterimAccord for
Material Breach
5.21. As indicated above, since its action of late March/early April 2008,
the Respondent has made a number of general allegations to the effect that
the Applicant has breached various obligations of the Interim Accord, and
has claimed that these justify the Respondent’s actions. The Respondent’s
argumenthasnotbeenfullyelaborated,butmightbepremisedontheclaimthat
allegedmaterialbreachesbytheApplicantentitledtheRespondentunilaterally
to decide, as of late March 2008, to suspend Article 11(1) (or perhaps the
entire Interim Accord). Such a premise would be extraordinary, in that the
Respondenthasmaintained(evenrecently)thattheRespondent“fullyrespects
theprovisionsoftheInterimAccord,onthebasisofthefundamentalprinciple
pacta sunt servanda.” 187If the Respondent “fully” respects the “provisions”
of the 1995 Interim Accord, then it presumably does not now and did not in
late March/earlyApril 2008 regardArticle 11(1) as suspended. Nevertheless,
if the Respondent is relying on a theory of suspension of its obligations under
Article 11(1), several points should be noted.
187 See, for example, the letter dated 2 June 2009 from the Respondent’s Permanent
Representative to the United Nations, John Mourikis, to the United Nations Secretary-
General, UN doc. S/2009/285: Annex 47.
- 94 -5.22. First, any such reliance on a theory of suspension is a tacit concession
thatitsactionsoflateMarch/earlyApril2008are–ontheirface–inconsistent
with the requirements of Article 11(1). There is no need to argue that Article
11(1) has been suspended unless the Respondent understands that its conduct
transgressed its obligations under that article.
5.23. Second,asatreatyinforce,theInterimAccordissubjecttothegeneral
provisions on treaty law reflected in the Vienna Convention on the Law of
Treaties. Pursuant to Article 26 and the principle of pacta sunt servanda, the
Convention makes the Respondent’s obligation under Article 11(1) of the
InterimAccord(“nottoobject”)bothlegalandbinding,andprovidesnoexcuse
for the Respondent’s failure to discharge this clear and important obligation
that it owes to theApplicant.
5.24. Third, the Vienna Convention on the Law of Treaties envisages the
possibility of suspension on grounds of material breach, but it is clear that this
right is both limited and exceptional. Part V of the Vienna Convention deals
with ‘Invalidity, Termination and Suspension of the Operation of Treaties’.
Article 60 of the Vienna Convention addresses ‘Termination or suspension of
theoperationofatreatyasaconsequenceofitsbreach’.Itprovides,inrelevant
part, that
“1. Amaterial breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part …
3. Amaterialbreachofatreaty,forthepurposesofthisarticle,consistsin:
(a)repudiationofthetreatynotsanctionedbythepresentConvention;
or
(b) the violation of a provision essential to the accomplishment of
the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision
in the treaty applicable in the event of a breach...”.
- 95 -5.25. Thus, a treaty may only be suspended, in whole or in part, in the event
that there is a “material breach” of the treaty by a party. Moreover, a “material
breach” is not just any violation of the treaty; it only encompasses violations
which reach the level of a “repudiation” of the treaty by the alleged violator
or violations of a provision “essential” to the accomplishment of the object
or purpose of the treaty. As noted in Section V below, none of the purported
violationsbytheApplicantoftheInterimAccordpriortoApril2008allegedbythe
RespondentwerecapableofconstitutingamaterialbreachoftheInterimAccord.
5.26. Fourth, Article 65 of the Vienna Convention provides for various
proceduralrequirementstobefollowedbyaPartywishingtosuspendatreaty.
In the present case, those conditions have not been met, since the Respondent
has not followed the specific and detailed procedures that are set out in that
Article.These provisions are intended to govern and limit the right of states to
suspendorterminatetheapplicationofatreatyandtopreventtheabuseofthat
right.As this Court has stated: “[T]he Vienna Convention of 1969 on the Law
of Treaties confines itself to defining – in a limitative manner – the conditions
in which a treaty may lawfully be denounced or suspended; while the effects
of a denunciation or suspension seen as not meeting those conditions are, on
thecontrary,expresslyexcludedfromthescopeoftheConventionbyoperation
ofArticle 73.” 188Moreover, the Court has stressed that the ‘‘stability of treaty
relations’’ requires that the grounds specified in the Vienna Convention be
applied in accordance with their strict conditions, finding that it ‘‘would set
a precedent with disturbing implications for treaty relations and the integrity
of the rule pacta sunt servanda’’if a party could unilaterally set aside a treaty
on grounds other than those so specified. Thus, the treaty could be terminated
189
“only on the limited grounds enumerated in the Vienna Convention.”
5.27. Thus, the Vienna Convention does not permit the Respondent,
unilaterally, to suspend its treaty obligations simply by alleging a material
breach by the Applicant. Article 65(1) of the Vienna Convention stipulates
188 Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, p.
7, at para. 47.
189 Ibid., at paras. 100, 104 and 114.
- 96 -a detailed, orderly procedure for notifying an intent to suspend. Specifically,
Article 65(1) provides:
“Apartywhich,undertheprovisionsofthepresentConvention,invokes
either a defect in its consent to be bound by a treaty or a ground for
impeaching the validity of a treaty, terminating it, withdrawing from it
or suspending its operation, must notify the other parties of its claim.
The notification shall indicate the measure proposed to be taken with
respect to the treaty and the reasons therefor.”
5.28. The Respondent has never notified the Applicant of any ground for
suspending the Interim Accord, nor notified the Applicant of any “measure
proposed to be taken with respect to the treaty and the reasons therefor”.
Specifically, at no time in the period prior to late March/early April 2008 did
the Respondent notify the Applicant that it had a ground for suspending the
InterimAccordandthatitwassuspendingtheInterimAccordsuchthatArticle
11(1) would not be applicable at the time of the Respondent’s objection to the
Applicant being invited to join NATO.
5.29. Moreover, it should be noted that the notification to be communicated
under Article 65(1) of the Vienna Convention cannot be done in a cursory,
informal fashion, nor even orally communicated as between diplomatic
representativesofthepartiestothetreaty.TheViennaConventionisquiteclear
thatthegravityofchargingamaterialbreachofatreaty,andrespondingtothat
breach by suspending the treaty in whole or in part, must be communicated in
writing through an “instrument” communicated to the other Party by a senior
diplomatic official. Vienna ConventionArticle 67 states:
“1. The notification provided for under article 65, paragraph 1, must
be made in writing.
2. Any act of … suspending the operation of a treaty pursuant
to the provisions of the treaty or of paragraphs 2 or 3 of article 65
shall be carried out through an instrument communicated to the other
parties. If the instrument is not signed by the Head of State, Head of
- 97 - Government or Minister for Foreign Affairs, the representative of the
State communicating it may be called upon to produce full powers.”
5.30. Needlesstosay,notonlydidtheRespondentnevernotifytheApplicant
prior to late March/earlyApril 2008 that it regarded a material breach to have
occurredthatmeritedsuspension,theRespondentneverdidsothroughawritten
instrument.
5.31. Further, even had the Respondent made such a notification in writing,
it still could not have unilaterally suspended the Interim Accord or any part
thereof, for the Vienna Convention imposes further procedural requirements.
Article 65(2) provides:
“If,aftertheexpiryofaperiodwhich,exceptincasesofspecialurgency,
shallnotbelessthanthreemonthsafterthereceiptofthenotification,no
partyhasraisedanyobjection,thepartymakingthenotificationmaycarry
outinthemannerprovidedinarticle67themeasurewhichithasproposed.”
5.32. Since the Applicant has never received formal, written notification of
a material breach that the Respondent believed merited suspension of all or
part of the Interim Accord, the minimum three-month period of notification
has never begun to run.As such, the Respondent was never entitled under the
Vienna Convention to “carry out” any act of suspension.
5.33. Further,iftheApplicanthadreceivedsuchnotification,whichitdidnot,
it would certainly have objected to any claim that it was in material breach of
the InterimAccord. The objection would have been all the more vigorous if it
had been notified that the Respondent proposed to suspend the application of
theobligationsetforthinArticle11(1).Article65(3)oftheViennaConvention
deals with the situation that would have followed theApplicant’s objection:
“If, however, objection has been raised by any other party, the parties
shall seek a solution through the means indicated in Article 33 of the
Charter of the United Nations.”
- 98 -5.34. This provision is to be read together with Article 65(4), which
provides:
“Nothingintheforegoingparagraphsshallaffecttherightsorobligations
of the parties under any provisions in force binding the parties with
regard to the settlement of disputes.”
5.35. Takentogether,theseprovisionsindicatethatiftheApplicanthadbeen
providedtheopportunitytoobjecttoanintentiononthepartoftheRespondent
to suspend the treaty, both Parties would then have been obligated to seek a
solutionthroughjudicialsettlement,arbitration,mediationorsomeotherform
ofdisputesettlement,beforetheRespondentcouldhaveresortedtoaunilateral
suspension of the Interim Accord or any of its provisions. In pursuit of such
dispute settlement, the Respondent should have instituted proceedings before
the Court under Article 21 of the Interim Accord, as discussed in the prior
section.Alternatively, by providing the requisite notification, the Respondent
would have provided the Applicant an opportunity to invoke proceedings
before the Court in advance of the Respondent’s unilateral suspension.Yet the
Applicant was not placed in a position to do so because of the Respondent’s
failure to fulfil the procedures set forth in Vienna ConventionArticle 65, as it
was obligated to do under international law.
5.36. Ignoring these procedural safeguards, the Respondent simply took
unilateral action. It then waited until the Applicant complained in late April
2008 of the Respondent’s actions and its violation of Article 11(1) of the
InterimAccord.OnlyafterreceivingthatcomplaintdidtheRespondentindicate
through written notice, and initially without any degree of specificity, its view
that theApplicant had committed a materialbreach of the InterimAccord, and
even then not by way of notification to the Applicant that the breach merited
suspension of the InterimAccord.
