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)
REPLY
VOLUME I
9 JUNE 2010VOLUME I TABLE OFCONTENTS
Page
CHAPTER I: INTRODUCTION ...................................................................7
Section I. Overview.........................................................................▯ ..........7
Section II.Structure of the Reply ..............................................................1
CHAPTER II: THE FACTAND BASIS OFTHE RESPONDENT’S
OBJECTION TO THEAPPLICANT’S NATO MEMBERSH.I ..............22
Introduction...............................................................................................2
Section I. The Respondent Objected to theApplicant’s Membership
in NATO Due to the Ongoing Difference Over theApplicant’s Nam .......24
Section II. TheApplicant is Referred to in NATO inAccordance
with Paragraph 2 of Resolution 817 and the Respondent’s Objection
to theApplicant’s NATO Membership in Bucharest Was Not Based
onAny Contrary Claim.........................................................................▯ ....4
Section III.The Respondent Seeks to Escape the Consequences
of its Objection by Misrepresenting NATO Decision-Making
onAccession...............................................................................................4
A. NATO’s Consensus-Based Decision-Making Procedures
Cannot and Do Not Shield the Respondent from the
Consequences of Its Objection ...........................................4...........4
B. Whether the Respondent’s Objection to theApplicant’s
NATO MembershipAmounted to a “Veto” Is Irreleva.n ..t...............49
Section IV. The Respondent Misrepresents theApplicant’s NATO
Membership as HavingAlways Been Predicated on Resolution
of the Difference Over theApplicant’s Nam.e ..................................1.........5
- 1 - A. The Respondent’s Refusal toAllow theApplicant toAccede to
NATO Membership Due to the Difference Over the Name Is the
Result of a Recent Strategy, Not a Criteria Imposed since 19.9 .....52
B. The Resolution of the Difference Over theApplicant’s Name
Did Not Constitute a pre-Bucharest NATOAccession Criterio ....55
Section V. Conclusions.........................................................................▯ ...6
CHAPTER III: THE COURT HAS JURISDICTIONAND THE
CLAIMSAREADMISSIBLE ..........................................................▯ ..........6
Introduction.........................................................................▯ ...................6
Section I. The Dispute Does Not Concern the Difference Referred
to inArticle 5(1) of the InterimAccord and Is Therefore Not Excluded
byArticle 21(2).........................................................................▯................6
Section II. Jurisdiction Is Not Excluded byArticle 22 of the
InterimAccord.........................................................................▯ .................7
Section III. The Dispute Relates to the Conduct of the Respondent,
Not the Conduct of NATO or its other Member ..s..............................7.......7
Section IV. Conclusion.........................................................................▯ ...7
CHAPTER IV: THE RESPONDENT’S OBJECTION BREACHED
ARTICLE 11(1) OFTHE INTERIMACCOR.D ...................................0......8
Introduction.........................................................................▯ ....................8
Section I. The Respondent Did “Object” to theApplicant’s Membership
in NATO within the Meaning of the First Clause ofArticle 11.(.1 ..)............82
A. The Obligation Not to “Object” EncompassesAny Conduct
that Opposes theApplicant’s Membership in an International
Organization.........................................................................▯ .........8
1. The Text ofArticle 11(1)........................................................3.8
2. The Object and Purpose ofArticle 11(1 ..)..........................6......8
- 2 - 3. The Negotiating History ofArticle 11(1.) ..........................9......8
B. The Respondent’s Conduct in Opposition to theApplicant’s
Effort to Join NATO Was an ‘Objection’Within the
Meaning ofArticle 11(1)...............................................................9
C. The ObjectionArose Solely From the Respondent’s Conduct,
Not the Conduct of NATO or other NATO Member Countri .......92
Section II. Since theApplicant Was Not to BR eeferred to in NATO
Differently than in Resolution 817, the Respondent’s Objection
Did Not Fall Within the Scope of the Second Clause ofArticle 11( ...).....95
A. Prior to the Institution of these Proceedings, the Respondent
Did Not Assert that its Objection Was Based on the Fact that
theApplicant Would Continue to Call Itself by its
Constitutional Name in its Dealings with NAT.O ......................7.....9
B. Resolution 817 Does Not Require theApplicant to Call
Itself ‘the formerYugoslav Republic of Macedoni.a ..’..............8.....9
C. The InterimAccord Does Not Require theApplicant to Call
Itself ‘the formerYugoslav Republic of Macedoni.a ..’............. 03..1
D. The Respondent’sAssertion that theApplicant Was Required to
Call Itself ‘the formerYugoslav Republic of Macedonia’Runs
Contrary to the Object and Purpose of the InterimAcco.r ...........109
E. The Fact that theApplicant Calls Itself by Its Constitutional
Name Does NotAssist the Responden ..t............................12.........1
Section III.Other ReasonsAdvanced by the Respondent for Its
Objection Do Not Fall Within the Scope of the Second Clause
ofArticle 11(1).........................................................................▯ ..............1
A. Article 11(1) Does Not Permit the Respondent to Object on
Grounds that the Difference Over theApplicant’s Name
Has Not Been Resolved........................................................3......1
B. Article 11(1) Does Not Permit the Respondent to Object so as
to “Correct” any “Balance of Interests” of the InterimAcco.r .....114
- 3 - C. Article 11(1) Does Not Permit the Respondent to Object
Due to GeneralAllegations of Lack of Good Neighborliness
or “Irredentism”..........................................................8..............▯ .1
Section IV: Conclusions.........................................................................▯1
CHAPTER V: THE RESPONDENT’S BREACH OFARTICLE 11(1)
CANNOT BE JUSTIFIED OR EXCUSED BASED ONARTICLE 22
OFTHE INTERIMACCORD OR ONAPRINCIPLE O EFXCEPTIO
NONADIMPLETI CONTRACTUS .............................................7..............1
Introduction.........................................................................▯ .................1
Section I. The Respondent Incorrectly InterpretsArticle 22 as
Addressing the Respondent’s Own Rights and Duti.e ..s...................30.......1
Section II. Even ifArticle 22Addresses Rights or Duties of the
Respondent,Article 22 Still Cannot Be Invoked to Justify the
Respondent’s Objection............................................................1............▯ .1
Section III.The Respondent Cannot Excuse Its Breach ofArticle 11(1)
on the Basis of a Principle oE fxceptio Non Adimplenti Contractu.s.........147
A. The Respondent Cannot Rely on thE exceptio........................47.....1
B. TheExceptioIs NotApplicable as a General Principle of La.w .....151
C. TheExceptioDoes NotAssist the Respondent under
the Law of Treaties.....................................................▯..4.............1
D. TheExceptioDoes NotAssist the Respondent under
the Law of State Responsibility .......................................9............1
E. The Obligations at Issue in the Respondent’s DefenceAre Not
‘Synallagmatic’or Directly Connected asQ auid pro Quo............163
F. The Respondent’sAllegations of Violations of the
InterimAccord by theApplicantAre Unfounde.d ..................65.....1
1. Alleged Breach ofArticle 5(1) ...................................8...........1
2. Alleged Breach ofArticle 6(2) ...................................1...........1
3. Alleged Breach ofArticle 7(1) ...................................3...........1
- 4 - 4. Alleged Breach ofArticle 7(2) ........................................6......1
5. Alleged Breach ofArticle 7(3) ........................................7......1
6. Alleged Breach ofArticle 11(1) ....................................... 8....1
G. The Respondent Has Failed to Follow Procedural
Requirements.........................................................................9 .....1
Section IV:Conclusions........................................................................0▯1
CHAPTER VI: THE RELIEFSOUGHTWOULD REMEDYTHE
SITUATION CONISTENTLYWITH THE COURT’S PRACTIC .......182
Introduction.........................................................................▯ .................1
Section I. The First Request..................................................................31
Section II. The Second Request................................................................9
Section III. The Reservation of Right.s..................................................1...2
SUBMISSIONS.........................................................................▯ .................1
CERTIFICATION.........................................................................▯ ............1
APPENDICES.........................................................................▯ ...................2
Appendix I:Selection of International PressArticles Reporting the
Respondent’s Objection to theApplicant’s Membership of NAT ............203
Appendix II:Selection of Statements made by the Respondent’s
Representatives Voicing Its Opposition to theApplicant’s Membership
of the European Union until Such Time as the Name Difference
Is Resolved to Its Satisfaction .........................................................5........2
Appendix III:The Respondent’s ‘Red Line’Position in the
Negotiations Over the Name ...........................................................▯........2
LIST OFANNEXES.........................................................................▯ ...........
- 5 -- 6 - CHAPTER I
INTRODUCTION
Section I: Overview
1.1. TheApplicantinstitutedtheseproceedingsbeforetheInternationalCourt
of Justice (“the Court”) on 17 November 2008. In accordance with an Order of
the Court, theApplicant filed its Memorial on 20 July 2009, and the Respondent
filed its Counter-Memorial on 19 January 2010. By Order dated 12 March 2010,
the Court authorized the submission of a Reply by theApplicant and a Rejoinder
by the Respondent, and fixed 9 June 2010 as the time limit for the filing of the
Reply. This Reply is submitted in accordance with that Order, together with
accompanyingAppendices andAnnexes.
1.2. TheApplicanthasfollowedthedispositionsoftheCourtinusingitsReply
forthepurposesofrespondingtofactualclaimsandlegalargumentsmadebythe
Respondent in its Counter-Memorial. For the avoidance of doubt, theApplicant
maintains the totality of the factual claims and legal arguments, as set out in
its Application and Memorial. As explained below and later in this Reply, the
Respondent has sought to recast the facts of the dispute in order to address a case
that theApplicant has not filed. In this respect the Respondent has raised issues,
for example in relation to the conduct of the NorthAtlantic Treaty Organization
(“NATO”), that are not relevant to this dispute and which do not need to be
addressed by the Court. TheApplicant will not deal with such matters in detail,
other than to explain why they are not within the scope of this dispute.▯
1.3. In this regard it is pertinent to recall why the Applicant brought these
proceedings to the Court. This was set out in the Introduction to the Memorial,
at paragraph 1.1, which explained that this case has been brought:
- 7 - “to hold the Respondent to the obligation it undertook under Article
11 of the Interim Accord, which it violated through its objection to
the Applicant’s membership of the North Atlantic Treaty Organization
(NATO). The Respondent’s objection prevented the Applicant from
receiving an invitation to proceed with membership of NATO. The case
is being brought to ensure that theApplicant can continue to exercise its
rightsasanindependentStateactinginaccordancewithitsrightsunderthe
InterimAccord and under international law, including the right to pursue
membership of NATO and other international organizations.”
1.4. Despitethisclearstatement,anddespitetheclarityoftheargumentsmade
by the Applicant in its Memorial which do not address in any way any acts of
NATOorofotherNATOMemberCountries,itisapparentthattheRespondenthas
soughttotransformthecaseintoonethatimpleadsNATOanditsothermembers
generally.Thereasonforthisisclear:sincetheRespondentisunabletojustifyin
law its own actions, it seeks to transform the case into one that it is not, and then
apply the law to that other case. The Court will note that a common theme runs
throughout the Counter-Memorial, touching on issues of jurisdiction, the merits
and even the relief sought: the Respondent seeks to rewrite the case.
1.5. In order to do this the Respondent has difficulty in coming to grips
with observable facts that one would have thought could not be challenged.