5.37. Such a radical short-cut to treaty suspension (if suspension is indeed
the Respondent’s purported explanation for transgressingArticle 11(1)) is not
permitted by the Vienna Convention. It undermines the requirements of the
- 99 -ViennaConventionontheLawofTreaties,andthestabilityoftheinternational
treaty regime. The Respondent has neither notified its intent to suspend any
part of the Interim Accord nor has it invoked the procedures envisaged by
Article 65 of the Vienna Convention and set out in Article 33 of the United
Nations Charter for resolving a dispute diplomatically. Since the Respondent
has neither notified an intent to suspend any part of the Interim Accord, nor
invokedtheproceduresenvisagedbyArticle33oftheCharter,thesubstantive
obligationsetoutinArticle11(1)oftheInterimAccord(“nottoobject”)remains
fully in effect. It is not and has never been suspended. In the absence of such
suspension, there is no alternative available to the Court but to conclude that
the provisions ofArticle 11(1) have been violated.
5.38. The procedural safeguards surrounding suspension of treaties on the
ground of material breach, as set out in the Vienna Convention and the UN
Charter,areabsolutelycentraltotheoperationoftheinternationaltreatysystem.
As Sir Humphrey Waldock, the Special Rapporteur of the International Law
CommissionwhichpreparedtheViennaConventiondraftarticles,explainedin
commentingontheprovisionsdealingwithinvalidity,terminationandsuspension:
“itisupontheproceduralprovisionsregulatingtheexerciseoftheright
to invoke these grounds that the effectiveness of this branch of the law
of treaties will ultimately depend.” 190
5.39. This position was further underscored by the International Law
Commission’s commentary on draft Article 62 of the Vienna Convention
(finalArticle 65) which explained:
“[T]he Commission considered it essential that the present articles
should contain procedural safeguards against the possibility that the
nullity, termination or suspension of the operation of a treaty may be
arbitrarily asserted as a mere pretext for getting rid of an inconvenient
191
obligation.”
190 Second Report on the Law of Treaties, A/CN.4/156, (1963) p.87, para. 1.
191 Draft Articles on the Law of Treaties, A/CN.4/190, (18 July 1966) p.262, para.1.
- 100 -5.40. Clearly,the“inconvenientobligation”oftheRespondenttotheApplicant
under Article 11(1) of the Interim Accord cannot be suspended merely by
unilateral assertion of a material breach.At times, the Respondent appears to
understand this, for it pulls back from implying any such suspension so as to
instead confirm that “Greece remains committed to the InterimAccord ... .” 192
In fact, the InterimAccord, includingArticle 11(1), remained fully in force as
between the two Parties at the time of the Respondent’s action of late March/
earlyApril2008,andremainsfullyinforcetoday.TheRespondent’sactionsat
Bucharest, and before, indicates not that it claimed to have suspendedArticle
11(1)duetoallegedmaterialbreachbytheApplicantbut,rather,thatitsactions
werepoliticallymotivated.Inshort,theRespondentfailedtotakeanyaccount
ofthetreatyobligationithadundertakenpursuanttoArticle11(1)oftheInterim
Accord or of the procedural obligations with respect to suspension that it had
accepted under the Vienna Convention on the Law of Treaties. An ex post
facto approach to legal justification based on suspension, if that is indeed the
Respondent’scontention,isunderminedbyitsownactionsandstatementsand
the relevant rules of international law.
Section IV. The Respondent’s Violation ofArticle 11(1) Cannot Be
Excused as a Lawful Countermeasure to a Precedent WrongfulAct by
theApplicant
5.41. GiventhatitsconductinlateMarch/earlyApril2008constitutedaclear
violationofArticle11(1),theRespondentmayattempttoclaimthatthatconduct
canbeexcusedbyreferencetotherulesgoverningcountermeasuresunderthelaw
ofstateresponsibilityforinternationallywrongfulacts,asprincipallyreflected
in the ILC Articles. Such an argument by the Respondent would differ from
that of the prior section, in that the contention would not be that the obligation
had been suspended, but rather that the obligation remained fully applicable
192
Letter dated 23 May 2008 from the Respondent’s Permanent Representative to the United
Nations, John Mourikis, to the United Nations Secretary-General, UN doc. S/2008/346 (28
May 2008):Annex 43. See also the verbal note dated 15 May 2008 from the Respondent’s
Liaison Office in Skopje to the Applicant’s Ministry of Foreign Affairs: Annex 51.
- 101 -and that the Applicant’s alleged material breaches “provide a justification or
excuse for non-performance while the circumstance in question subsists.” 193
5.42. Countermeasures,however,arenotacarteblancheforpowerfulstates
tohandoutlessonstoweakerones.Undergeneralinternationallaw,asreflected
inthejurisprudenceofthisCourt andintheILCArticles,acountermeasureis
lawfulonlyif(i)itistakeninresponsetoapreviouslycommittedwrong,(ii)it
istakenaftertheinjuredstatecallsuponthestatecommittingthewrongfulactto
discontinuetheconduct,forewarningthestateoftheintendedcountermeasure,
and(iii)itisproportionate.TheILCCommentarytotheArticleshascautioned
that “countermeasures are strictly limited to the requirements of the situation
and that there are adequate safeguards against abuse.” 195
5.43. The law on countermeasures is clearly set forth inArticles 49 to 54 of
theILCArticles,whichreflectgeneralinternationallaw.Aswiththejustification
for suspension in relation to material breach under the law of treaties, the
Respondent has failed to meet the notification requirements relating to resort
to countermeasures. Consequently, in the present case, theApplicant submits
that any argument by the Respondent in this regard does not even get off the
ground.Article 52(1) of the ILCArticles provides:
“Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to
fulfil its obligations ... ;
(b) notifytheresponsibleStateofanydecisiontotakecountermeasures
and offer to negotiate with that State.”
193 Report of the Commission to the General Assembly on the Work of its Fifty-Third
Session, Yearbook of the International Law Commission, vol. II, Part Two (2001), p. 71;
see also ibid, at p. 31 (“It is a matter for the law of treaties to determine whether a State
is a party to a valid treaty, whether the treaty is in force for that State and with respect to
which provisions, and how the treaty is to be interpreted.”)
194
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, p.
7, at paras. 83-85.
195 Report of the Commission to the GeneralAssembly, supra note 193, at p. 129.
- 102 -5.44. In the matter before this Court, however, the Respondent did not,
before taking its alleged countermeasures, “call upon” the Applicant to fulfil
its obligations by the means contemplated in Article 43 of the ILC Articles.
Article 43 calls upon the allegedly injured state to “give notice of its injury”, a
notification that the ILC Commentary states is “analogous toArticle 65 of the
1969ViennaConvention”ontheLawofTreaties. Moreover,theRespondent
failed to “notify” the Applicant of “any decision to take countermeasures” in
theformofanobjectiontotheApplicant’sadmissiontoNATO,letalone“offer
to negotiate” with theApplicant regarding this matter, as a means of avoiding
such a countermeasure, as required byArticle 52(1)(b) of the ILCArticles.
5.45. The reason for prior notification, both of the alleged breach and of the
intentiontotakeacountermeasure,istofulfilthepurposeofcountermeasures,
which is to induce compliance by the allegedly breaching State.Article 49(1)
makes it clear that
“AninjuredStatemayonlytakecountermeasuresagainstaStatewhich
isresponsibleforaninternationallywrongfulactinordertoinducethat
State to comply with its obligations … .”
5.46. Thus, rather than serve as a license to act unilaterally in punishment of
an alleged wrongdoer, the doctrine of countermeasures is designed to alert a
state as to potential self-help steps envisaged by another state, so that the first
state can come into compliance prior to those steps even being taken. As the
Commentary to the ILCArticles indicates:
“Countermeasures may only be taken by an injured State in order to
inducetheresponsibleStatetocomplywithitsobligations…,namely,
to cease the internationally wrongful conduct, if it is continuing, and to
providereparationtotheinjuredState.Countermeasuresarenotintended
as a form of punishment for wrongful conduct,butas an instrument for
197
achieving compliance with the obligations of the responsible State.”
196 Report of the Commission to the GeneralAssembly, supra note 193, at p. 119.
197 Ibid., at p. 130.
- 103 -5.47. Further, the Commentary explains:
“The principle underlying the notification requirement is that,
consideringtheexceptionalnatureandpotentiallyseriousconsequences
of countermeasures, they should not be taken before the other State is
given notice of a claim and some opportunity to present a response …
Countermeasures can have serious consequences for the target State,
which should have the opportunity to consider its position faced with
the proposed countermeasures.” 198
5.48. In the absence of advance notification by the Respondent that an
alleged wrong had occurred and that a planned countermeasure – in the form
of the Respondent objecting to the Applicant’s admission to NATO – would
be undertaken, theApplicant was not in a position to respond to that planned
countermeasure. Given that the Respondent did not follow the procedures for
countermeasures, a countermeasure (if that is how the Respondent seeks to
excuse its violation) could not lawfully be undertaken.
5.49. Further, Article 49 requires that the countermeasure operate only for
“the time being” and, “as far as possible, be taken in such a way as to permit
the resumption of performance of the obligations in question.” As the ILC
commentary observes:
“The phrase ‘for the time being’in [Article 49,] paragraph 2 indicates
the temporary or provisional character of countermeasures. Their aim
is the restoration of a condition of legality as between the injured State
and the responsible State, and not the creation of new situations which
cannotberectifiedwhatevertheresponseofthelatterStatetotheclaims
against it. Countermeasures are taken as a form of inducement, not
punishment: if they are effective in inducing the responsible State to
comply with its obligations of cessation and reparation, they should be
discontinued and performance of the obligation resumed.” 199
198 Report of the Commission to the GeneralAssembly, supra note 193, at p. 136.
199
Ibid., at pp. 130-131, and at p. 131 (“States should as far as possible choose countermea-
sures that are reversible”).