This is particularly evident when it comes to the Respondent’s treatment of
contemporaneous statements by its own Prime Minister and Foreign Minister
explaining the reason for its objection to the Applicant being invited to accede
to NATO at the NATO summit, held in Bucharest on 2 to 4 April 2008 (“the
Bucharest Summit”). These statements, set out in the Applicant’s Memorial,
includepublicstatements:bytheRespondent’sForeignMinisterthat“[a]slongas
thereisno…solution[tothenameissue],therewillbeaninsurmountableobstacle
to FYROM’s Euroatlantic ambitions” (6 March 2008); by the Respondent’s
1
See Memorial, para. 2.60, citing the Respondent’s Foreign Minister, Dora Bakoyannis,
“NATO Enlargement and Alliance Principles”,Atlantic-community.org (uploaded7March
2008): Memorial, Annex 83. The Applicant’s quotation of texts using the acronym ‘FYROM’ in
no way represents an acceptance of the use of the term. The use of the acronym ‘FYROM’ by the
- 8 -Prime Minister that “[w]ithout a mutually acceptable solution to the name issue,
there can be no invitation to participate in the [NATO] alliance” (22 March
2008); and again by the Respondent’s Foreign Minister that it would continue
to object to NATO “so long as [theApplicant’s] leaders refuse to settle the issue
3
of its name” (31 March 2008).These and many other statements have now been
abandoned by the Respondent as it seeks to rewrite its own case. In one of the
more remarkable passages of the Counter-Memorial, the Respondent seeks to
distance itself from these statements, on the grounds that they were “unilateral”,
that they did not express an intention to be bound, that they had “no legal effect
insofar as the decision in Bucharest is concerned”, and that “[t]hey were not an
attempt accurately to describe Greece’s conduct in terms of NATO processes”. 4
1.6. TheRespondentmissesthepoint:thestatementsprovideanauthoritative,
contemporaneous confirmation of both the fact of and the true motivation for
the Respondent’s objection. As the Court noted in the Case concerning Armed
Activities on the Territory of the Congo:
“it will prefer contemporaneous evidence from persons with direct
knowledge. It will give particular attention to reliable evidence
acknowledging facts or conduct unfavourable to the State represented
by the person making them (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits,
5
Judgment, I.C.J. Reports 1986, p. 41. para. 64).”
Respondent does not conform to Article 1(1) of the Interim Accord (whereunder the Respondent
recognised the Applicant “as an independent sovereign state, under the provisional designation”),
or to the regime set out in Part B of the Memorandum on “Practical Measures” of 13 October
1995:Memorial,Annex3.SeefurtherN : oteverbaledated26October2009fromtheApplicant’s
Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje, No. 32-8031/1: Reply,
Annex 42.
2 Memorial, para. 2.60, citing the Respondent’s Prime Minister, Kostas Karamanlis:
“Premier dangles FYROM veto”, Kathimerini (23 February 2008): Memorial, Annex 80.
3 See note 1, supra.
4 Counter-Memorial, paras. 5.54-5.55.
5
Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), Judgment of 19 December 200 ,5at para. 61.
- 9 -1.7. These and other statements are “contemporaneous”, they come from
highrankingpersons“withdirectknowledge”,andthey“acknowledg[e]factsor
conductunfavourable”totheRespondent,bydemonstratingthattheRespondent
did object to the Applicant’s membership of NATO and by explaining the true
motivationfortheRespondent’sobjection.TheApplicantnotesthatintheperiod
betweenthesestatementsbeingmadeandthepreparationoftheCounter-Memorial,
the Respondent’s Government, Prime Minister and Foreign Minister have all
changed,butthisdoesnotaltertheRespondent’sresponsibilityfortheactsofthe
previousGovernment.Thisisallthemoresowherethesameargumentsarebeing
advanced by the current Government in relation to theApplicant’s membership
6
of both NATO and the European Union.
1.8. Conversely,throughoutitsCounter-MemorialtheRespondentintroduces
factsthatareofnorelevancetothedispute;thisisparticularlyevidentinChapter
1 (“Introduction”), Chapter 2 (“The ‘Name Issue’”), Chapter 4 (“FYROM’s
Violations of the Interim Accord”) and Chapter 5 (“NATO’s Decision on the
FYROM’s Membership”), which can only be understood as an effort to rewrite
the case by introducing issues that are not relevant to the Court’s decision. Four
examplesfromtheopeningfiveparagraphs–andtherearemanymorethroughout
the Counter-Memorial – are sufficient to illustrate the manner in which the
Respondent plays fast and loose with the case put by theApplicant:
(1) TheRespondentallegesthattheApplicant“callsontheCourttodecide
thatitwasonlytheconductofGreecethatcausedNATOnottoinvitethe
7
FYROMtoaccede”: thisiswrong,asnowhereintheMemorialdoesthe
ApplicantinvitetheCourttoexpressanyviewastotheconductofanyother
NATOmembers–thecaseisonlyabouttheconductoftheRespond t.en
(2) The Respondent asserts that theApplicant’s case “implies the Court’s
makingfactualandlegalfindingsastotheinternalaffairsofinternational
organizations to an unprecedented extent”: 8this too is wrong, as the
6 Examples of such statements are included in Appendices I and II to this Reply.
7 Counter-Memorial, para. 1.2.
8
Counter-Memorial, para. 1.3.
- 10 - case only requires the Court to make findings of fact and law on the
Respondent’s objection and not any “internal affairs” of NATO.
(3) The Respondent argues that “[a]t the core of the dispute between the
9
Parties is the ‘name issue’”: wrong again, as the dispute before the
Court does not require the Court to resolve the difference over the
Applicant’s name or to express any views on that matter.
(4) The Respondent asserts that the Applicant “asks the Court to look
behind the decision of NATO taken at Bucharest”; 10 doubly wrong,
since the Applicant has asked no such thing and the Court is not
required to express any view as to NATO’s decision.
1.9. The Applicant is confident that the Court will engage in a rigorous
assessment of the facts and arguments as they have been made. In the meantime
it invites the Court to treat with caution each and every assertion of fact that is
made by the Respondent. The Applicant regrets having to raise this issue with
the Court, but it is made necessary by the Respondent’s erroneous presentation
of facts in its case. For example, the Respondent implies (at paragraph 4.62,
and footnotes 108, 112 and 156 of its Counter-Memorial) that the United States
HouseofRepresentativesandtheUnitedStatesSenaa tdoptedresolutionsfinding
that theApplicant had acted in contradiction to its obligations under the Interim
Accord. The Respondent also submitted the text of the resolutions purportedly
adopted by those bodies (Counter-MemorialAnnexes 156-157). In fact, no such
resolutionwasadoptedbyeithertheUnitedStatesHouseofRepresentativesorthe
United States Senate.The text appearing atAnnex 156 of the Counter-Memorial
(H. Res. 356) was introduced on 1 May 2007 in the United States House of
RepresentativesbycertainRepresentativesandreferredtotheHouseCommittee
on ForeignAffairs, which thereafter took no action whatsoever on the proposed
resolution.ThetextappearingatAnnex157oftheCounter-Memorial(S.Res.300)
was introduced on3August 2007 in the United States Senate by certain Senators
and was referred to the Senate Foreign Relations Committee, which thereafter
9 Counter-Memorial, para. 1.4.
10
Counter-Memorial, para. 1.4.
- 11 -took no action whatsoever on the proposed resolution. Neither resolution was
reported out of committee and neither resolution was voted on by the respective
bodies, let alone adopted. Misleading factual representations of this kind to the
CourtarewhollyinappropriateandrequiretheCourttoproceedwithgreatcaution.
1.10. Equally troubling is the Respondent’s repeated redaction of quotations
in a selective and highly misleading manner. At paragraph 5.50 of the Counter-
Memorial, for example, the Respondent quotes a NATO spokesperson as stating
that there is “aunanimous view within the Alliance that the FYROM should as
soonaspossiblebeofferedtheopportunityinaccessiontalks[…]Butthegeneral
consensus,andthatincludestheconsensusoftheGreekgovernmentistheywish
to see all three MAP countries join the Alliance as quickly as possible once the
necessary conditions are in place. And in this case that means resolution of the
nameissue.”Intheplaceindicatedbysquarebrackets,theRespondentleavesout
thefollowingwords,thatindicatethat,contrarytotheimpressionofunanimityand
consensuscreatedbytheselectivequotation,itw tasRespondentthatpreventedthe
ApplicantbeinginvitedtoaccedetoNATOmembershipattheBucharestSummit:
“But well there’s no secret, the Greek delegation made it very clear that until the
12
name issue is resolved, it has not yet been resolved, that will not be possible”.
1.11. A second example is even more egregious. At paragraph 5.38 of the
Counter-Memorial the Respondent quotes NATO Secretary-General, Mr Jaap
de Hoop Scheffer, as follows:
“Euro-Atlantic integration of course also demands and requires good
neighbourly relations and it is crystal clear that there were a lot of pleas
from around the table to find a solution to the name issue ... I would not
11 Insofar as the Respondent purports to suggest at footnote 112 of its Counter-Memorial that
Resolution 521(2005) was adopted by the United States House of Representatives, that too is
wrong. The text appearing at Annex 154 of the Counter-Memorial (H. Res. 521) was introduced
on 27 October 2005 in the United States House of Representatives by certain Representatives
and referred to the House Committee on International Relations, which thereafter took no action
whatsoever on the proposed resolution.
12 PressConferencebyNATOSecretaryGeneralfollowingtheNorthAtlanticCouncilSummit
meeting, 3 April 2008: Counter-Memorial, Annex 31.
- 12 - giveyouacompletereportifIwouldnotsayreferringtothecommuniqué
by the way of the NATO Foreign Ministers last December where there is
this line on good neighbourly relations and the name issue.”
1.12. The Respondent uses the quotation in support of its argument that “there
canbenodoubtthatNATOconsideredtheresolutionoftheoutstandingnameissue
tobea‘performance-basedstandard’”,claimingthatthenameissuewasaNATO
matter.Yet the true position is exactly the opposite: the Respondent has removed
key words spoken by the NATO Secretary-General, as here set out in italics:
“asolutiontothenameissue whichisnotaNATOaffair.ThisisMr.Nimetz,
AmbassadorNimetz,undertheUNroof.ThisisnotaNATOaffair,NATO
responsibility.”14
1.13. This makes clear that the resolution of the name issue was not a NATO
matter.
1.14. The Applicant also regrets the need to invite the Court to treat the
Respondent’s treatment of legal authorities with caution. It is an unfortunate
feature of the Respondent’s legal argument that it sometimes invokes authorities
in a manner that does not accurately reflect their views. This is the case, for
example, in its treatment of the authorities it invokes in relation to theexceptio
non adimpleti contractus. Thus, in paragraph 8.14 of its Counter-Memorial, the
Respondent’sdraftingleavesthereaderwiththeimpressionthatoneInternational
LawCommission(“ILC”)SpecialRapporteuronStateResponsibility“endorsed”
an approach taken by an earlier ILC Special Rapporteur on State Responsibility,
whereas a careful reading of the relevant texts shows that this was not the case
at all. More to the point, the Respondent’s account of the negotiating history of
texts such as the ILC Articles on State Responsibility leaves the reader with an
erroneous impression: the reader of Chapter 8 of the Counter-Memorial would
13
Counter-Memorial, para. 5.39.
14 Joint Press Point with NATO Secretary-General Jaap de Hoop Scheffer and the Prime
Minister of the former Yugoslav Republic of Macedonia, Nikola Gruei3 January 2008:
Counter-Memorial, Annex 26, page 1.
- 13 -not appreciate that the ILC expressly rejected the argument as to theexceptiofor
which the Respondent contends. The Applicant has set out an accurate account
of this issue in Chapter V of this Reply.
1.15. The same point may be made in relation to the citation of academic
authorities. At paragraph 8.11 of the Counter-Memorial, for example, the
RespondentreferstothewritingsofDrLaly-Chevalierinsupportofitsargument
on theexceptio non adimpleti contractus, giving the impression that this author
generally argues in favour of the existence of the exceptio as a general principle
oflaw.Yetthisisnotherview.ThepassagequotedbytheRespondentatfootnote
424 of the Counter-Memorial is merely the exposition by Dr Laly-Chevalier of
the views of authors who defend the idea of the “survival” of the exceptio, but in
theverynextparagraphofthisauthor’swork–thatisnotcitedbytheRespondent
– she rejects the argument relied upon by the Respondent. Numerous other
examples of misleading citation are set out in Chapter V of this Reply.
1.16. OncetheRespondent’sargumentsarestrippeddowntotheirbareessentials
it becomes apparent that there are important points of convergence or agreement
betweentheParties.Forexample,theRespondent’sobjectionstojurisdictionare
more properly treated as issues of interpretation for the merits.The Parties are in
accordthatatnotimepriorto3April2008didtheRespondentformallyinformthe
ApplicantinwritingthattheRespondentconsideredtheApplicanttobeinmaterial
breach of the Interim Accord, or that any acts or omissions of the Applicant
15 SeeDrC.Laly-ChevalierL , aviolationdutraité (Bruylant, 2005) at p. 424: “Pour généreuses
qu’elles soient à l’égard de l’entité lésée, ces vues ne cadrent pas avec les travaux préparatoires
des Conventions de Vienne sur le droit des traités et ne semblent donc pas devoir emporter la
conviction. Les rédacteurs ont en effet entendu limiter strictement le recours tant à l’extinction
du traité qu’à la suspension de l’application de ce dernier, afin d’assurer la stabilité des relations
conventionnelles.C’estparconséquentdélibérémentquelesConventionsdeVienne,déclaratoires
du droit coutumier à cet égard, ne prévoient pas de ripostes qui se situeraient en deçà de la
suspension d’application du traité” [emphasis added]. She concludes: “En dernière analyse,
la thèse d’E. Zoller n’est acceptable que si l’on sort du cadre du droit des traités et que l’on
envisagelaréciprocitéentantquespecificrepris,l’est-à-direentantquemesuredesuspension
de la disposition conventionnelle strictement correspondante à l’obligation violée et relevant
exclusivement du droit de la responsabAilicteé.tître, la non-exécution par mesure de réciprocité
peuteffectivementêtredécidéepourrépondreàuneviolationmineuredutraitéetentouslescas,
échapper aux règles de l’article 65 CV.Mais la finalité de la mesure n’est, alors, plus la meme”:
ibid., at p. 424.
- 14 -were of a nature to justify harsh consequences in accordance with the rules and
procedures of international law. The Respondent has not invoked suspension or
terminationoftheInterimAccordinaccordancewithArticle60ofthe1969Vienna
Convention on the Law of Treaties (both the Applicant and the Respondent are
parties to the Vienna Convention and have relied upon the Vienna Convention’s
16
rulesontreatyinterpretationintheirpleadingstothisCou)r.tAndtheRespondent
has not invoked the right to take lawful countermeasures, in accordance with the
scheme reflected in the ILCArticles on State Responsibility.
1.17. These are important points of convergence that go far in narrowing the
real issues on which the Court should focus.At the heart of this case are two key
issues of fact:
(1) Did the Respondent object to theApplicant being invited to become
a NATO member at the Bucharest Summit, in circumstances where
the Applicant was not to be referred to in NATO “differently than
in paragraph 2 of United Nations Security Council resolution 817
(1993)”?
(2) Did the Respondent object to the Applicant’s NATO membership
because it was to be referred to in NATO by something other than
the provisional reference, the solitary circumstance in which the
Respondent was entitled to object under the InterimAccord?
1.18. On the basis of the evidence that both Parties have put before the Court,
it is clear that the Respondent’s case is in real difficulty. It has put before the
Court no evidence that challenges theApplicant’s assertion that the Respondent
objected to the Applicant’s NATO membership in March and April 2008, prior
to and distinctly from the NATO Bucharest decision, in circumstances where
the Applicant was to be referred to in NATO no differently than in resolution
817. Itspost facto assertion that theApplicant was not to be referred to in NATO
under the provisional reference – on the basis that the Applicant calls itself by
its constitutional name – is unsupported by the evidence before the Court, and is
16 Memorial, para. 5.7 and Counter-Memorial, paras. 6.55, 7.27 and 7.84.
- 15 -contradicted by Mr Matthew Nimetz, the Special Envoy of the United States to
the name negotiations at the time of the conclusion of the Interim Accord, who
expresses an independent and authoritative view. The Applicant has put no
evidence before the Court that is contemporaneous to its objection to challenge
the conclusion that the real reason for the objection was as stated by its Prime
Minister and Foreign Minister, namely to force a resolution of the difference
over the name on the Respondent’s terms. And it is readily apparent that the
reason does not conform to the sole reservation of right set forth in the second
clause ofArticle 11(1). This case does not implicate NATO or its other Member
Countries in any way. It is not about the conditions of membership of NATO,
or about the actions of the organization or of any third States. It is not about the
historic circumstances that have given rise to the difference over theApplicant’s
name, or about the conduct of negotiations between the Parties.
1.19. Thisisacaseinwhichthefactsdominate,andinwhichtheapplicationof
the law becomes clear once the facts are established.The Respondent appears to
recognise this, abandoning any effort to make classical arguments (based on the
1969ViennaConventionontheLawofTreatiesandthelawofStateresponsibility)
and embracing instead arguments that are novel (in relation to the exceptio) or
based on unpersuasive interpretations of the Interim Accord that seek to fetter
the rights of theApplicant concerning its own use of its constitutional name (the
argument made as to the meaning ofArticle 11(1)) and that would renderArticle
11meaningless(theargumentmadeinrelationtoArticle22oftheInterimAccord).
1.20. In dealing with this case, the facts are paramount, and it is important to
deal with the facts as they were in the spring of 2008, not as the Respondent
has since sought to recast them or re-present them. The Court should discount
the Respondent’s actions taken after its objection and only after the Applicant
asserted that the Respondent’s objection gave rise to a material breach of the
Interim Accord. The Respondent’s later actions, including those that made new
legalandfactualargumentsonlyaftertheApplicationwasfiled,areaself-serving
effort to bolster a weak case.
17 See further para. 2.30 below.
- 16 - Section II: Structure of the Reply
1.21. In general this Reply follows the structure adopted in the Applicant’s
Memorial,andisdividedintosixChapters.FollowingthisIntroductioC n,hapter
II revisits the facts of the dispute that is actually before the Court, not the
alleged “dispute” that the Respondent might wish to have before the Court,
in order to correct the factual misrepresentations advanced by the Respondent
in its Counter-Memorial. It is dividedinto five sections, plus an introduction.
Section Iestablishes the unequivocal fact of the Respondent’s objection to the
Applicant being invited to join NATO at the Bucharest Summit, and the reason
advanced contemporaneously by the Respondent for that objection, namely the
non-resolution of the difference concerning the Applicant’s nameS . ection II
demonstrates that, contrary to the Respondent’s recent and novel assertions,
the Applicantis not, as a matter of fact,referred to in NATO differently than
in paragraph 2 of United Nations Security Council resolution 817 (“resolution
817”), and would not be referred to differently as a NATO member, pending
resolution of the difference concerning theApplicant’s name. It also establishes
thattheRespondent’sobjectiontotheApplicant’smembershipofNATOwasnot
based on the claim that it would be referred to differently than in paragraph 2 of
resolution 817.Sections IIIandIV respond to the factual misrepresentations in
theRespondent’sCounter-MemorialconcerningNATOprocessesandthebilateral
difference concerning the Applicant’s name in the NATO context .ection III
makesclearthatNATO’sconsensus-baseddecision-makingproceduresdonotact
to shield the Respondent from the consequences of its objection. It also responds
to the Respondent’s argument that the lack of a formal veto procedure within
NATO somehow shields it from its breach ofArticle 11(1): it does not. Whether
the Respondent’s objection amounts to a formal veto is entirely irrelevant to the
current proceedings, which are based on the fact of the Respondent’ sbjection
to theApplicant’s NATO membershipS . ection IVresponds to the Respondent’s
erroneous assertion that the Applicant’s NATO membership had always been
predicated on the resolution of the difference concerning the Applicant’s name.
Lastly, Section V presents the conclusions to the Chapter.
- 17 -1.22. ChapterIIIconfirmsthattheCourthasjurisdictionoverthedisputebefore
it, and that there are no grounds of inadmissibility. The Parties agree that there
can be no objections to jurisdiction based on Article 21(2) of the 1995 Interim
Accord or Article 36(1) of the Statute of the Court. The Applicant submits that
the three jurisdictional arguments put forward by the Respondent in Chapter 6
of the Counter-Memorial are such that they confirm that the Court’s jurisdiction
is clearly established. Following an introductory section,ection I responds to
the Respondent’s contorted argument that the dispute before the Court actually
concerns the difference referred to inArticle 5(1) of the InterimAccord, so that
jurisdiction is excluded by Article 21(2); but the dispute before the Court does
not require it to resolve the difference over the Applicant’s name referred to
in Article 5(1), or express any view on that matterS. ection II responds to the
argument that jurisdiction is excluded by operation ofArticle 22; that provision
has nothing to say about jurisdiction, and the Respondent has misunderstood the
distinctionbetweenajurisdictionalobjectionandanissueoftreatyinterpretation
of the Interim Accord.Section III responds to the Respondent’s claim that the
dispute actually relates to the conduct of NATO and its members. The argument
is based on a misreading of the Applicant’s case, an erroneous appreciation of
the facts and fundamental misconceptions of law and factS.ection IVconcludes
the Chapter.
1.23. Chapter IV returns to the issues relating to the law that is applicable to
theresolutionofthisdispute,namelytheobligationssetforthinthe1995Interim
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. After
an introductory section,Section Iresponds to the Respondent’s legal argument
that its opposition to the Applicant’s NATO membership did not constitute an
‘objection’inbreachofArticle11(1);theResponded nitdasamatteroflaw“object
to” theApplicant’s NATO membershipS . ection IIresponds to the Respondent’s
novel claim that its objection was justified on the basis that the Applicant calls
itself byitsconstitutionalname;itwasnot. PriortothereceiptoftheApplicant’s
Memorial in this case, the Respondent had never claimed that it had objected to
theApplicant’sNATOmembershiponthatbasiS s.ectionIIIconsidersthevarious
- 18 -alternativejustificationsthattheRespondenthasadvancedforitsobjection,either
contemporaneouslytotheBucharestSummitorthereafter.Eachofthesereasons
demonstrably falls outside the scope of the second clause of Article 11(1) and,
as such, confirms the fact of the Respondent’s breachS .ection IVsets out the
conclusions to the Chapter.
1.24. Chapter V of the Reply responds to the Respondent’s arguments by
which it seeks to avoid responsibility for its unlawful actions. The Respondent
has recognized the force of the Applicant’s argument in the Memorial that the
Respondent cannot meet the conditions to be able either to invoke Article 60
of the 1969 Vienna Convention to justify a response to alleged breaches by
the Applicant that it now characterizes as “material”, or to justify its actions as
lawful countermeasures under the law of State responsibility. Instead it raises
two novel and unpersuasive arguments. The first is thatArticle 22 of the Interim
AccordpreservesfortheRespondenta“right”or“duty”undertheNorthAtlantic
TreatytoobjecttotheApplicant’smembershipinNATO,anargumentthatwould
have the effect of deprivingArticle 11(1) – and indeed the totality of the Interim
Accord–ofanypracticalmeaningorpurpose.Followinganintroductorysection,
Section Iof this Chapter demonstrates thatArticle 22 is not intended to address
therightsordutiesoftheRespondentS .ectionIIdemonstratesthatevenifArticle
22does concern the Respondent’s rights and duties under other agreements, it is
nothing more than a statement of fact that cannot transform obligations arising
under other articles of the Interim Accord, and certainly cannot be interpreted
andappliedinamannerthatwoulddenudeArticle11(1)ofanyrelevance. Italso
demonstrates that even ifArticle 22were capable of evisceratingArticle 11(1) in
some circumstances where the Respondent has a right or duty at an organization
in relation to the admission of new members, the Respondent has not identified
any “right” or “duty” under the North Atlantic Treaty that would require the
Respondent to object to theApplicant’s membership.Section III addresses the
Respondent’s second argument, which asserts that the “exceptio inadimpleti non
est adimplendum” entitles the Respondent to react to the Applicant’s alleged
failure to comply with miscellaneous obligations under the Interim Accord, by
not complying with its own obligation underArticle 11(1). The section explains
- 19 -that no general defence of theexceptiocan justify the breach of Article 11(1),
that the exceptio is not part of the law of treaties except in form articulated in
Article 60 of the 1969 Vienna Convention, and that the exceptio does not form
part of the law of State responsibility as contended by the Respondent. It also
establishesthattheentirefactualbasisfortheRespondent’spurportedrecourseto
theexceptioisbaseless:theobligationstheRespondentidentifiesasreciprocalor
“synallagmatic”arenotso,andtheApplicantisnotinbreachofitsobligationsunder
the Interim Accord. Lastly,Section IVpresents the conclusions to the Chapter.