- 104 -5.50. Yet this particular countermeasure (if that is the Respondent’s excuse)
was not designed to permit resumption of the Respondent’s Article 11(1)
obligation in any meaningful sense, at least not as it relates to theApplicant’s
accession to NATO. The process for NATO accession is complex, involving
limited opportunities to proceed with particular steps towards membership.A
countermeasure that takes the form of an objection to a state’s membership at
a key moment in the accession process may not be quickly rectifiable by the
Respondent, no matter how theApplicant might react to the countermeasure.
5.51. Moreover, as noted inArticle 51 of the ILCArticles, countermeasures
“must be commensurate with the injury suffered, taking into account the
gravity of the internationally wrongful act and the rights in question.” This
concept of proportionality is well-embedded in jurisprudence relating to
200
countermeasures,includingindecisionsofthisCourt. FortheRespondentto
excuseitsbehaviourasalawfulcountermeasure,itwouldhavetodemonstrate
that any alleged violation of the Interim Accord by the Applicant merited a
countermeasurethatexcludedtheApplicantfromthemostimportantmultilateral
defenseorganisationoperatinginEurope.AsnotedinSectionVbelow,thisthe
Respondentsimplycannotshow.Indeed,excludingtheApplicantfromNATO,
potentially for a significant period of time, given the process for admission,
would be a vast and disproportionate overreaction by the Respondent to any
of the temporary, isolated or minor issues that occasionally have arisen in the
course of relations between the two Parties under the InterimAccord.
5.52. Furthermore, as noted in Article 50(2)(a) of the ILC Articles, the
Respondentwasrequiredtofulfil“itsobligations…underanydisputesettlement
applicablebetweenitandtheresponsibleState”.This,too,ithasclearlyfailed
to do.As discussed above in Section II,Articles 7(3) and 21(1) of the Interim
Accord make specific provision for such dispute settlement, stating that the
Parties “shall” pursue non-binding dispute resolution procedures. In the event
thattheRespondentbelievedthereexistedamaterialbreachbytheApplicantof
200 In the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports
1997,p.7,atparas.85-87,thisCourtruledthatSlovakia’scountermeasuresagainstHungary
were unlawful because they had failed to respect the principle of propor▯tionality.
- 105 -theInterimAccord,structuredrecoursetodiplomacy,mediation,orconciliation
ismandatedtoresolveanydisputes(withbindingdisputesettlementavailable
to either Party if diplomacy fails), rather than recourse to a countermeasure.
The ILC Commentary to theArticles notes that
“the provisions on countermeasures are residual and may be excluded
or modified by a special rule to the contrary …Thus, a treaty provision
precluding the suspension of performance of an obligation under
any circumstances will exclude countermeasures with respect to the
performance of the obligation. Likewise [is the case for] a regime for
disputeresolutiontowhichStatesmustresortintheeventofadispute…” 201
5.53. So long as the dispute resolution mechanisms provided for inArticles
7(3) and 21 of the InterimAccord continue to be available to the Parties, they
preclude recourse to unilateral countermeasures.
5.54. Finally, and for the avoidance of doubt, the Applicant has committed
nowrongagainsttheRespondenttowarrantanysortofa“countermeasure”,as
discussedinSectionVbelow.Consequently,inthepresentcase,anyargumentby
theRespondentthatitcouldengageacountermeasurefailsbecause,intheabsence
ofanyprecedentinternationallywrongfulactbytheApplicant,theRespondent
cannot claim to be an “injured State” entitled to pursue a countermeasure. 202
Section V. On the Merits, the Respondent’sAllegations of Material
Breach by theApplicant of the InterimAccordAre without Foundation
5.55. As explained in Section II above, the Respondent failed to pursue the
dispute resolution procedures of the Interim Accord that are required in the
event that a breach is thought to have occurred. Moreover, the Respondent
201
Report of the Commission to the General Assembly, supra note 193, at p. 129.
202 See Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports
1997, p. 7, at para. 83 (“In order to be justifiable, a countermeasure must … be taken in
response to a previous international wrongful act of another State … ▯.”).
- 106 -did not follow any of the procedural requirements necessary to maintain that
Article 11(1) of the InterimAccord had been suspended (Section III above) or
that it was in force but could be violated as a countermeasure to an antecedent
violation byApplicant (Section IV above).
5.56. In light of the points made in Sections II to IV, there is no need for the
CourttoconsiderthemeritsofanyoftheRespondent’sallegationsofviolations
by theApplicant of the InterimAccord. Nevertheless, theApplicant wishes to
makeabsolutelyclearthatitstronglydeniesthatithas,inanyfashion,violated
itsobligationsundertheInterimAccord,andcertainlynotinamannerthatwould
allowaclaimofmaterialbreachtoberaisedoracountermeasuretobewarranted.
5.57. Since May 2008, theApplicant has received a steady stream of verbal
notesfromtheRespondentallegingvariouspurportedbreachesbytheApplicant
of different provisions of the InterimAccord. These allegations on the merits
cannot serve as a basis for the measures taken by the Respondent in breaching
Article 11(1) of the InterimAccord.
5.58. First, many of the allegations are vague and generalized assertions,
unsupported by any factual foundation. In its very first verbal note of 15 May
2008, in which it purported to explain its behaviour of late March/earlyApril
2008, the Respondent listed a series of alleged “material breaches” by the
Applicant,suchas“assertingandsupportingterritorialclaimsagainstGreece”,
“promoting and condoning irredentism” and “inciting violence, hatred, and
hostility against Greece”. Yet the Respondent provided virtually no facts in
supportofsuchwide-rangingandseriousallegations.Relianceonunsubstantiated
rhetoric so as to justify its own unjustifiable conduct demonstrates that the
Respondent did not act in response to a specific, concrete material breach
of the Interim Accord by the Applicant, for no such breach was identified. 203
203
See, for example, the verbal note dated 15 May 2008 from the Respondent’s Liaison Office
in Skopje to theApplicant’s Ministry of ForeignAffairs:Annex 51. Seeeote verbale
dated 1 June 2009 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s
Liaison Office in Skopje, No. 32-4355/1, highlighting the lack of factual foundation to
allegations of breach of the Interim Accord made by the Respondent: Annex 63.
- 107 -5.59. Second,totheextentthattheRespondenthasidentifiedspecificalleged
violations of the Interim Accord (principally in diplomatic communications
beginninginDecember2008),virtuallyallofthoseconcernallegedoccurrences
postdating 3 April 2008. Examples include: the decision of the Applicant to
204
namepartofthePan-EuropeanCorridorXinhonourofAlexandertheGreat,
adecisionmadeinDecember2008,manymonthsaftertheRespondent’saction
oflateMarch/earlyApril2008;thedecisionbytheApplicanttonameastadium
in Skopje after “Philip II, the Macedon”, a decision also taken in December
205
2008; theuseofanarchaeologicalartifactdisplayingthesixteen-pointedsun
in television ‘spots’ of December 2008/January 2009; a comment made in
an interview ofApplicant’s Foreign Minister published on 4 February 2009, 207
almostayearaftertheRespondent’sconductoflateMarch/earlyApril2008;and
the use of the sixteen-pointed sun in the main square of one of theApplicant’s
municipalities. 208 The Respondent’s conduct of late March/early April 2008
cannot possibly be explained or justified by reference to alleged occurrences
that post-date the Respondent’s conduct.
204 See the verbal note dated 15 January 2009 from the Respondent’s Liaison Office in Skopje
to theApplicant’s Ministry of ForeignAffairs:Annex 52 and the note verbale in response
dated 27 February 2009 from theApplicant’s Liaison Office inAthens to the Respondent’s
Ministry of ForeignAffairs:Annex 54; see also the verbal note dated 15April 2009 from
the Respondent’s Liaison Office in Skopje to theApplicant’s Ministry of ForeignAffairs,
No. F. 141.1/48/AS 488: Annex 59, and the verbal notes in response dated 1 June 2009
from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office in
Skopje, No. 32-4354/1: Annex 62.
205
Verbal note dated 15 January 2009, supra.
206
Ibid.
207
Note verbale dated 24 February 2009 from the Respondent’s Ministry of ForeignAffairs to
the Applicant’s Liaison Office in Athens: Annex 53. See also thenote verbale in response
dated 19 March 2009 from theApplicant’s Ministry of ForeignAffairs to the Respondent’s
Liaison Office in Skopje: Annex 57, and the subsequent verbal note related to this matter
dated 3 June, from the Respondent’s Liaison Office in Skopje to the Applicant’s Ministry
of Foreign Affairs: Annex 64.
208
Verbal Note dated 15 April 2009 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of ForeignAffairs, No. F. 141.1/49/AS 489:Annex 60; anote verbale
of response dated 1 June 2009 from the Applicant’s Ministry of Foreign Affairs to the
Respondent’s Liaison Office in Skopje, No. 32-4354/1: Annex 62.
- 108 -5.60. Third, the limited, specific allegations made by the Respondent in the
verbal notes addressed to the Applicant concerning action by the Applicant
predatingApril 2008 do not amount to breaches of the InterimAccord. Those
allegations relate to the renaming of the airport in Skopje afterAlexander the
Great in December 2006, the introduction of the Applicant’s President at the
United Nations in September 2007, and “various decisions by governmental
and municipal authorities … to put up statues of historical figures of ancient
209
Macedonia(suchasAlexandertheGreatandPhilipII)inseveralcities…”.The
Applicant denies that these alleged actions constituted breaches of the Interim
Accord, let alone material breaches. Certainly none of these alleged actions
amountedtoarepudiationoftheInterimAccordortoaviolationofaprovision
“essential”totheaccomplishmentoftheobjectorpurposeoftheInterimAccord.
5.61. Further, to the extent that the Respondent’s conduct is justified as a
countermeasure, such a countermeasure would be highly disproportionate
to these alleged actions of the Applicant. As noted in paragraph 5.51 above,
excluding the Applicant from NATO, potentially for a significant period of
time, is a vastly disproportionate overreaction by the Respondent to measures
such as the renaming of an airport.
5.62. Fourth, the Respondent has at times represented that its opposition
to the Applicant’s application to join NATO was an exercise of its sovereign
rights and duties as a member of the North Atlantic Treaty. The Respondent
mayseektoassertthatitsobjectiontotheApplicant’smembershipwasinsome
way borne out of its obligation under the North Atlantic Treaty to assess the
Applicant’s dedication to “mutual trust and goodwill”, an essential quality in
which it claims the Applicant is lacking due to its purported intransigence in
210
relationtotheRespondent’sdisputewithitconcerningitsconstitutionalname.
209
Verbal note dated 15 May 2008, supra: Annex 59.
210 See, for example: Dora Bakoyannis, “The view from Athens”, International Herald
Tribune (31 March 2008): Annex 90; see also the verbal note dated 15 May 2008 from
the Respondent’s Liaison Office in Skopje to theApplicant’s Ministry of ForeignAffairs,
supra: Annex 51, (stating that the Applicant had “failed to meet the conditions of the
respect for the principle of peaceful and good neighbourly relations”▯)
- 109 -5.63. Thisisanunsustainableargument.Suchconsiderationshavenofactual
foundation:assetoutatChapterIIabove,thereisnoquestionthattheApplicant
meets all the requirements for NATO membership, including a commitment
to good neighbourly-relations. That has been made clear by theAlliance in its
BucharestSummitStatement,andbyitsMemberCountrieswiththeexception
oftheRespondent.Moreover,Article11(1)oftheInterimAccorddoesnotallow
suchconsiderationstobetakenintoaccountbytheRespondentasajustification
for the Respondent’s objection to the Applicant’s NATO membership (or its
membershipofanyotherorganizationorinstitution).Theonlymatteritallows
the Respondent to take into account is the manner in which the Applicant is
to be referred to within NATO. Accepting the Respondent’s interpretation
would eviscerate the object and purpose of Article 11(1), which was key to
theApplicant’s decision to conclude the InterimAccord.
5.64. Fifth, the Respondent’s characterization of the Applicant’s use of its
own constitutional name within organizations and institutions of which it is
a member, including the United Nations, as a breach of the Interim Accord
amountstoamisinterpretationandmisrepresentationofthetreaty. 211ChapterII,
paragraph 2.20, discusses the origin and crafting of the language of paragraph
2 of resolution 817. That language makes clear that the designation of ‘the
formerYugoslav Republic of Macedonia’was not intended to represent a new
provisional name for the Applicant state, as emphasized by the fact that ‘the’
and ‘former’ are uncapitalised and therefore do not form part of an official
title. Indeed, during the negotiations, the Applicant’s then Prime Minister
212
submitted a letter to the President of the Security Council (S/25541) (which
211
Verbal note dated 15 May 2008 from the Respondent’s Liaison Office in Skopje to the
Applicant’s Ministry of Foreign Affairs: Annex 51; see also the note verbale dated 16
April 2009 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison
Office in Skopje in response to an oral protest made by the Respondent’s Ambassador
concerning the use by the Applicant of its constitutional name at a meeting in Skopje:
Annex 61. The Respondent has also sought to misrepresent the Applicant’s use of its
constitutional name within the United Nations as showing “blatant disrespect for the
letter and spirit of Security Council Resolutions”: Letter dated 27 November 2008 from
the Respondent’s Permanent Representative to the United Nations, John Mourikis, to the
United Nations Secretary-General, UN doc. S/2008/746 (1 December 2008)▯: Annex 44.
212 Note by the President of the United Nations Security Council, attaching a letter dated 24
March 1993 to him from the Applicant’s Prime Minister, Branko Crvenkovski, UN doc.
- 110 -is explicitly referenced in resolution 817) stating unequivocally that “the
Republic of Macedonia will in no circumstances be prepared to accept ‘the
formerYugoslav Republic of Macedonia’as the name of the country”. Rather,
the formulation was a provisional descriptive designation referring to the
State’s previous status in order for it to be identifiable within the UN, pending
resolution of the dispute over its name. 213
5.65. Furthermore,resolution817wasonlyintendedtodealwiththemanner
inwhichtheApplicantwastobereferredtoforallpurposes“withintheUnited
Nations”.As made clear by one of those involved in the drafting of resolution
817, “[i]t did not purport to say anything about the position outside the United
Nations (though other organizations and some states have adopted the same
provisional way of referring to the state, a fact acknowledged in the 1995
214
InterimAccord).”
5.66. Significantly, the resolution did not require theApplicant to call itself
‘the former Yugoslav Republic of Macedonia’, and the Applicant has never
agreed to call itself by that name. In accepting the terms of resolution 817,
the Applicant agreed “to be referred to” under the provisional designation
within the United Nations, but was not fettering its sovereign right to call
itself by its constitutional name, as made clear by the Applicant during the
negotiation process. Consequently, in accordance with resolution 817, the
Applicant has continued to call itself by its constitutional name in written and
oral communication with the United Nations and its Member States.
S/25541 (6 April 1993): Annex 28.
213
Michael Wood, “Participation of Former Yugoslav States in the United Nations”, Max
PlanckYearbookofUnitedNationsLaw,Vol.1(1997),p231,atp239.MichaelWoodwas
involvedinthedraftingofresolution817.Thiswasfurtheremphasizedinthestatementmade
by the President of the Security Council following the adoption of resolution 817, which
clarified that the reference to ‘the former Yugoslav Republic’“merely reflects the historic
factthattheStaterecommendedforadmissiontotheUnitedNationsinthepresentresolution
was in the past a republic of the former Socialist Federal Republic of Yugoslavia”: Note
by the President of the Security Council, UN doc. S/25545 (7April 1993): seeAnnex 32.
214 Wood, op.cit., p. 239.
- 111 - 215
5.67. Moreover,ChapterIIrecounted theParties’agreementto“takepractical
measures so that the difference about the name of the Party of the Second Part
will not obstruct or interfere with normal trade and commerce between the
Party of the Second Part and third parties.” The “practical measures” referred
to inArticle 5(2) of the InterimAccord were intended to enable the Parties to
developmutualrelationsinamannerwhichdidnotcompromisetheirrespective
positions concerning the difference relating to the Applicant’s name, which
were to be the subject of further negotiation. Such “practical measures” were
agreeduponintheMemorandumon“PracticalMeasures”RelatedtotheInterim
Accord of New York of September 13, 1995, signed in Skopje on 13 October
1995, 216and the Memorandum Related to the InterimAccord of New York of
September 13, 1995, on the Mutual Establishment of Liaison Offices, signed
217
inAthens on 20 October 1995. The Memoranda, and the practical measures
set out within them, confirm (i) that theApplicant expressly reserved for itself
the right to call itself by its constitutional name, and that the Respondent did
not object to it so doing; and (ii) that theApplicant also agreed to be referred
to by the Respondent as ‘the formerYugoslav Republic of Macedonia’. Thus,
in relation to the designation of theApplicant, the InterimAccord can be said
to mirror for bilateral relations the understanding reached in resolution 817
in the framework of the United Nations: it effectively maintains each Party’s
218
respective position – as it was expressly intended to do.
5.68. In short, none of the Respondent’s allegations has any bearing on the
Respondent’s conduct of late March/earlyApril 2008.When those allegations
thathavesomefactualpredicatearecarefullyscrutinized,itisreadilyapparent
215 See Chapter II, paras. 2.33-2.36.
216
Memorandum on “Practical Measures” Related to the Interim Accord of New York of
September 13, 1995 (Skopje, 13 October 1995): Annex 3.
217
Memorandum Related to the InterimAccord of New York of September 13, 1995, on the
Mutual Establishment of Liaison Offices (Athens, 20 October 1995): Annex 4.
218
The Respondent’s verbal note dated 15 May 2008 from its Liaison Office in Skopje to the
Applicant’s Ministry of Foreign Affairs (Annex 51) refers to one incident in which the
(Macedonian) President of the GeneralAssembly referred to theApplicant’s President as
“the President of the Republic of Macedonia”. Such an act is not inconsistent with the
requirements of resolution 817 or of the Interim Accord.
- 112 -that they do not demonstrate any violation of the Interim Accord, let alone a
violation that would be considered a material breach.
Section VI. Conclusions
5.69. In Article 11(1) of the Interim Accord, the Respondent undertook
not to object to the Applicant’s efforts to join international organizations or
institutions, such as NATO, in circumstances in which the Applicant is to
be referred to in the manner envisaged by Security Council resolution 817.
In seeking to join NATO, the Applicant fully expressed its willingness to be
referredtoundertheprovisionaldesignationof‘theformerYugoslavRepublic
ofMacedonia’,assetoutinresolution817.TheRespondent,however,objected
totheApplicant’sadmissiontoNATOandtherebyviolatedArticle11(1)ofthe
Interim Accord. There is no lawful justification for the Respondent’s breach
of itsArticle 11(1) obligation in the present case, such as a justification based
on suspension of all or part of the InterimAccord for material breach or on the
right of countermeasures against an antecedent unlawful act. Moreover, the
variousvagueandunsubstantiatedexpostfactoallegationsbytheRespondent
of alleged breaches of the InterimAccord by theApplicant, to the extent they
can be understood, do not bear up under scrutiny. In light of the Respondent’s
breach, theApplicant is entitled to appropriate relief, as discussed in the next
chapter.
- 113 - CHAPTER VI
THE RELIEF SOUGHT
Introduction
6.1. In itsApplication theApplicant sought relief in two forms, namely (i)
a declaration that the Respondent has acted illegally, and (ii) an order that the
Respondent take all necessary steps to restore theApplicant to the status quo
ante and to refrain from any action that violates its obligation under Article
11(1) in the future.
6.2. InpreparingitsApplication,theApplicantwasguidedbyitsobjectives
inbringingtheseproceedingsandbythepracticeoftheCourt.Thereliefsought
has been narrowly crafted to meet the specific needs of the particular dispute
that has been referred to the Court by theApplicant, and does not require the
Court to express views on other matters that may divide the Parties but are not
in issue before the Court.