1.25. Chapter VIof the Reply returns to the two forms of relief sought by the
Applicant in the Memorial.After an introductory section, theApplicant explains
in Section I why the Respondent’s arguments against a declaration in the terms
sought by the Applicant are without merit: the Court has jurisdiction over the
merits, the Respondent has breached its obligation under Article 11(1), there
is no defence to that violation, and the relief sought would be effective and
fully compatible with the Court’s judicial function. Section II the Applicant
addresses the arguments against the second head of relief that would order the
Respondent to restore thestatus quo anteand refrain from further violations of
Article 11(1). The Respondent’s three objections lack any legal or factual basis:
the requested order corresponds with the requirements ofArticle 11(1), the order
sought is not directed against NATO and would be effective in preventing future
unlawfulobjectionsbytheRespondent,andwouldnotamounttoanendorsement
ofanyalleged“violations”bytheApplicant.IS nectionIIItheApplicantresponds
to the Respondent’s ill-founded argument that theApplicant has somehow erred
in seeking to reserve its rights to modify the grounds invoked and/or the relief
sought.
1.26. ThisReplyalsoincludesthreeAppendices,whichrespondtoissuesraised
by the Respondent in its Counter-Memorial.AppendixiIncludes a selection of
oversixtypressarticlesfromtheglobalmedia,providingoverwhelmingevidence
of the Respondent’s threatened and actual objection to the Applicant’s NATO
membership, and the reasons provided contemporaneously by the Respondent
forit.TheseareintroducedtocountertheRespondent’sassertionthatitplayedno
- 20 -independentorautonomousroleinobjectingtotheApplicant’sNATOmembership
or that its objection was based on reasons other than the non-resolution of the
differenceovertheApplicant’snameA . ppendixIIrespondstotheRespondent’s
suggestionthattheApplicant’sconcernsregardingtheRespondent’sobjectionto
its membership of the European Union are hypothetical. It sets out a number of
quotations by the Respondent’s representatives clearly indicating its intention to
objectand/orthefactofthatobjectioninthecontextoftheApplicant’sEuropean
UnionmembershipprocessA . ppendixIIIrespondstotheRespondent’sallegations
againsttheApplicantofunilateral“intransigence”inthenegotiationsconcerning
the Applicant’s name. It sets out extracts from statements by the Respondent’s
representatives concerning its “non negotiable” “red line” position in relation to
the name negotiations.
1.27. The Reply also includes a further Annex, which sets out additional
documents dividedintothefollowingcategories:(i)documentsrelatingtoNATO,
(ii)documentsrelatingtotheUnitedNations,(iii)diplomaticcorrespondenceand
documents, (iv) other documents, and (v) press articles and statement▯ s.
- 21 - CHAPTER II
THE FACTAND BASIS OFTHE RESPONDENT’S OBJECTION TO
THEAPPLICANT’S NATO MEMBERSHIP
Introduction
2.1. The Respondent seeks to deny in its Counter-Memorial that it objected
to an invitation being extended to the Applicant to join NATO at the Bucharest
Summit, in circumstances where theApplicant was to be referred to in NATO no
“differentlythaninparagraph2ofUnitedNationsSecurityCouncilresolution817
(1993)”. In order to do so, the Respondent makes the following assertions. First,
it claims that it did not object to theApplicant’s NATO membership and that its
sustainedandaggressiveoppositiontotheApplicant’smembershiphadnobearing
on the subsequent decision by NATO not to extend a membership invitation to
theApplicantattheBucharestSummit.Inmakingthisargument,theRespondent
reliesinter alia on a mischaracterization of NATO decision-making processes as
18
providing for “no mechanism of objection”. Secondly, the Respondent appears
to assert that the Applicantwas in fact referred to in NATO differently than in
resolution817,andwouldhavecontinuedtobereferredtodifferentlyonadmission
19
tomembership. Third,theRespondentcontendsthatresolutionofthedifference
overtheApplicant’snamewasaNATOmembershipcriterion,whichhadalways
been established by NATO, and understood by the Applicant, as a condition
20
precedent for theApplicant to be invited to become a member of theAlliance.
In so contending, the Respondent relies on misquotations and distortions of
statements made by NATO representatives.As this Chapter demonstrates, all of
these assertions made by the Respondent are wrong.
18 Counter-Memorial, para. 1.6.
19
Counter-Memorial, para. 7.104.
20 Counter-Memorial, paras. 5.38 to 5.47.
- 22 -2.2. Contrary to the Respondent’s assertions, the historical record, comprised
inter alia of official communiqués from and statements by the Respondent’s
representatives, by NATO and by representatives of other NATO Member
Countries, unequivocally demonstrates the following. First, the Respondedtid
object, individually and autonomously, to the Applicant being invited to join
NATOattheBucharestSummit.Second,thatobjectionwasmadeincircumstances
where theApplicant was referred, was to continue to be referred, and had agreed
tobereferredtoinNATOinthemannerprovidedforinparagraph2ofresolution
817. Third, the Respondent’s objection was based on the non-resolution of the
difference over the Applicant’s name, and not on any contemporaneous claim
that the Applicant was to be referred to in NATO differently than in paragraph
2 of resolution 817; rather, the latter claim has now been put forward by the
RespondentinitsCounter-Memorialinae nxpostfactoattempttojustifyitsbreach
ofArticle 11(1).An analysis of NATO documentation and statements by NATO
representatives also makes clear that NATO processes, misrepresented by the
Respondent in its Counter-Memorial, cannot and do not assist the Respondent in
avoidingtheconsequencesofitsobjectiontotheApplicant’sNATOmembership
at Bucharest.
2.3. In responding to the Respondent’s erroneous assertions of fact, the
ApplicanthasstructuredthisChapterinthefollowingway .ectionIsetsoutthe
incontrovertiblefactoftheRespondent’sobjection,whichcrystallizedonorabout
3April 2008 on the occasion of the NATO Bucharest Summit. It also establishes
that the reason given by the Respondent contemporaneously for its objection
was the non-resolution of the difference over the Applicant’s namS.ection II
demonstrates that the Applicant was referred to in NATO no differently than in
resolution817,andthatitwouldcontinuetobesoreferredasaNATOmember.It
also establishes that the Respondent did not object to theApplicant being invited
to join NATO at the Bucharest Summit on the ill-founded basis it now seeks to
advance,namelythattheApplicantwasnotreferredto(orwouldnotbereferredto
inthefuture)inNATOinconformitywithparagraph2ofresolution81 S7e.ctions
IIIandIVrespondtothekeymisrepresentationsandinaccuraciesintheCounter-
Memorial concerning NATO and the Applicant’s engagement therewith, which
- 23 -the Respondent purports to rely on.Section IIIexplains the consensus-based
decision-making procedure within NATO, which preserves the sovereignty and
responsibilityofNATOMemberCountriesinrelationtotheiractionswithinNATO.
Lastly,Section IVestablishes that, prior to the Bucharest Summit, resolution of
the difference over the Applicant’s name had never been identified by NATO
as a condition-precedent for the Applicant’s accession to the Alliance, and had
not been recognized or accepted as such by other NATO Member Countries.
Section I. The Respondent Objected to theApplicant’s Membership in
NATO Due to the Ongoing Difference Over theApplicant’s Name
2.4. The Respondent asserts in its Counter-Memorial that “Greece had no
individual or autonomous role to play in NATO’s decision”not to invite the
ApplicanttoaccedetoNATOmembershipattheBucharestSummit,andthat“the
decision to delay the FYROM’s accession to NATO is the common decision of
the Members [sic] States with which Greece agrees but which is not the result of
its opposition.” Given the extent of the evidence, including statements by the
Respondent’s officials, by NATO representatives and by representatives from
other NATO Member Countries, describing the Respondent’s opposition to the
Applicant’s NATO membership, its intention to object to its candidacy and the
fact of that objection at Bucharest, as set out in Chapter II of the Applicant’s
Memorial,Appendix I, and in the following paragraphs, the above assertions are
unsustainable and manifestly untrue.
2.5. Contrary to the Respondent’s denials, the Respondent did object,
individually and autonomously, to the Applicant being invited to join NATO at
the Bucharest Summit under the provisional reference of ‘the former Yugoslav
RepublicofMacedonia’;thebasisofitsobjectionwastheongoingdifferenceover
the Applicant’s name; and that objection had a direct bearing on the Alliance’s
decision not to extend a membership invitation to the Applicant in April 2008.
21 Counter-Memorial, para. 6.74.
22
Ibid.
- 24 -TheRespondent’sobjectionprecededtheNATOBucharestSummitdecisionand
was juridically distinct from any action by NATO. Contemporaneous official
pronouncements by the Respondent’s representatives make this absolutely clear,
andcontradictitscurrent,self-servingstance.Thus,on10April2008,justaweek
after the Bucharest Summit, Ms Dora Bakoyannis, the Respondent’s Foreign
Minister, speaking in Parliament, described the Respondent’s independent and
autonomousobjectionandtheeffectofthatobjectionontheApplicant’scandidacy:
“The wording used by the Prime Minister here at the Greek Parliament
has become the wording of the Allies.It has been adopted word for word
in NATO’s conclusions.” 23[emphasis added]
2.6. ThiswasreiteratedbyMrGeorgiosKoumoutsakos,spokespersonforthe
Respondent’sForeignMinistry,inanarticlepublishedontheMinistry’swebpage
and in the Respondent’s national newspaper Kathimerini:
“Greece’s positions became those of the alliance. This was neither an
inevitable outcome nor a natural process. In between the Greek stance
andtheadoptionofGreece’spositionsbythealliance,therewereconstant
24
meetings and intensive negotiations.” [emphasis added]
2.7. MsBakoyannishasalsoconfirmedthismorerecentlyinaspeechpublished
on the website of the Respondent’s Foreign Ministry, in which she stated that:
“[a]ttheNATOmeetinginBucharest… theGreekpositiononFYROM’saccession
became a binding, allied position.” 25
23
StatementmadebytheRespondent’sForeignMinister,DoraBakoyannis,intheRespondent’s
Parliament,Session of the Greek Parliament Held on 10 April :Reply, Annex 79. It also
features on the website of the Respondent’s Ministry of Foreign Affairs, belying any suggestion
bytheRespondentthatthisorothersimilarstatementsdidnotrepresenttheRespondent’sofficial
position: Respondent’s Ministry of Foreign AffP,arliamentary Speech of Foreign Minister
Dora Bakoyannis(11 April 2008): Reply, Annex 148.
24 Embassy of the Respondent in Washington, DCF,YROM: article by FM spokesman Mr
G. Koumoutsakos in the Athens daily Kathimerini, entitled ‘Bucharest: The day after’ (9 April
2008): Reply, Annex 145.
25 Respondent’s Ministry of Foreign Affai,peech of FM Bakoyannis at an event hosted
by the Constantine Karamanlis Institute for Democracy (16 February 2009): Reply, Annex 189
[emphasisadded].Seefurther:PeterBaker:“ForMacedonia,NATOSummitaDisappointment”,
- 25 -2.8. As the above statements make clear, the Respondent’s objection to the
Applicant being invited to join NATO at the Bucharest Summit was articulated
by the Respondent in numerous “meetings and intensive negotiations”in the 26
weeksandmonthsleadinguptothesummit.Thosemeetingsincludedthemeeting
of NATO Foreign Ministers in Brussels on 6 March 2008, and at the Bucharest
Summit itself. The Respondent’s efforts to garner support for its objection
were described contemporaneously by the Respondent’s Foreign Minister, Ms
Bakoyannis, and its Government spokesperson, Mr Theodoros Roussopoulos:
• “Wehaveoutlinedourviewspubliclyand,ofcourse,wehavecontacted
foreign leaders… Greek diplomacy uses all those arguments that can
bedrawnfromhistory,geographyandtheinternationalenvironmentin
ordertopersuadeitsalliesandpartnersinthiscase.” 27[emphasisadded]
• “[O]ur government gradually built –step by step, in a methodical
and well-organised 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
28
sendinganinvitationtoSkopjeattheBucharestSummit.”[emphasis
added]
• “LastApril,wereachedasignificantstageinBucharest,aspartofour
longstandingeffortsforamutuallyacceptablesolution.Thankstothe
right, structured preparation, throughpainstaking negotiations and
with the valuable support of the Greek community across the world,
The Washington Post (4 April 2008): “Because it operates on consensus, embarrassed NATO
leaders had no choice but to bow to Greek objections and cross Macedonia off the list.” Reply,
Annex 143.
26
Reply, Annex 145, supra.
27 “Government on Karamanlis-Papandreou talks over name issue”, Athens News Agency (1
April 2008): Reply, Annex 121.
28 Embassy of the Respondent in Washington, DCS,peech of FM Ms. Bakoyannis before the
governing party’s Parliamentary Group (27 March 2008): Memorial, Annex 89.
- 26 - wemanagedtoconvinceouralliesandfriendsonthesoundnessofour
positions and the reliability of our arguments.” [emphasis added]
2.9. Speakingtriumphantlytothe“menandwomenofGreece”aftertheBucharest
Summit Declaration, the Respondent’s Prime Minister, Mr Kostas Karamanlis,
boasted of the individual and autonomous role played by the Respondent in
objecting to theApplicant being invited to join NATO at the Bucharest Summit:
“United, with confidence in our abilities, we fought a successful battle…
Due to Greece’s veto, FYROM is not joining NATO… I have said to
everyone – in every possible tone and in every direction – that ‘a failure
to solve the name issue will impede their invitation’to join theAlliance.
And that is what I did…We fought hard for many months…Today and
yesterday,duringthemeeting,wereiteratedourstrongargumentcsl,early
stating our positions and intentions.”30 [emphasis added]
2.10. The“battle”foughtbytheRespondentthroughouttheperiodleadingupto
theBucharestSummit,involveditarticulatingitsobjectiontotheApplicant’sNATO
membership, orally and in writing, to other NATO Member Countries and to the
generalpublic,asevidencedbynumerouscontemporaneousspeeches,interviews,
letters, diplomatic communiqués and newspaper articles. The Respondent was
not passively observing events as they unfolded. Rather, it actively opposed the
Applicant’s application, as the following paragraphs illustrate.
2.11. Official documents, written and distributed by the Respondent to NATO
Member Countries prior to the Bucharest Summit, set out the Respondent’s
objection to the Applicant’s NATO candidacy, and the reasons provided by the
Respondent therefor: 31
29
Respondent’s Ministry of Foreign Affair,peech of FM Bakoyannis at an event hosted
by the Constantine Karamanlis Institute for Democracy (16 February 2009): Reply, Annex 189.
30 Ministry of Foreign Affairs of the Responden, essage of Prime Minister Mr. Kostas
Karamanlis(3 April 2008): Memorial, Annex 99.
31 SeealsointhisregardtheentryonthewebpageoftheRespondent’sEmbassyinWashington,
DC, PM sends letters to leaders of NATO members states on FYROM (2 April 2008): “Prime
Minister Costas Karamanlis on Tuesday sent letters to the leaders of the member-states of
- 27 - • “Formycountry,inadditiontoanyaccessioncriteria,itisofcardinal
importance that the overall levels of security, military or political, be
properly served by any enlargement process. This necessitates the
resolution of the existing problems which lie at the heart of the notion
of good neighbourly relations between old and prospective Alliance
members beforehand. [...] The satisfactory conclusion of the said
negotiations is asine qua non in order to enable Greece to continue
to support the Euro-atlantic aspirations of Skopje”: Aide mémoire
circulated by the Respondent to every NATO Member Country prior
totheBucharestSummit.[emphasisinitalicsadded;emphasisinbold
supplied]
• “Greecefacesaseriousissuewiththecandidacyofthethirdaspirant,
namely the former Yugoslav Republic of Macedonia, concerning its
name which, despite the ongoing negotiations under UN auspices
during the last thirteen years, remains unresolved”: letter dated 31
March2008fromtheRespondent’sPrimeMinistersenttoeveryNATO
Member Country. [emphasis added]
2.12. The Respondent’s Prime Minister and Foreign Minister, the most senior
representatives of the Respondent’s government, and spokespersons from the
Respondent’s Foreign Ministry, also made numerous official statements in the
monthsleadinguptotheBucharestSummit,atthesummititself,andimmediately
followingit,concerningtheRespondent’spositionvis-à-vistheApplicant’sNATO
membership.ThoseofficialstatementsannouncetheRespondent’sobjectiontothe
ApplicantbeinginvitedtojoinNATOatBucharestduetotheongoingdifference
betweenthePartiesoverthename,anddescribethefactthereof.Theyalsoclearly
NATO, in which he expounds on Greece’s positions on the name issue of the Former Yugoslav
RepublicofMacedonia(FYROM),inviewofthealliance’sBucharestsummit”:Reply,Annex129.
32 The Respondent,Aide Memoire, sent to all NATO Member Countries: Memorial, Annex
129. It is noteworthy that the Respondent acknowledges in this document that its requirement
that “existing problems” be resolved prior to the Applicant being able to accede to NATO is not
one of NATO’s “accession criteria”, but something “in addition” to that.
33 Letter dated 31 March 2008 from the Respondent’s Prime Minister, Kostas Karamanlis, as
senttoallNATOMemberCountries(31March2008):Reply,Annex6.Seefurthernotes3 upra.
- 28 -state the contemporaneous reason provided by the Respondent for its objection.
A selection of those statements – many of which were made in formal settings,
including the Respondent’s Parliament – is set out below:
• “Without a mutually acceptable solution allied relations cannot be
established,therecannotbeaninvitationextendedtotheneighboring
country to join theAlliance. No solution means – no invitation”:the 34
Respondent’s Prime Minister, speaking in Parliament on 22 February
2008. [emphasis added]
• “Thephilosophy,thestrategicgoal,theframework,thebasicelements
of our policy are well-known. The strategy we mapped is clear. Our
will for a mutually acceptable solution is genuine. Our position,
“no solution – no invitation”, is clear. If there is no solution, our
neighbouring state’s aspirations to participate in NATO will remain
unrealised”. And this is because the principle of good neighbourly
relationsisabasicandnecessaryprerequisiteforalliedrelations 3:”the
Respondent’s Prime Minister speaking in Parliament on 29 February
2008. [emphasis added]
• “Greece was therefore unable to provide its consent to the invitation,
asIstressedtomyfellowcolleaguesintheCouncil.Wearenothappy
about that. Nobody likes “vetos”...As long as there is no... solution,
there will be an insurmountable obstacle to FYROM’s Euroatlantic
ambitions”: the Respondent’s Foreign Minister, speaking after the
InformalMeetingofNATOForeignMinistersinBrusselson6March
2008. [emphasis added]
34 StatementmadebytheRespondent’sPrimeMinister,KostasKaramanlis,duringaforeign
policy debate held in the Respondent’s Parliamet,ession of the Greek Parliament Held on 22
February 2008: Reply, Annex 75; see also: “Premier dangles FYROM vetoK ”,athimerini(23
February 2008): Memorial, Annex 80.
35 Embassy of the Respondent in Washington, DCP ,rime Minister on FYROM: ‘No solution
means no invitation’ (29 February 2008): Reply, Annex 97.
36 Dora Bakoyannis, “NATO Enlargement and Alliance PrinciplesA ”,tlantic-community.org
(uploaded 7 March 2008): Memorial, Annex 83.
- 29 - • “No solution means no invitation, in other words, no accession
to NATO”: the Respondent’s Prime Minister speaking at a press
conference in Brussels, on the sidelines of the European Summit.
[emphasis added]
• “If there is no compromise, we will block their [the Applicant’s]
accession”: the Respondent’s Foreign Minister speaking to German
newspaperSuddeutscheZeitungon17March2008.[emphasisadded]
• “These past few months, we have responsibly made it clear that
without a mutually acceptable solution the road to NATO cannot be
39
opened for our neighbouring country. It cannot be invited to join”:
the Respondent’s Prime Minister, speaking to the governing party’s
Parliamentary Group on 27 March 2008. [emphasis added]
• “Only a mutually acceptable solution confirmed by the Security
Council…canformthebasisforbuildingalliedrelationsandrelations
ofsolidarity…[N]osolutionmeansnoinvitation”:theRespondent’s
PrimeMinister,speakinginParliamenton28March2008.[emphasis
added]
• “As long as the problem persists we cannot and will not endorse
FYROMjoiningNATOortheEuropeanUnion.NoGreekgovernment
will ever agree to it. No Greek Parliament will ever approve it”:the 41
Respondent’s Foreign Minister, speaking to the International Herald
Tribune on 28 March 2008. [emphasis added]
37 “Athens talks tough on FYROM”, Kathimerin(i15 March 2008): Reply, Annex 109.
38 ConsulateGeneraloftheRespondent,SanFrancisco,CA I,terview of FM Ms. Bakoyannis
with the German daily Suddeutsche Zeitung (17 March 2008): Reply, Annex 110.
39 Embassy of the Respondent in Washington, DCE ,xcerpts from Prime Minister Mr. Kostas
Karamanlis’ speech on foreign policy before the governing party’s Parliamentary Group (27
March 2008): Memorial, Annex 88.
40 StatementmadebytheRespondent’sPrimeMinister,KostasKaramanlis,intheRespondent’s
Parliament, Session of the Greek Parliament Held on 28 March 20:08eply, Annex 77.
41 DoraBakoyannis,“TheviewfromAthens” I, ternationalHeraldTribune(31 March 2008):
Memorial, Annex 90.
- 30 - • “We have stated our position repeatedly – I will say it again: No
42
solution means no invitation”: the Respondent’s Foreign Minister
on 31 March 2008. [emphasis added]
• “Wehavesaidthatnosolution(tothenamedispute)meansnoinvitation
(for Macedonia)”: the Respondent’s Foreign Minister, speaking to
reportersaftermeetingtheRespondent’sPrimeMinisteron2April2008,
shortly before leaving for the Bucharest Summit. [emphasis added]
• “Men and women of Greece…Due to Greece’s veto, FYROM is not
44
joining NATO”: the Respondent’s Prime Minister, speaking to the
people of Greece in a televised address immediately following the
announcement of the Bucharest Summit decision on 3 April 2008.
[emphasis added]
• “We did not surrender anything… We were just persuasive. We gave
a battle with self-confidence and arguments.It was the first time a
45
NATOmember-stateusedthevetoright,seriouslyandresponsibly”:
the Respondent’s Prime Minister, addressing Parliament on 10 April
2008. [emphasis added]
• “OnApril2,GreecekeptitsdaIttef.ollowedthroughonitspubliclydeclared
stanceontheFormerYugoslavRepublicofMacedonianameissue:” 46
spokespersonfortheRespondent’sForeignMinistry,writinginanarticle
published in Greek newspaperKathimeriniand on the Respondent’s
Foreign Ministry’s website on 10 April 2008. [emphasis added]
42 “FYROM veto seems likely”, Kathimerin(i1 April 2008): Reply, Annex 122.