6.3. TheApplicanthasalsopaidcloseregardtothegeneralprinciplesreflected
intheILCArticles. Article28oftheILCArticlesrecognizesthegeneralprinciple
that the international responsibility of a State which is entailed by an inter-
nationallywrongfulact“involveslegalconsequences”.Article29providesthat:
“The legal consequences of an internationally wrongful act under this
PartdonotaffectthecontinueddutyoftheresponsibleStatetoperform
the obligation breached.”
6.4. In accordance with the rule reflected in this Article, the Respondent
has a continuing duty to comply with its obligations underArticle 11(1) of the
Interim Accord. This applies in particular in relation to such applications for
membership that theApplicant has pending or may make with respect to other
international organizations. At present, respect for the obligation is also of
- 114 -particular importance in relation to the European Union, given the statements
by the Respondent that it will object to the Applicant’s membership of that
institution,raisingseriousissuesrelatingtoitsadherencetoitsobligationunder
Article 11(1). TheApplicant reserves its rights in relation to any objection by
the Respondent to theApplicant’s EU accession process.
6.5. TheRespondent’sactsofobjectiontotheApplicant’sNATOmembership
intheperiodleadinguptoandincluding3April2008havethereforegivenrise
to real and continuing uncertainty, in particular with regard to theApplicant’s
prospects of being able to join NATO and other international organizations
in the future. This is one of the Applicant’s principal motivations in bringing
these proceedings: they are intended not only to address the issue of NATO
membership but membership of all regional, multilateral and international
organizations or institutions that the Applicant may be currently seeking or
may seek in the future, which the Respondent is in a position to impede or
veto. The Applicant reserves its rights in relation to any future objection by
the Respondent to its membership of any such organization or institution.
6.6. To be clear, and as described in Chapter V, theApplicant is concerned
only with the international responsibility of the Respondent, arising out of the
actionsattributabletoitinrelationtoitsobjectiontotheApplicant’smembership
of NATO. 219
6.7. ThemostrelevantprovisionsoftheILCArticlesaretobefoundinPart
One, Chapter II, which addresses general principles relating to the Content of
the International Responsibility of a State.
6.8. Article30oftheILCArticlesdealswithCessationandNon-Repetition,
matters with which theApplicant is greatly concerned. It provides:
“The State responsible for the internationally wrongful act is under an
obligation:(a)toceasethatact,ifitiscontinuing;(b)toofferappropriate
assurancesandguaranteesofnon-repetition,ifcircumstancessorequire.”
219 See Chapter V, para. 5.6.
- 115 -6.9. Article 31 of the ILCArticle deals with Reparation. It provides:
“1.The responsible State is under an obligation to make full reparation
for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by
the internationally wrongful act of a State.”
6.10. Relatedly,Article 34 of Part Two, Chapter II of theArticles addresses
Forms of Reparation. It provides:
“Fullreparationfortheinjurycausedbytheinternationallywrongfulact
shall take the form of restitution, compensation and satisfaction, either
singlyorincombination,inaccordancewiththeprovisionsofthischapter.”
6.11. The Applicant is concerned with reparation, but does not seek
compensation(atthisstageatleast,havingreserveditsrightsinthelightofwhat
other steps the Respondent may take in relation to other regional, multilateral
or international organizations or institutions). Rather, theApplicant seeks the
declaration and order identified above, to which we now turn.
Section I. The First Request
6.12. TheApplicant’s first request is retrospective, in the sense of looking to
the past conduct of the Respondent, asking the Court:
“to adjudge and declare that the Respondent, through its State organs
and agents, has violated its obligations under Article 11, paragraph 1
of the InterimAccord”.
6.13. The relief sought is straightforward, and follows clearly from the
elaborationofthefactsandlawassetoutintheearlierchaptersofthisMemorial.
The Applicant seeks a declaratory judgment to confirm that its interpretation
of Article 11(1) of the Interim Accord is correct, and that the Respondent’s
- 116 -objections are inconsistent with the requirements of Article 11(1). Such a
judgment would also likely have a continuing and forward reaching effect,
and contribute to conditions under which the Parties would act in accordance
with their obligations under the InterimAccord in the future.
6.14. There is nothing novel about the relief sought by theApplicant in this
form.The approach has been followed by the Court in many of its most recent
judgments.InitsJudgmentof19December2005inthe CaseconcerningArmed
Activities on the Territory of the Congo, the Court ruled that it:
“[f]indsthattheRepublicofUganda,byengaginginmilitaryactivities
against the Democratic Republic of the Congo on the latter’s territory,
byoccupyingIturiandbyactivelyextendingmilitary,logistic,economic
andfinancialsupporttoirregularforceshavingoperatedontheterritory
of the DRC, violated the principle of non-use of force in international
relations and the principle of non-intervention”. 220
6.15. More recently, in its Judgment of 19 January 2009 in the Request for
InterpretationoftheJudgmentof31March2004intheCaseconcerningAvena
and Other Mexican Nationals, the Court found:
“… that the United States of America has breached the obligation
incumbent upon it under the Order indicating provisional measures of
16 July 2008, in the case of Mr. José Ernesto Medellín Rojas; ... .” 221
6.16. Rulings of this kind, and the form of declaratory relief sought by the
Applicant,arewellestablishedinthejurisprudenceoftheCourt.Theirpurpose
was explained early on by the Permanent Court of International Justice. In the
Chorzow Factory (Interpretation) case:
220 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic
of the Congo v. Uganda), Judgment of 19 December 2005, at para. 345(1).
221
Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning
Avena and Other Mexican Nationals (Mexico v. United States ofAmerica), Judgment of
19 January 2009, at para. 61(2).
- 117 - “[T]he intention … is to ensure recognition of a situation at law, once
and for all and with binding force as between the Parties; so that the
legal position thus established cannot again be called in question in so
far as the legal effects ensuing therefrom are concerned.” 222
6.17. In the Northern Cameroons case the Court indicated its understanding
that where a declaratory judgment interprets a treaty (as is here requested of
the Court by the Applicant in relation to the Interim Accord), it will have a
continuing applicability. In this way, as the Applicant seeks, the declaratory
223
judgment that is sought will have, as the Court put it, a “forward re▯ach”.
Section II. The Second Request
6.18. TheApplicant’s second request is prospective, in the sense of looking
to the present and future conduct of the Respondent, and asks the Court to
adjudge and declare 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
TreatyOrganisationand/orofanyother“international,multilateraland
regional organizations and institutions” of which the Respondent is a
member,incircumstanceswheretheApplicantistobereferredtoinsuch
organizationorinstitutionbythedesignationprovidedforinparagraph
2 of United Nations Security Council resolution 817 (1993).”
6.19. The Applicant seeks an Order in this form to ensure that the Court’s
judgment is not merely retrospective but that it will restore the Applicant
222
Interpretation of Judgements Nos. 7 and 8 (The Chorzow Factory), Judgement, 1927,
P.C.I.J., Series A, No. 13, p. 5, at p. 20.
223 Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, I.C.J. Reports 1963, p. 15, at p. 37.
- 118 -to the status quo ante and prevent the Respondent in the future from acting
incompatibly or inconsistently with its obligations under Article 11(1),
particularly in relation to the Applicant’s continuing desire to receive an
invitation to join NATO. The effect of the Order should be to require the
Respondent to communicate to all members of NATO that it does not object
totheApplicant’smembershipofNATOincircumstanceswheretheApplicant
is to be referred to in NATO by the designation provided for in paragraph 2 of
Security Council resolution 817. The need for such an Order arises because
the effect of the Respondent’s violation of Article 11(1) is of a continuing
character:theApplicanthasacontinuingrelationshipwithNATO,asdescribed
224
in Chapter II; it has a continuing commitment to obtaining membership of
NATO; and the Respondent asserts that it will not allow theApplicant to take
forward its NATO membership application until such time as the outstanding
name issue is subject to a “mutually acceptable solution”. 225
6.20. AstheobligationsetforthinArticle11(1)remainsinforce,theconditions
for an order for cessation are plainly met. 226
6.21. The Order sought, which is consistent with the approach reflected in
Article 30 of the ILCArticles, 227is not, however, limited to the issue of NATO
224 See Chapter II, para. 2.50.
225 See NATO Press Release (2008)049, Bucharest Summit Declaration Issued by the Heads
of State and Government participating in the meeting of the North Atlantic Council in
Bucharest on 3 April 2008 (3 April 2008): Annex 65. For the position maintained by
Respondent,seeChapterII,para.2.60,andinparticularthestatementbytheRespondent’s
Foreign Minister, Dora Bakoyannis, following the informal meeting of NATO Foreign
Ministers in Brussels on 6 March 2008: Annex 83; the speech by the Respondent’s
Foreign Minister, Dora Bakoyannis, to the governing party’s Parliamentary Group on
27 March 2008: Annex 89; the article by the Respondent’s Foreign Minister: Dora
Bakoyannis, “The View from Athens”, International Herald Tribune (31 March 2008):
Annex 90; and the statement made in Parliament by the Respondent’s Prime Minister,
Kostas Karamanlis, on 22 February 2008, as reported in “Premier dangles FYROM
veto”, Kathimerini (23 February 2008):Annex 80; as well as the speech delivered by the
Respondent’s Prime Minister, Kostas Karamanlis to the governing party’s Parliamentary
Group on 27 March 2008:Annex 88.
226 SeeRainbowWarrior(NewZealandv.France),Awardof 30April1990,82ILR499at573.
227 See also C. Derman, “La Cessation de l’Acte Illicite”, Rev. Belge de Droit International,
(1990) I, p. 477.
- 119 -membership. It also relates to other ongoing or future applications on the part
of theApplicant for membership of “any other ‘international, multilateral and
regional organizations and institutions’”, including any procedures related
to the Applicant’s application for membership of the European Union. This
aspect of the relief sought is motivated by the Applicant’s serious concern
that the Respondent will adopt in relation to the EU the unlawful approach
that characterized its action on 3 April 2008 in respect of NATO. An Order
by the Court to deal with present and future conduct is needed to bring to an
immediate end the conduct of the Respondent that is wholly inconsistent with
the requirements ofArticle 11(1) of the InterimAccord.