43 DavidBrunnstromandJustynaPawlak:“GreecestandsbyNATOvetothreatforMacedonia”,
Reuters(2 April 2008): Reply, Annex 131.
44 Ministry of Foreign Affairs of the RespondentM, essage of Prime Minister Mr. Kostas
Karamanlis(3 April 2008): Memorial, Annex 99.
45 ConsulateOfficeoftheRespondentinLosAngeles,CA P,rimeMinisteraddressesoff-the-
agenda discussion on FYROM issue (11 April 2008): Reply, Annex 147.
46 Embassy of the Respondent in Washington, DCF ,YROM: Article by FM spokesman Mr
G. Koumoutsakos in the Athens daily Kathimerini, entitled ‘Bucharest: The day after’ (9 April
2008): Reply, Annex 145.
- 31 -2.13. OfficiallettersandaidesmémoiressentbytheRespondenttootherStates
and to various international and regional organizations and institutions, in the
weeks and months following the Bucharest Summit provide further evidence of
the fact and basis of the Respondent’s objection. See, for example, the following
descriptions by the Respondent of the fact of its objection:
• “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”: letters
fromtheRespondent’sPrimeMinistertotheUnitedNationsSecretary-
47
General,dated14April2008, andfromtheRespondent’sPermanent
RepresentativetotheUnitedNationstothePermanentRepresentatives
of Costa Rica and China . [emphasis added]
• “At the NATO’s Summit in Bucharest in April 2008, allied leaders,
uponGreece’sproposala ,greedtopostponeaninvitationtoFYROMto
jointheAlliance,untilamutuallyacceptablse olutiontothenameissue
50
isreached”: AideMémoiredated1June2008fromtheRespondent’s
Permanent Observer Mission to the Organization ofAmerican States
and its Member States. [emphasis added]
47 Letterdated14April2008fromtheRespondent’sPrimeMinistertotheSecretary-General
of the United Nations, forwarded to the United Nations Secretary-General by Letter of the
Respondent’s Permanent Representative to the United Nations, Ambassador John Mourikis,
under reference F.4608/434/AS1121: Counter-Memorial, Annex 9.
48
Letter dated 14 April 2008 from the Respondent’s Permanent Representative to the United
Nations,AmbassadorJohnMourikis,tothePermanentRepresentativeofCostaRicatotheUnited
Nations, Jorge Urbina: Memorial, Annex 132.
49 Letter dated 14 April 2008 from the Respondent’s Permanent Representative to the United
Nations, Ambassador Mourikis, to Permanent Representative of China to the United Nations
H.E. Ambassador Wang Guangya, Ref. F.4608/450/AS 1161: Counter-Memorial, Annex 54.
50 Permanent Observer Mission of the Respondent to the Organization of American States,
Washington, D.C.,Aide Memoire: Greece and the Former Yugoslav Republic of Macedonia
(FYROM), The name issue and OAS member,a sstataschedtoaletterdated1June2008from
the Respondent’s Permanent Observer Mission to Heads of Delegation, the Secretary-General
andtheAssistantSecretary-GeneraloftheOrganizationofAmericanStates(1June2008):Reply,
Annex 33.
- 32 -2.14. The overwhelming evidence of official oral and written statements and
letters by the Respondent’s highest-ranking representatives addressed to the
United Nations, to NATO Member Countries and to the “men and women of
Greece” , confirms that the Respondentdidplay an individual and autonomous
role in objecting to the Applicant being invited to join NATO at the Bucharest
Summit, and that its objection was based on the non-resolution of the difference
overtheApplicant’sname.TheRespondentnowattemptsinitsCounter-Memorial
to repudiate those statements and communications as “unilateral acts” which
52
made no “attempt accurately to describe Greece’s conduct”. That claim has
no foundation in fact or law. The Court has determined that statements made by
a State’s Foreign and Prime Ministers have a particular authority.There can
be no question that these oral and written statements and explanations, often
made in formal settings such as the Respondent’s Parliament, were made by the
Respondent’s high-ranking representatives acting in their official capacity.They
were intended to accurately describe – and did so describe – the fact of, and the
basis for, the Respondent’s objection to the Applicant’s NATO membership in
or aroundApril 2008.
2.15. The Respondent also seeks to distance itself from the statements made
and official communiqués sent by its highest ranking officials regarding its
objection, on the basis that they “did not qualify that conduct in terms of the
54
InterimAccord” . This argument is unmeritorious. This is demonstrated by the
followingexcerptfromanaidemémoiresentbytheRespondent’sPrimeMinister
to every NATO Member Country prior to the Bucharest Summit:
51
Ministry of Foreign Affairs of the Respondent, essage of Prime Minister Mr. Kostas
Karamanlis(3 April 2008): Memorial, Annex 99.
52
Counter-Memorial, paras. 5.54-55.
53 See,e.g.,ArmedActivitiesontheTerritoryoftheCongD oe(mocraticRepublicoftheCongov.
Uganda), Judgment, I.C.J. Reports, 2 pa0a6. 46: “it is a well established rule of international law
thattheHeadofState,theHeadofGovernmentandtheMinisterforForeignAffairsaredeemedto
representtheStatemerelybyvirtueofexercisingtheirfunctions,includingfortheperformance,on
behalfofthesaidState,ofunilateralactshavingtheforceofinternationalcommitments.”Although
the current proceedings do not concern unilateral acts, the case underscores that the Court has
recognized that statements made by a State’s highest ranking officials carry particular weight.
54 Counter-Memorial, para. 5.55.
- 33 - “[W]e cannot accept the argument of Skopje that Greece is obliged by
article11oftheInterimAccordnottoobjecttothemembershipofFYROM
to NATO with that name. Firstly because the Interim Accord is binding
for both Parties as a whole (Art. 5, 7 and 11) and cannot be selectively
implemented.Secondly,becausethetimehascometosolvethisproblem,
otherwiseaccessionofFYROMintoNATOnotonlyit[sic]willperpetuate
it, but it will also create insurmountable difficulties to the day-to-day
operation of theAlliance.” [emphasis added]
2.16. TheRespondent’sForeignMinisteralsoclearly“qualified”theRespondent’s
objection in relation to the Interim Accord. Thus, the press report of a formal
statement, given by the Respondent’s Foreign Minister on the very day of the
Bucharest Summit decision, records as follows:
“‘We wish to see Skopje get into NATO but a condition for this are good
neighbor relations and finding a mutually accepted solution to the name
issue,’Bakoyannisunderlined,addingthatAthenswouldcontinuetowork
withUNmediatorMatthewNimetztowardthisend…Regardin Ggreece’s
refusal to agree to FYROM’s entry with the temporary name established
under the interim agreement of 1995 and currently in use at the UN, the
minister said thatthis proposal would not have solved the problem but
only covered it up.”56[emphasis added]
2.17. In fact, the statements by the Respondent’s officials (a selection of which
are set out above and in Chapter II of the Applicant’s Memorial) made before
55
The Respondent, Aide Memoire: Memorial, Annex 129.
56 Embassy of the Respondent in Washington, D,akoyannis: Greece satisfied with NATO
result on FYRO(M4April2008):Reply,Annex139.SeealsothestatementmadebyMsBakoyannis
in response to a question posed by a journalist asking if she had considered whether “[a] painless
solution for the government would be to postpone the iovoke the interim agreement and
agree to FYROM joining NATO under that nam”: “Politically painless solutions do not benefit
the nation. Burying one’s head in the sand always comes at a coseslitical cowardice”:
Dora Antoniou: “FYROM solution lies in compound name” K,athimerini (15 October 2007)
[emphasisadded]:Reply,Annex167.SeefurtherastatementbyMsBakoyannistotheeffectthat
“[t]he provisional name “Former Yugoslav Republic of Macedonia” seemed to have outgrown its
usefulness”: Memorial, Annex 89.
- 34 -the Respondent’s official organs, to international organizations and during press
conferencesandinterviews,areofthehighestprobativevalue,acknowledgingfacts
unfavorabletotheRespondent’sassertedposition.TheCourtwasquiteclearinthe
Nicaraguav.UnitedStatescaseregardingthevalueofsuchstatementsasevidence:
“The material before the Court … includes statements by representatives
ofStates,sometimesatthehighestpoliticallevel.Someofthesestatements
weremadebeforeofficialorgansoftheStateorofaninternationalorregional
organization, and appear in the official records of those bodies. Others,
madeduringpressconferencesorinterviews,werereportedbythelocalor
international press.The Court takes the view that statements of this kind,
emanatingfromhigh-rankingofficialpoliticalfigures,sometimesindeedof
thehighestrank,areofparticularprobativevaluewhentheyacknowledge
facts or conduct unfavourable to the State represented by the person
who made them. They may then be construed as a form of admission.” 57
2.18. The Court has recently confirmed that it will “prefer contemporaneous
evidence from persons with direct knowledge. It will give particular attention
to reliable evidence acknowledging facts or conduct unfavourable to the State
represented by the person making them.” 58
2.19. Inadditiontotheabove,theextensivepresscoverageoftheRespondent’s
objectiontotheApplicant’sNATOmembershipattheBucharestSummit,including
59
articles reported on the official websites of the Respondent,provides further
evidence of the fact of that objection. Examples of the vast number of articles
on the topic are provided atAppendix I to this Reply. 60They demonstrate public
57 Nicaragua v. United States(Merits,)1986 I.C.J. at para. 64. This is dealt with further at
Chapter IV below.
58 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda) (Merits), Judgment of 19 December 2005, at para. 61.
59 A selection of these is set out at Section 1 to Appendix I.
60
A selection of the vast number of articles reporting the Respondent’s objection is set out
at Appendix I. See also Memorial, Chapter II, paras. 2.58 to 2.60, and corresponding footnotes
and Annexes.
- 35 -knowledgeoftheRespondent’sconduct.AsindicatedbytheCourtiN nicaragua
v. United States:
“althoughitisperfectlyproperthatpressinformationshouldnotbetreated
initselfasevidenceforjudicialpurposes,publicknowledgeofafactmay
neverthelessbeestablishedbymeansofthesesourcesofinformation,and
theCourtcanattachacertainamountofweighttosuchpublicknowledge.
In the case ofUnited States Diplomatic and Consular Staff in Tehrant,he
Court referred to facts which “are, for the most part, matters of public
knowledgewhichhavereceivedextensivecoverageintheworldpressand
in radio and television broadcasts from Iran and other countries(”I.C.J.
Reports1980,p.9,para.12).Onthebasisofinformation,includingpress
and broadcast material, which was “wholly consistent and concordant as
to the main facts and circumstances of the case”, the Court was able to
declare that it was satisfied that the allegations of fact were well-founded
61
(ibid., p. 10, para. 13).”
2.20. Inthefaceofsuchevidence,itissimplyunsustainablefortheRespondent
to claim that it played no individual or autonomous role in objecting to the
Applicant’s NATO membership. Moreover, NATO itself has confirmed the fact
andthestatedbasisoftheRespondent’sobjection.NATOSpokesman,MrJames
Appathurai,statedtothepressduringthecourseofdeliberationsattheBucharest
Summit on 3April:
“Final decisions, discussions will take place tomorrow. But I think it is
safe to say that for the moment there is consensus for two of the three
countriestoentertheAllianceortobeofferedinvitationstobeginaccession
talks, starting tomorrow. There’s also a shared, indeed unanimous view
within the Alliance that the third country the former Yugoslav Republic
of Macedonia should as soon as possible be offered the opportunity in
accession talks.But well there’s no secret, the Greek delegation made it
veryclearthatuntilthenameissueisresolved,ithasnotyetbeenresolved,
61 MilitaryandParamilitaryActivitiesinandagainstNicaragua(Nicaraguav.UnitedStates),
Judgment, Merits, I.C.J. Reports 1986, para. 63.
- 36 - that will not be possible. So that is where we stand on the name issue.” 62
[emphasis added]
“The Greek government has been very clear, including this evening’s
discussions. And until and unless the name issue is resolved, there
cannot be consensus on an invitation for the former Yugoslav Republic
63
of Macedonia to begin accession talks.” [emphasis added]
2.21. The Respondent has repeatedly asserted in its Counter-Memorial that
the statements of NATO representatives are “entitled to full deference from the
Court”. 64
2.22. Accounts provided by other NATO Member Countries in attendance at
the Bucharest Summit also describe the fact of, and basis for, the Respondent’s
objection to theApplicant’s NATO membership at the Bucharest Summit.For 65
example, the Spanish Foreign Minister, Mr MiguelAngel Moratinos, speaking
in Bucharest, stated that “[f]or the moment, Greece is not in a position to agree
to the entry of Macedonia…”. The former Slovenian Prime Minister, Mr
Janez Janša, also in attendance at the Bucharest Summit has confirmed that
the Respondent had formalized its objection in the meetings leading up to the
67
Bucharest Summit, and at the summit itself. Further examples are provided in
62 PressBriefingbyNATOSpokesman,JamesAppathuraiof3April2008:Counter-Memorial,
Annex 30, pages 1-2.
63 Ibid.,at p. 3.
64 See, e.g., Counter-Memorial, para. 7.40.
65 Memorial, paras. 2.61-62.
66 See also, the account of the Bucharest Summit meeting provided by the Spanish Foreign
Minister, Angel Miguel Moratinos, as reported by Reuters in “NATO to admit Croatia and
Albania but delays Macedonia”R , euters(2 April 2008): Reply, Annex 132. The same statement
is repeated in 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): Memorial, Annex 100.
67 “Greece had in fact exercised a veto at the bodies that had been previously deciding, and
finally, in Bucharest”: Goran Momirovski, “Janez Jansa: The decision not to invite Macedonia to
membership was adopted because of the Greek veto on MacedoniaK ”,anal 5 TV(25 June 2009):
Memorial, Annex 106.
- 37 - 68
theApplicant’s Memorial. The United States Congressional Research Service
has more recently described the objection as follows:
“Greece,whosepositionis“nosolutionmeansnoinvitation”forMacedonia
to join NATO and the EU, prevented NATO from reaching a consensus
on extending an invitation to Macedonia to join the alliancb eecause no
solution to the name dispute had been found.” 69[emphasis added]
2.23. Seasoned diplomats and former NATO officials have also confirmed the
fact and basis of the Respondent’s objection to theApplicant’s NATO candidacy
attheBucharestSummitandtheconsequencesofthatobjection.NATO’sformer
Secretary-General, Lord Robertson, speaking at a symposium in 2009 to mark
NATO’s sixtieth anniversary, condemned the Respondent’s objection:
“Disgracefully, Macedonia will not be invited due to an arcane and
indefensible and shocking blockage by a NATO country on a democratic
neighbor... Greece is stopping Macedonia, a country that managed to
save itself from a civil war and us from a lot of cost and misery, has been
stopped and vetoed by Greece simply over the name of the country...”. 70
[emphasis added]
2.24. Mr Robin O’Neill, Personal Representative in 1992 of the Chair of the
Council of Ministers of the European Community (British Foreign Secretary,
Mr Douglas Hurd MP), has also recently spoken out about the Respondent’s
objection. Mr O’Neill, who was tasked in 1992 with establishing a basis for
the recognition of theApplicant by the European Community, in the face of the
68 Memorial, para. 2.61 and corresponding Annexes.
69
United States Congressional Research Servic, reece Update(16 December 2009), p. 8:
Reply, Annex 82. See also the House of Commons Defence CommitteTe,e future of NATO and
European defence: Government response to the Committee’s Ninth Report of Session 2007,-08
EightSpecialReportofSession2007-08,HC660(19June2008)atpara.34:“AtBucharest,Albania
and Croatia were invited to join NATO and will now begin accession talks. It was disappointing
that an invitation was not also extended to Macedonia because of a bilateral dispute with Greece
over its constitutional name”: Reply, Annex 80.
70 Council on Foreign Relations,Transcript: Remarks by Former NATO Secretary-General
(25 February 2009): Reply, Annex 81.
- 38 -Respondent’s contemporaneous objection to its recognition, stated in a recent
televised telephone interview, broadcast on the Applicant’s national television
station:
“I hope that the Greek government will now accept the importance of
readiness to work for European stability and will do this by deciding
to raise its refusal alone among the member states of NATO to admit
MacedoniatotheAlliance.ThisrefusalbyGreecegoesagainstArticle11
of the InterimAgreement, as I understand it, that the differences between
Greece and Macedonia over the name of Macedonia will not stand in the
wayofMacedoniajoininginternationalorganizations.IthinkthatGreece
shouldacceptthatplayingafullpartininternationalorganizationsmeans
71
giving as well as taking.” [emphasis added]
2.25. TheRespondenthasnotsoughttoclaimthatrepresentativesofNATOand
ofotherNATOMemberCountrieshavemisrepresentedtheRespondent’sactions
prior to and at the Bucharest Summit. Nor does it claim that statements made
by them concerning the Respondent’s objection to that candidacy were “not an
72
attempt accurately to describe Greece’s conduct”; it cannot. Those statements
alone provide incontrovertible evidence of the role played by the Respondent in
objectingtotheApplicant’smembershipofNATOattheBucharestSummit,and
the reason provided by the Respondent contemporaneously for that objectio ▯ n.
71 Transcript of a television interview with Robin O’Neill for a television programme
“Otvoreno so Narodot”, broadcast onMacedonian Television (MT) on 10 May 2010: Reply,
Annex201. Seealso,thelettersenton19May2008totheNATOSecretary-Generalfromtwenty
European and American senior diplomats, academics and international officials to the NATO
Secretary-General,InvitationtotheRepublicofMacedoniatojoinNAT:O Memorial,Annex133.
72 Counter-Memorial, para. 5.55.
- 39 - Section II. TheApplicant is Referred to in NATO inAccordance with
Paragraph 2 of Resolution 817 and the Respondent’s Objection to the
Applicant’s NATO Membership in Bucharest Was Not Based onAny
Contrary Claim
2.26. In none of the Respondent’s official written or oral statements or
communications predating the institution of these proceedings, in which the
Respondent set out the reasons for its objection, did the Respondent claim that it
objectedtotheApplicant’sNATOmembershiponthebasisthattheApplicantwas
tobereferredtoinNATO“differentlythanthatinparagraph2ofSecurityCouncil
73
resolution817”. Indeed,incircumstanceswheretheApplicanitsreferredtoand
was to continue to be referred to in NATO as ‘the former Yugoslav Republic of
Macedonia’ pending resolution of the name issue, such an objection would not
and could not have been made.
2.27. AtnostagepriortotheinstitutionoftheseproceedingsdidtheRespondent
everseektoassertformallytotheApplicantthatthemannerinwhichtheApplicant
called itself in NATO was non-compliant with the Interim Accord or that the
Respondent was objecting to its membership on that purported basis. Indeed,
eveninitsCounter-Memorial,theRespondentacknowledgesthat“ifGreec head
objectedtotheFYROM’smembershipapplicationattheBucharestmeeting...the
failuretoresolvethedifferenceoverthenamewouldhavebeenthesolereason”. 74
2.28. It is therefore somewhat surprising that, faced with the realization that
its breach ofArticle 11(1) of the InterimAccord is inescapable, the Respondent
should seek to justify its objection on the basis that the Applican ctalls itselfby
its constitutional name in its dealings with NATO.Thus the Respondent claims
that “it is not only the international organization itself which is to refer to the
FYROM under that name but that the FYROM itself must do so”. 76
73 See Memorial, para. 2.60.
74 Counter-Memorial, para. 6.40 [emphasis added].
75
Counter-Memorial, paras. 4.12, and 4.70 to 4.72.
76 Counter-Memorial para. 7.62.
- 40 -2.29. As set out in the Applicant’s Memorial, the Applicant has always been
andcontinuestobereferredtoinNATOasin“paragraph2oftheUnitedNations
Security Council resolution 817”. It was invited to join the NATO Partnership
for Peace (PfP) and Membership Action Plan (MAP) as ‘the former Yugoslav
Republic of Macedonia’; it was – and continues to be – referred to as such in
the context of those programmes, and had agreed to continue to be so referred
on accession. There can be no doubt that, had the Applicant been invited to
join NATO at the Bucharest Summit, it would have been referred to “in such
organisation” no “differently… than in paragraph 2 of United Nations Security
Council resolution 817” (Article 11(1)).
2.30. Atthesametime,theApplicanthasalwayscalleditselfbyitsconstitutional
name of the ‘Republic of Macedonia’in its dealings with NATO and with NATO
Member Countries, as it is entitled to do. TheApplicant reiterates that it isnot
requiredto call itself ‘the formerYugoslav Republic of Macedonia’in NATO, or
in its dealings with the Respondent or other third parties, including international
organizations and institutions, nor did it ever agree to call itself such. This is not
a “unilateral and unsupported assertion”, as charged by the Respondent. To the
contrary, it is a fact supported unequivocally in 1995 by Mr Matthew Nimetz,
who then held the position of Special Envoy of the United States to the name
negotiationsandwasoneoftheprimaryactorsinnegotiatingtheInterimAccord.
Speaking to the press in the very week the InterimAccord was signed, he stated:
“FYROM is not the name of a country. It just means that there’s some
disagreement. And internationally, until that agreement is resolved,
internationalorganizationsandcertaincountriesliketheU.S.willnotfeel
77 See, e.g., NATO press briefings where it uses the provisional referencOo,int Press
Point with NATO Secretary-Genera, Mr Jaap de Hoop Scheffer and the President of the former
YugoslavRepublicofMacedonia,BrankoCrvenkovski (5 October 2007): Reply, Annex 4; NATO
PressConference,NATO Secretary-General Jaap de Hoop Scheffer following the North Atlantic
Council Summit meeting (3 April 2008): Reply, Annex 7.
78
Stavros Tzimas: “We are ready to join NATO as FYROM” K,athimerini(4 June 2007):
Memorial, Annex 69.
79 See further Chapter IV of this Reply.
80 Counter-Memorial, para. 7.88.
- 41 - comfortable using that name because of the delicacy of the relationship.
So we use a temporary reference, but we don’t pretend it is the name of
the country.
[...]
But the people from that country,when they talk about themselves, use
their constitutional name, Republic of Macedonia. And we have found
this to be the case, thatthere is no requirementfor them to use a name
thattheydon’taccept.Butthatdoesn’tmeanthattheorganizationaccepts
that name. It’s a subtlety, but maybe you can accept that.” [emphasis
added]
2.31. This contemporaneous explanation by an independent authority on the
Interim Accord and on the name negotiations, should be accorded the highest
deference by the Court.
2.32. Thus, while theApplicant is referred to within the PfP and MAP under
the provisional reference of ‘the former Yugoslav Republic of Macedonia’,
it has signed all written instruments and official correspondence with NATO
relatingtothoseprogrammesandotherwiseusingitsconstitutionalname;ithas 82
also always called itself by its constitutional name in its dealings with NATO.
This practice, in conformity with theApplicant’s constitutional provisions and
consistent with the established practice within the United Nations pursuant
to resolution 817, 83has never been remarked upon by NATO negatively.