6.22. The requested Order is premised on the fact that, until such time as
a permanent resolution to the name difference is found, the Applicant will
be referred to in NATO under the reference “provided for in paragraph 2 of
United Nations Security Council resolution 817 (1993)”, namely ‘the former
Yugoslav Republic of Macedonia’, without prejudice to whatever negotiated
arrangements may emerge in due course over the name issue.As described in
Chapter II, this is the designation by which theApplicant is presently referred
to in its current relations with NATO. 228It is also the designation by which
theApplicant is referred to in all other regional, multilateral and international
organizations and institutions of which the Respondent was a member prior
to theApplicant.
6.23. The form of explicit Order requested – aimed at requiring steps to
be taken to ensure that the future conduct of a party is consistent with its
international obligations – is not novel in any way. In the Arrest Warrant case,
forexample,theCourtruledthatthe“KingdomofBelgiummust,bymeansof
its own choosing, cancel the arrest warrant of 11April 2000 and so inform the
229 230
authorities to whom that warrant was circulated.” In the Nicaragua case,
228 See Chapter II, paras. 2.50-2.51.
229
Case concerning theArrest Warrant of 11April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, I.C.J. Reports 2002, p.3, at para. 78(3).
230
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States ofAmerica), Merits, Judgment, I.C.J. Reports 1986, p. 14.
- 120 -a similar explicit Order was sought from the Court to call upon the United
States to inter alia “cease and desist immediately from all use of force”. 231In
its judgment, the Court decided:
“that the United States of America is under a duty immediately to
cease and to refrain from all such acts as may constitute breaches of
the foregoing legal obligations”. 232
6.24. In the LaGrand case, an equally prospective approach was taken by
the Court in ruling that:
“should nationals of the Federal Republic of Germany nonetheless be
sentenced to severe penalties, without their rights under Article 36,
paragraph 1(b), of the [Vienna Convention on Consular Relations]
having been respected, the United States of America, by means of
its own choosing, shall allow the review and reconsideration of the
conviction and sentence by taking account of the violation of the rights
set forth in that Convention.” 233
6.25. More recently, in the Avena case, the Court made a virtually identical
ruling in relation to Mexican nationals under Article 36, paragraph (h) of the
Vienna Convention on Consular Relations of 24April 1963. 234
231 ApplicationoftheRepublicofNicaraguaInstitutingProceedingsintheCaseConcerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States ofAmerica), filed in the Registry of the Court onApril 9, 1984, at para. 26(g).
232 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States ofAmerica), Merits, Judgment, I.C.J. Reports 1986, p. 14, at para. 292(1▯2).
233 LaGrand (Germany v. United States ofAmerica), Judgment, I.C.J. Reports 2001, p. 466,
at para. 128(7).
234 AvenaandOtherMexicanNationals(Mexicov.UnitedStatesofAmerica),I.C.J.Reports
2004, p. 12, at para. 153 (11).
- 121 - Section III. Reservation of Rights
6.26. In its Application, the Applicant reserved its right “to modify and
extend the terms of thisApplication, as well as the grounds involved”. For the
avoidanceofdoubt,theApplicantwishestomakeclearthatthisreservationof
rightextendstothereliefsought,intheeventthatfurtheractsoftheRespondent
require any such additional relief to be sought.
- 122 - - 133 -
SUBMISSIONS
On the basis of the evidence and legal arguments presented in this Memorial,
theApplicant
Requests the Court:
(i) toadjudgeanddeclarethattheRespondent,throughitsStateorgans
and agents, has violated its obligations underArticle 11, paragraph
1 of the InterimAccord; and
(ii) to order that the Respondent immediately take all necessary steps
to comply with its obligations underArticle 11, paragraph 1 of the
InterimAccord, and to cease and desist from objecting in any way,
whetherdirectlyorindirectly,totheApplicant’smembershipofthe
NorthAtlanticTreatyOrganisationand/orofanyother“international,
multilateralandregionalorganizationsandinstitutions”ofwhichthe
Respondentisamember,incircumstanceswheretheApplicantisto
be referred to in such organization or institution by the designation
provided for in paragraph 2 of United Nations Security Council
resolution 817 (1993).
17 July 2009
-----------------------------------------------
Nikola Dimitrov
Co-Agent of the Republic of Macedonia
- 123 -- 124 - - 135 -
Certification
I certify that the annexes are true copies of the documents referred to
and that the translations provided are accurate.
------------------------------------------------
Nikola Dimitrov
Co-Agent of the Republic of Macedonia
- 125 -- 126 - LIST OFANNEXES
VOLUME II
INTERNATIONALINSTRUMENTS
Annex 1 Interim Accord between the Applicant and the Respondent (New
York, 13 September 1995)
Annex 2 Convention Concerning Mutual Legal Relations between the
Federal People’s Republic of Yugoslavia and the Kingdom of
Greece (Athens, 18 June 1959), UNTS vol. 368
Annex 3 Memorandumon“PracticalMeasures”RelatedtotheInterimAccord
of New York of September 13, 1995 (Skopje, 13 October 1995)
Annex 4 Memorandum Related to the Interim Accord of New York of
September 13, 1995, on the Mutual Establishment of Liaison
Offices (Athens, 20 October 1995)
Annex 5 ProtocolonTransportandCommunications(Athens,20October1995)
Annex 6 ProtocolonMutualVisaRegimeandFees(Athens,20October1995)
Annex 7 Protocol on Border Cooperation (Athens, 23 June 1998)
Annex 8 Protocol of Cooperation on Police Matters (Ohrid, 8 July 1998)
Annex 9 Agreement on Military Cooperation (Skopje, 14 December 1999)
Annex 10 Protocol between the Ministry of Defence of the Party of the
Second Part and the Ministry of Defence of the Party of the First
Part on Co-operation in the Field of Military Education (Skopje,
19 December 2002)
Annex 11 MemorandumontheMutual,EstablishmentofOfficesforConsular,
Economic and Commercial Affairs in Bitola and Thessaloniki
(Skopje, 22 January 2004)
Annex 12 MemorandumofUnderstandingbetweentheMinistryofDefenceof
the Party of the Second Part and the Ministry of National Defence
of the Party of the First Part Concerning Support to the Combined
Medical Team for Participation in NATO-Led Operation ISAF in
Afghanistan (Athens, 27 July 2005)
- 127 - NATIONAL INSTRUMENTS
Annex 13 “Declaration on the Sovereignty of the Socialist Republic of
Macedonia” (25 January 1991),Official Gazette of the Socialist
Republic of Macedonia, No 5, Year XLVII (Skopje, 1 February
1991)
Annex 14 “Decision PromulgatingAmendments LXXXII to LXXXV to the
ConstitutionoftheSocialistRepublicofMacedonia”(7June1991),
Official Gazette of the Socialist Republic of Macedonia, No. 27,
Year XLVII (Skopje, 11 June 1991)
Annex 15 “Declaration”(17September1991O ),fficialGazetteoftheRepublic
of Macedonia, No. 42, Year XLVII (Skopje, 18 September 1991)
Annex 16 “Results of the Referendum held on 8 September 1991 in the
Republic of Macedonia”, Official Gazette of the Republic of
Macedonia, No. 43, Year XLVII (Skopje, 20 September 1991)
Annex 17 “Decision on Promulgating the Constitution of the Republic of
Macedonia” (17 November 1991)O , fficial Gazette of the Republic
of Macedonia, No. 52, Year XLVII (Skopje, 22 November 1991)
Annex 18 “Declaration on the International Recognition of the Republic of
Macedonia as a Sovereign and Independent State” (19 December
1991),Official Gazette of the Republic of Macedon, o. 57,Year
XLVII (24 December 1991)
Annex 19 “Decision PromulgatingAmendments I and II to the Constitution
of the Republic of Macedonia” (6 January 1992, fficial Gazette
of the Republic of Macedonia,No. 1, Year XLVIII (10 January
1992)
Annex 20 “Declaration” (3 July 1992),Official Gazette of the Republic of
Macedonia, No. 40, Year XLVIII (4 July 1992)
Annex 21 “Decision on the Attainment of Membership by the Republic of
Macedonia of the NorthAtlanticTreaty Organization - NATO” (23
December 1993), Official Gazette of the Republic of Macedonia,
No. 78, Year XLIX (27 December 1993)
- 128 - UNITED NATIONS DOCUMENTS AND CORRESPONDENCE
Annex 22 United Nations Security Council resolution 817 (1993) (SC/
RES/817) (7 April 1993)
Annex 23 United Nations Security Council resolution 845 (1993) (SC/
RES/845) (18 June 1993)
Annex 24 Letter dated 17 December 1991 from the Representatives of
Belgium, France and the United Kingdom of Great Britain and
Northern Ireland to the United NationsAddressed to the President
of the Security Council, UN doc. S/23293 (17 December 1991)
Annex 25 Note by the United Nations Secretary-General, circulating the
applicationdated30July1992fromtheApplicant’sPresident,Kiro
Gligorov, for admission to membership of the United Nations, UN
doc. S/25147 (22 January 1993)
Annex 26 Letter dated 25 January 1993 from the Respondent’s Permanent
Representative to the United Nations, Antonios Exarchos, to the
United Nations Secretary-General, forwarding a letter and annex of
the same date from the Respondent’s Minister for ForeignAffairs,
Michael Papaconstantinou, to the United Nations Secretary-
General, UN doc. S/25158 (25 January 1993)
Annex 27 Letter dated 5 February 1993 and Memorandum from the
Applicant’s President, Kiro Gligorov, to the United Nations
Secretary-General
Annex 28 Note by the President of the United Nations Security Council,
attaching aletter dated 24 March 1993 to him from theApplicant’s
PrimeMinister,BrankoCrvenkovski,UNdoc.S/25541(6April1993)
Annex 29 Note by the President of the United Nations Security Council,
attaching a letter dated 5 April 1993 to him from the Applicant’s
Prime Minister, Branko Crvenkovski, UN doc. S/25542 (6 April
1993)
Annex 30 Letter dated 6 April 1993 from the Respondent’s Permanent
Representative to the United Nations, Antonios Exarchos, to the
President of the Security Council, forwarding a letter dated 6April
1993 to him from the Respondent’s Minister for Foreign Affairs,
Michael Papaconstantinou, UN doc. S/25543 (6 April 1993)
- 129 -Annex 31 Committee on the Admission of New Members, Report of
the Committee Concerning the Application for Admission to
Membership in the United Nations contained in Document
S/25147, UN doc. S/25544 (7April 1993)
Annex 32 Note by the President of the Security Council, UN Doc. S/25545
(7 April 1993)
Annex 33 Letter dated 26 May 1993 from the United Nations Secretary-
General, Boutros Boutros-Ghali, to the President of the Security
Council, forwarding the Report of the Secretary-General submitted
pursuant to resolution 817, UN doc. S/25855 (28 May 1993)
Annex 34 Letter dated 28 May 1993 from the United Nations Secretary-
General to the President of the Security Council, circulating a
statementtransmitted to himby theRespondent’sAmbassador and
Special Envoy, George D. Papoulias, on 27 May 1993, UN doc.
S/25855/Add.1 (3 June 1993)
Annex 35 Letterdated3June1993fromtheUnitedNationsSecretary-General
to the President of the Security Council, transmitting a letter dated
29 May 1993 to him from theApplicant’s President, Kiro Gligorov,
UN doc. S/25855/Add.2 (3 June 1993)
Annex 36 Letter dated 5 November 1993 from the Respondent’s Minister of
ForeignAffairs,KarolosPapoulias,totheUnitedNationsSecretary-
General, in G. Valinakis & S. Dalis (eds.),The Skopje Question
— Attempts towards Recognition and the Greek Position, Official
Texts 1990-1996, (Introduction:K. ofos,Preface:T.Couloumbis),
(2nd ed., 1996), Sideris/ELIAMEP, pp. 177-180
Annex 37 Letterdated8November1993fromtheUnitedNationsSecretary-
General to the Respondent’s Minister of ForeignAffairs, Karolos
Papoulias, in G. Valinakis & S. Dalis (eds, p. cit, pp. 181-182
Annex 38 Letter dated 24 November 1993 from the Applicant’s Minister
of Foreign Relations, Stevo Crvenkovski, to the United Nations
Secretary-General
Annex 39 Letter dated 31 March 1994 from the United Nations Secretary-
GeneraltothePresidentoftheSecurityCouncil,UNdoc.S/1994/376
(1 April 1994)
- 130 -Annex 40 UnitedNationsSecretary-GeneraR l,eportoftheSecretary-General
pursuant to Resolution 908 (1994), UN doc. S/1994/1067 (17
September 1994)
Annex 41 NotebytheUnitedNationsSecretary-GeneraltransmittingN tieth
Periodic Report on the Situation of Human Rights in the territory of
the former Yugoslavia,submitted byTadeusz Mazowiecki, Special
Rapporteur of the United Nations Commission on Human Rights,
UN doc. S/1994/1252 (4 November 1994)
Annex 42 Letter dated 23 April 2008 from the Chargé d’Affaires of the
Permanent Mission of the Applicant to the United Nations
Secretary-General, annexing a letter to him from the Applicant’s
President,BrankoCrvenkovski,UNdoc.S/2008/290(2May2008)
Annex 43 Letter dated 23 May 2008 from the Respondent’s Permanent
RepresentativetotheUnitedNations,JohnMourikis,totheUnited
Nations Secretary-General, UN doc. S/2008/346 (28 May 2008)
Annex 44 Letter dated 27 November 2008 from the Respondent’s Permanent
RepresentativetotheUnitedNations,JohnMourikis,totheUnited
NationsSecretary-General,UNdoc.S/2008/746(1December2008)
Annex 45 Letter dated 6 February 2009 from the Respondent’s Permanent
RepresentativetotheUnitedNations,JohnMourikis,totheUnited
NationsSecretary-General,UNdoc.S/2009/82(10February2009)
Annex 46 Letter dated 14 March 2009 from the Applicant’s Permanent
Representative to the United Nations, Slobodan Tasovski, to the
UnitedNationsSecretary-General,UNdoc.S/2009/150(18March
2009)
Annex 47 Letter dated 2 June 2009 from the Respondent’s Permanent
RepresentativetotheUnitedNations,JohnMourikis,totheUnited
Nations Secretary-General, UN doc. S/2009/285 (3 June 2009)
DIPLOMATIC CORRESPONDENCE BETWEEN THE PARTIES
Annex 48 Letter dated 13 November 1991 from the Applicant’s President,
Kiro Gligorov to the Respondent’s Prime Minister, Constantine
Mitsotakis
- 131 -Annex 49 Letter dated 23 February 1994 from the Applicant’s President,
Kiro Gligorov, to the Respondent’s Prime Minister, Andreas
Papandreou
Annex 50 Note verbale dated 17 April 2008 from the Applicant’s Ministry
of Foreign Affairs to the Respondent’s Liaison Office in Skopje
Annex 51 Verbal note dated 15 May 2008 from the Respondent’s Liaison
Office in Skopje to the Applicant’s Ministry of Foreign Affairs
Annex 52 Verbal note dated 15 January 2009 from the Respondent’s Liaison
Office in Skopje to the Applicant’s Ministry of Foreign Affairs
Annex 53 Note verbale dated 24 February 2009 from the Respondent’s
Ministry of Foreign Affairs to the Applicant’s Liaison Office in
Athens
Annex 54 Note verbale dated 27 February 2009 from theApplicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs
Annex 55 Letter dated 13 March 2009 from the Applicant’s Minister for
ForeignAffairs,Antonio Milošoski, to the Respondent’s Minister
for Foreign Affairs, Dora Bakoyannis
Annex 56 Letter dated 18 March 2009 from the Applicant’s Minister of the
Interior, Gordana Jankulovska, to the Respondent’s Minister of the
Interior, Prokopis Pavlopoulos
Annex 57 Note verbale dated 19 March 2009 from theApplicant’s Ministry
of Foreign Affairs to the Respondent’s Liaison Office in Skopje
Annex 58 Letterdated9April2009fromtheApplicant’sMinisterforForeign
Affairs, Antonio Milošoski, to the Respondent’s Minister for
Foreign Affairs, Dora Bakoyannis
Annex 59 Verbal note dated 15 April 2009 from the Respondent’s Liaison
Office in Skopje to the Applicant’s Ministry of Foreign Affairs,
No. F. 141.1/48/AS 488
Annex 60 Verbal note dated 15 April 2009 from the Respondent’s Liaison
Office in Skopje to the Applicant’s Ministry of Foreign Affairs,
No. F. 141.1/49/AS 489
Annex 61 Note verbale dated 16 April 2009 from the Applicant’s Ministry
of Foreign Affairs to the Respondent’s Liaison Office in Skopje
- 132 -Annex 62 Note verbale dated 1 June 2009 from the Applicant’s Ministry of
ForeignAffairs to the Respondent’s Liaison Office in Skopje, No.
32-4354/1
Annex 63 Note verbale dated 1 June 2009 from the Applicant’s Ministry of
ForeignAffairs to the Respondent’s Liaison Office in Skopje, No.
32-4355/1
Annex 64 Verbal note dated 3 June 2009 from the Respondent’s Liaison
Office in Skopje to the Applicant’s Ministry of Foreign Affairs
PRESS ARTICLES AND STATEMENTS
Annex 65 NATO Press Release (2008)049,Bucharest Summit Declaration
Issued by the Heads of State and Government participating in the
meeting of the NorthAtlantic Council in Bucharest on 3April 2008
(3 April 2008)
Annex 66 “Greece to veto Macedonia’s EU, NATO accession if no deal on
name: reports”, Agence France Presse (5 November 2004)
Annex 67 “Greece May Block Macedonia’s NATO, EU Bids Over Name
Issue”, Dow Jones International News (5 November 2004)
Annex 68 Press Office of the Embassy of the Respondent inWashington, DC,
Press Release,FM Molyviatis briefs premier on developments in
FYROM issue (12 October 2005)
Annex 69 Stavros Tzimas, “We are ready to join NATO as FYROM”,
Kathimerini (4 June 2007)
Annex 70 Government of the Republic of Slovenia, Ministry of Defence,
Defence Minister Says Macedonia Meeting NATO Standards (27
July 2007)
Annex 71 “Karamanlis: Greece to veto Macedonia’s EU, NATO bids if name
issue not resolved”, Southeast European Times (7 September
2007)
Annex 72 “Czech Defence Minister promises help to Macedonia on path to
NATO”, Czech News Agency, (14 September 2007)
- 133 -Annex 73 Embassy of the Respondent in Washington, DC, Interview of FM
Ms. Bakoyannis in Athens daily Kathimerini, with journalist Ms.
D. Antoniou (Sunday, 14 October 2007) (15 October 2007)
Annex 74 “ForeignministerreceivesUKsupportforMacedonia’sEU,NATO
integration”, BBC Monitoring Europe (18 October 2007)
Annex 75 “Macedonian, Canadian ministers view NATO reforms, peace-
keeping missions”, BBC Monitoring Europe (1 November 2007)
Annex 76 “Macedonian, Slovak Foreign Ministry officials discuss relations,
EU, NATO”, BBC Monitoring Europe (23 January 2008)
Annex 77 “Turkey pledges to lobby for Macedonia’s NATO accessio”,BC
Monitoring Europe (10 February 2008)
Annex 78 “Macedonia, Luxembourg prime minister discuss NATO, EU
accession”, BBC Monitoring Europe (15 February 2008)
Annex 79 MinistryofForeignAffairsoftheRepublicofLatvia,PressRelease,
Latvian Foreign Minister expresses support for integration of
Croatia into EU and NATO (19 February 2008)
Annex 80 “Premier dangles FYROM veto”, Kathimerini (23 February
2008)
Annex 81 “Bulgaria backs Macedonia for NATO membership”S ,ofia News
Agency (5 March 2008)
Annex 82 Ministry of Foreign Affairs of the Republic of Lithuania, Press
Release,Lithuania firmly supports the open door policy principle
of the NATO Alliance (6 March 2008)
Annex 83 Dora Bakoyannis, “NATO Enlargement andAlliance Principles”,
Atlantic-community.org (uploaded 7 March 2008)
Annex 84 RomanianMinistryofForeignAffairs,PressReleas Pe,rticipation
of the Minister of ForeignAffairs,Adrian Cioroianu, in the meeting
of NATO Foreign Ministers (7 March 2008)
Annex 85 “Netherlands deputies say name no condition for Macedonia’s
NATO entry”, BBC Monitoring Europe (11 March 2008)
Annex 86 “SlovakiasupportsMacedonia’sefforttojoinNATO,EU P”e,ople’s
Daily Online (12 March 2008)
- 134 -Annex 87 Government of the Republic of Estonia, Press Release,Prime
Minister Ansip confirmed Estonia’s support of Macedonia’s
aspirations towards NATO (26 March 2008)
Annex 88 Embassy of the Respondent in Washington, DC,Excerpts from
Prime Minister Mr. Kostas Karamanlis’speech on foreign policy
before the governing party’s Parliamentary Group (27 March
2008)
Annex 89 Embassy of the Respondent inWashington, DCS,peechofFMMs.
Bakoyannis before the governing party’s Parliamentary Group (27
March 2008)
Annex 90 Dora Bakoyannis, “The view fromAthens”I,nternational Herald
Tribune (31 March 2008)
Annex 91 “CzechRep, USA to agree on radar treaty in a couple of days;
adds more info in paras 6-7”,CTK National News Wire (31 March
2008)
Annex 92 “Hungary, Germany support NATO membership of three Balkan
states”, Budapest Times (31 March 2008)
Annex 93 Lech Kaczynski, “NATO must embrace Ukraine and Georgia”,
the Financial Times (30 March 2008)
Annex 94 “President leaves for NATO summit on Wednesday”P ,AP News
Wire(1 April 2008)
Annex 95 “President Kaczynski in Bucharest for NATO SummitP,APNews
Wire(2 April 2008)
Annex 96 “Slovene premier hopes for compromise on Macedonia’s name”,
BBC Monitoring Europe (2 April 2008)
Annex 97 “Bush Delivers Remarks at NATO Summit”T ,he Washington Post
(2 April 2008)
Annex 98 United States Department of State, White House Office of the
Press Secretary,Press Briefing by Secretary of State Condoleezza
Riceand NationalSecurityAdvisor Stephen Hadle(y3April2008)
Annex 99 Ministry of ForeignAffairs of the Respondent, Message of Prime
Minister Mr. Kostas Karamanlis (3 April 2008)
- 135 -Annex 100 JulianBorger,“KarzaiSeeksBiggerRoleforLargerAfghanArmy:
Move Cheers NATO Leaders Split over New Members: French
Troop Pledge Falls Short of Partners’ Hopes”, he Guardian(3
April 2008)
Annex 101 “Italian embassy denies media reports on support of veto on
Macedonian NATO entry”, BBC Monitoring Europe (4 April
2008)
Annex 102 United States Office of the Press Secretary, Radio Address of
the United States President, George W. Bush, resident’s Radio
Address (5 April 2008)
Annex 103 Ivo H. Daalder and James M. Goldgeier, “A mockery of
enlargement”, The New York Times (8 April 2008)
Annex 104 “You Were a Victim of the Veto”, Interview with the Slovenian
Prime Minister, Janez Jansa, A1 Television, (20 March 2009)
Annex 105 Hristo Ivanovski, “Interview: Janez Jansa, Former Slovenian Prime
Minister - Macedonia was a Victim in Bucharest”D, nevnik (21
March 2009)
Annex 106 Goran Momirovski, “Janez Jansa: The decision not to invite
Macedonia to membership was adopted because of the Greek
veto on Macedonia”, Kanal 5 TV (25 June 2009)
OTHER DOCUMENTS
Annex 107 Letter dated 20 December 1991 from the Applicant’s Minister
for Foreign Relations, Dr. Denko Maleski, to the President of the
Council of Ministers of the European Communities
Annex 108 Applicant’s Ministry of Foreign Relatis,nswers of the Republic
of Macedonia to the Questions of the Arbitration Commission of
the Conference for Peace in Yugoslavia (29 December 1991)
Annex 109 Letter dated 3 January 1992 from the Respondent’s President,
Kostas Karamanlis, to the European Communities Heads of
Government, in G. Valinakis & S. Dalis (eds,p. cit., pp. 63-64
- 136 -Annex 110 Letter dated 6 January 1992 from the Applicant’s Minister for
Foreign Affairs, Dr. Denko Maleski, to the President of the
Arbitration Commission of the Conference onYugoslavia, Robert
Badinter
Annex 111 Letter dated 10 January 1992 from the Applicant’s Minister
for Foreign Affairs, Dr. Denko Maleski, to the President of the
Arbitration Commission of the Conference onYugoslavia, Robert
Badinter
Annex 112 Letter dated 17 January 1992 from the Respondent’s Minister for
ForeignAffairs,Andonis Samaras, to the European Communities
Foreign Ministers, in A. Tziambiris,Greece, European Political
Cooperation and the Macedonian Question (2000), Ashgate, at
pp. 207-213 (Appendix II)
Annex 113 Letter dated 21 January 1992 from the Respondent’s President,
Kostas Karamanlis, to the Prime Minister of Italy, in G. Valinakis
& S. Dalis (eds.), op. cit., pp. 83-84
Annex 114 Official address of the Respondent’s Minister for ForeignAffairs,
Andonis Samaras,Address of Foreign Minister Andonis Samaras
(Lisbon, 17 February 1992), in A. Tziambiri, reece, European
Political Cooperation and the Macedonian Question (2000),
Ashgate, at pp. 218-232 (Appendix IV)
Annex 115 Statement of the Applicant’s President, Kiro Gligor,tatement
on the Declaration of the European Community on Macedonia,
dated 2 May 1992 (2 May 1992)
Annex 116 Office of the President,Statement by the Applicant’s President,
Kiro Gligorov, in respect of the EC Declaration of June 27, 1992
in Lisbon (Skopje, 28 June 1992)
Annex 117 Letter dated 1 October 1992 from theApplicant’s President, Kiro
Gligorov, to the Foreign Affairs Minister of the Kingdom of the
Netherlands, Hans van den Broek
Annex 118 President of the Applicant,Exposé at the Fifty-second Session of
the Assembly of the Republic of Macedonia (Skopje, 9 December
1992)
Annex 119 Intentionally blank
- 137 -Annex 120 Intentionally blank
Annex 121 Council of Europe, Committee of Ministers,506th Meeting of
the Ministers’Deputies (held in Strasbourg from 10 to 14 and 20
January 1994) (CM/Del/Act(94)506) (10 March 1994)
Annex 122 President of the Republic of Macedonia,Inaugural Address at
the Inauguration Ceremony at the Parliament of the Republic of
Macedonia (Skopje, 19 November 1994)
Annex 123 Statement made by the Respondent’s Prime Minister, Kostas
Karamanlis, during a foreign policy debate in Parliament,
Session of the Greek Parliament Held on 2 November 2006;
available from the web-page of the Respondent’s Parliament:
http://www.parliament.gr/ergasies/praktika/pdf/es02112006.pdf
Annex 124 Letter dated 28 January 2008 from the Respondent’sAmbassador
to the United States,Alexandros Mallias, to the Secretary-General
of the Organization of American States, José Miguel Insulza
Annex 125 Norwegian Ministry of ForeignAffairs, Meeting of NATO Foreign
Ministers – NATO Headquarters, Brussels, 6 March 2008 – The
Minister’s talking points for his address and remarks, official web-
page (uploaded 6 March 2008)
Annex 126 UnitedStatesMissiontoNATO T,estimonyofDanielFried,Assistant
Secretary of State for European and Eurasian Affairs, before the
SenateCommitteeonForeignRelations“NATO:Enlargementand
Effectiveness” (11 March 2008)
Annex 127 Ministry of ForeignAffairs of the Republic of Hungary, Hungary
supports further enlargement of the Atlantic Alliance at the next
week’s NATO Summit in Bucharest – Briefing by State Secretary
and Political Director Gábor Szentiványi for the members of the
Hungarian Parliament’s NATO Club,officialweb-page(uploaded
26 March 2008)
Annex 128 NATO,OfficialWeb-pageoftheBucharestSumm Kit,ynoteaddress
by Prime Minister Călin Popescu-Tăriceanu at the Bucharest
Conference “NATO: The Responsibility to Transform” (2 April
2008), available at:http://www.summitbucharest.ro/documente/
fisiere/en/Discurs_Premierul_Tariceanu_la_GMF_engleza.pdf
Annex 129 The Respondent, Aide Memoire
- 138 -Annex 130 TheApplicant,Republic of Macedonia. NATO and EU Candidate
Country
Annex 131 The Respondent, FYROM’s Name Issue and Propaganda: A
Response to Skopje’s Allegations
Annex 132 Letter dated 14 April 2008 from the Respondent’s Permanent
Representative to the United Nations, John Mourikis, to the
Permanent Representative of Costa Rica to the United Nations,
Jorge Urbina
Annex 133 Letter dated 19 May 2008 from twenty European and American
seniordiplomats,academicsandinternationalofficialstotheNATO
Secretary-General,Invitation to the Republic of Macedonia to join
NATO
Annex 134 Canadian Department of ForeignAffairs and International Trade,
Canada- Republic of Macedonia Relations, official web-page
(uploaded October 2008)
Annex 135 UnitedStatesCongressionalResearchService, TOEnlargement:
Albania, Croatia, and Possible Future Candidates (14 April
2009)
- 139 -
Memorial of the former Yugoslav Republic of Macedonia