Importantly, the Respondent did not contemporaneously identify this practice
as the reason for its objection to the Applicant’s NATO membership at the
Bucharest Summit, nor did it formally object to the Applicant’s use of its
81 “Foreign Press Center briefing with Ambassador Matthew Nimetz, special White House
Envoysubject:Macedonia-GreekagreementsW ”,hiteHouseBriefing(18September1995):Reply,
Annex 87.
82 See, e.g., Agreement among the States Parties to the North Atlantic Treaty and the other
States participating in the Partnership for Peace regarding the status of their forces, Brussels 19
June 1995: Counter-Memorial, Annex 16; and Additional Protocol to the Agreement among the
StatesPartiestotheNorthAtlanticTreatyandtheotherStatesparticipatinginthePartnershipfor
Peace regarding the status of their forces, Brussels 19 June 1995: Counter-Memorial, Annex 17.
83 See Chapter IV, paras. 4.40-4.51.
- 42 -constitutionalnameinNATO.Thetotalabsenceofanyevidencetothecontrary
in the Respondent’s Counter-Memorial is telling. Rather, on documents signed
by both Parties, in which the Applicant used its constitutional name, as it
was entitled to do, the Respondent simply noted that “its own signing of [the
agreements] can in no way be interpreted as an acceptance from its part, or as
recognition in any form and content of a name other than that of ‘the former
84
Yugoslav Republic of Macedonia’” . The Respondent now seeks to present
85
this practice as a “react[ion]” against theApplicant’s practice. It was nothing
of the sort: it was a practical measure adopted by the Respondent in the NATO
context,inkeepingwith,andreflectiveof,itspracticeinbilateraldealingswith
the Applicant, pursuant to the Memorandum of “Practical Measures” agreed
between the parties in 1995. 86
2.33. The Respondent’s ill-conceived claims that the manner in which the
Applicant callsitself is capable of constituting a breach of Article 11(1) of the
InterimAccord or of resolution 817, represents a misrepresentation of the facts,
as demonstrated above. It is also unsustainable as a matter of law, as dealt with
in Chapter IV of this Reply.
Section III. The Respondent Seeks to Escape the Consequences of its
Objection by Misrepresenting NATO Decision-Making onAccession
2.34. The Respondent’s Counter-Memorial contains two significant factual
misrepresentations concerning NATO processes on which the Respondent
purports to rely in order to deny the fact of its objection to the Applicant’s
NATO membership at Bucharest, and the consequences thereof.
84
Note 82, supra.
85 Counter-Memorial, para. 4.71.
86 ‘Memorandum on “Practical Measures” Related to the Interim Accord of New York of
September 13, 1995’ (Skopje, 13 October 1995): Memorial, Annex 3. See further paragraphs
2.36, 2.43 and 5.6 of the Memorial, and Chapter IV, para. 4.62 of this Reply.
- 43 -2.35. ThissectionfirstdealswiththeRespondent’smisrepresentationofNATO
decision-making as exclusively collective in nature. It further addresses the
Respondent’s misrepresentation, based on syllogistic reasoning, that the fact
that its objection to the Applicant being invited to join NATO at Bucharest
was described by its own representatives and by the press as a “veto”, in
circumstances where there is no formal “veto” procedure within NATO, means
that it cannot be found to have objected to theApplicant’s membership. Neither
oftheRespondent’sargumentsbearsscrutiny.Moreover,theApplicantreiterates
that,contrarytotheattemptbytheRespondenttorecastitscase,theApplicant’s
claim isnot directed at NATO as an organization, at NATO decision-making or
at any NATO decision. The objection by the Respondent, which is the subject
matter of the case before the Court, is entirely distinct from and preceded the
NATO Bucharest Summit decision.
A. NATO’ sC O Ns eNs-BAs e d eCisiO-M Ak iNgPrO Ce d u rsA N N OT Ndd O
N O Tsh i eTh er e sP d eN Tf rO MThCO Ns e q uNeCe sTs O Bj eC TiO N
2.36. The Respondent attempts to hide behind the NATO consensus-based
decision-making procedure in order to deny the fact of its own autonomous
objection to the Applicant’s NATO membership at Bucharest. It erroneously
87
asserts that “there is no mechanism… of objection… in theAlliance” and that
“the fact that decisions within NATO may be taken only by consensus makes
it impossible to individualise Member States’responsibility”. To the contrary,
andasNATO’sowndocumentation(includingthoseNATOmaterialssubmitted
by the Respondent) makes clear, NATO consensus proceduredoes not prevent
individualMemberCountriesfromobjectingtocertainproposeddecisionstabled
by NATO, including decisions at the highest level, such as NATO enlargement,
nordoesitshieldMemberCountriesfromtheconsequencesofthoseobjections.
Rather, consensus safeguards the autonomy of a Member Country to oppose
decisions on the basisinter aliaof its own foreign policy, and ensures that each
Member Country retains sovereignty and responsibility for its own decisi▯ons.
87
Counter-Memorial, para. 1.6.
88 Counter-Memorial, para. 6.88.
- 44 -2.37. PursuanttoArticle10oftheNorthAtlanticTreaty,decisionsconcerning
89
NATOenlargementmustbemade“byunanimousagreement”,reachedthrough
aprocessofconsensus-building,spanningmanymonths.Enlargementdecisions
aretakenbyNATO’shighestpoliticaldecision-makingbody,theNorthAtlantic
Council(“theCouncil”),constitutedofrepresentativesfromeachNATOMember
Country,andchairedbyNATO’sSecretary-General.Finaldecisionsconcerning
enlargement are taken at summit meetings, such as the Bucharest Summit of
April2008,attendedbyHeadsofStateandGovernment.However,consensusis
sought through a lengthy process over the weeks and months preceding summit
meetings,atCouncilmeetingsheldweeklyatlowerministeriallevels.Thus,the
candidacies of the Applicant, as well as its co-aspirants, Albania and Croatia,
were discussed at numerous Council meetings prior to the Bucharest Summit,
including the informal meeting of NATO Foreign Ministers held in Brussels on
6March2008.TheNATOHandbookexplainsthatCouncil“meetingstakeplace
91
withaminimumofformality;discussionisfrankanddirect”.“Whendecisions
have to be made, action is agreed upon on the basis of unanimity and common
accord. There is no voting or decision by majority.” 92
2.38. Consensus is achieved in circumstances where, taken at its highest, all
NATO Member Countries are in agreement on a given issue, or, taken at its
lowest, where all Member Countries acquiesce in the proposed decision by
not stating their objection to it (termed “the silence procedure”). Conversely,
consensus is not reached where one or more Member Country formally objects
89
Article 10 of the North Atlantic Treaty 1949: Memorial, para. 2.44.
90 NATO On-line Library, “Consensus decision-making at NATO”N , ATO Publications,
accessed 21 May 2010: Reply, Annex 1. See further, Leo Michel, “NATO Decisionmaking: Au
Revoir to the Consensus Rule?”,Strategic Forum, No. 202 (August 2003): Reply, Annex 66.
91 NATOHandbook,PublicDiplomacyDivision,2006:Counter-Memorial,Annex22,page38.
92 Ibid., page 35.
93 “The NAC [North Atlantic Council]achieves consensus through a process in which no
government states its objectio.nA formal vote in which governments state their position is not
taken. […] At NATO, the “silence procedure” may be used for any decision requiring consensus.
Attimes…agovernmentcanavoidthestepofstatingitsexplicitobjectiontoapoliic fyit believes
other allies are set on a course of action […]”: United States Congressional Research Service,
Report for Congress – NATO’s Decision-Making Procedure (5 May 2003): Reply, Annex 65.
- 45 -to the tabled proposal. This can lead to the objection by one or more Member
Country serving to block consensus, thereby preventing a decision being
reached. This was understood by the Respondent at the time of the Bucharest
95
Summit. Although such an objection is not called a “veto” within the NATO
96
context, its practical impact is the same, as NATO itself acknowledges, and as
the Respondent ultimately accepts (indeed, having spent much of its Counter-
MemorialerroneouslyseekingtodenytheabilityofindividualMemberCountries
toblockconsensus,theRespondenteventuallyconcedesthataMemberCountry
is able in practice to single-handedly “block the adoption of NATO decisions”
and even to “paralys[e] theAlliance’s decision making procedure”). 97
94 It is noteworthy that the Respondent’s objection to the Applicant’s NATO membership has
prompted one influential NATO Member Country to call for the consensus rule to be changed in
relationtoenlargementdecisionstopreventaMemberCountrysinglehandedlyblockinganother
Country’s accession: see “Canadian Defense Minister asks for change in NATO consensus on
admitting new members”,Macedonian Information Agency(8 March 2009): Reply, Annex 153.
Seealso“TimetoabolishthenationalvetoonnewNATOandEUmemberT s”,e Henry Jackson
Society(31 March 2008): Reply, Annex 78.
95
See, e.g., the statement of the Respondent’s Foreign Minister, Ms Bakoyannis, on 5 March
2008, in response to a question as to whether other NATO Member Countries would support
Greece’s position: “... A veto is exercised by one party. This is known from the point of view of
the procedure”: Embassy of the Respondent in Washington, DC I,terview of Foreign Minister
Ms. D. Bakoyannis on MEGA Channel’s evening news, with journalist Olga Tremi on 4 March
2008(5 March 2008): Reply, Annex 100.
96
“Il est certain que la règle de l’unanimité peut conduire à un veto de fait dans la pratique des
choses.”OTANDocumentationsurl’OrganisationduTraitédel’AtlantiqueNord,Analysedu,Traité
Publication OTAN, Service de l’Information, Paris, 1962, p. 18: Counter-Memorial, Annex 15.
97 Counter-Memorial,para.4.72.Thisacknowledgmentismadeinthecontextofadisingenuous
suggestion by the Respondent that the Applicant might act in such a way after admittance to
NATO membership. In response to this suggestion by the Respondent, the Applicant draws the
Court’s attention to the Applicant’s long-standing membership in other organizations, such as
the Organization for Co-operation and Security in Europe, which also function on the basis of
consensus, and in which the Applicant has never sought to block consensus on decisions on the
grounds that it is referred to under the provisional reference. The Applicant also refers the Court
to the NATO Handbook Documentation at Annex 19 to the Counter-Memorial, which provides:
“the Alliance rests upon commonality of views and a commitment to work for consensus;
part of the evaluation of the qualifications of a possible new member will be its demonstrated
commitment to that process and those values. We will invite prospective new members to
confirmthattheyunderstandandacceptthisandactingoodfaithaccordingly.TheAlliancemay
require, if appropriate, specific political commitments in the course of accession negotiations”:
NATO Handbook Documentation, NATO Office of Information 1999, pp. 166-193 and 335-
369: Counter-Memorial, Annex 19. Given the fact that the Applicant was adjudged to have
fulfilledallNATO membership criteria (see further para. 2.55 of the Memorial, and Section IV
of this Chapter), the suggestion by the Respondent that the Applicant would act capriciously to
- 46 -2.39. In the present case, the Respondent chose to repeatedly and explicitly
voiceitsoppositiontotheApplicant’sNATOmembershipattheCouncilmeetings
leading up to the Bucharest Summit, including the Informal Meeting of NATO
Foreign Ministers in March 2008, and in oral and written communications with
NATOMemberCountries.Itrepeatedthatobjectionatthesummit,asconfirmed
by representatives of NATO Member Countries in attendance at the summit,
includingtheSlovenianPrimeMinister,MrJanezJanšaandtheSpanishForeign
99 100
Minister, Mr MiguelAngel Moratinos, and, importantly, by NATO itself.
2.40. Theexistenceofthe“silenceprocedure”makesclearthatNATOMember
CountriesarenotunderadutyorobligationtoformallyobjecttoaNATOdecision
where they do not agree with it. This is the case even in relation to decisions of
theutmostimportance,suchasenlargementdecisionsordecisionsastowhether
to use force. This is explained in a report by the United States Congressional
Research Service:
“DuringtheKosovoconflict…itwascleartoallgovernmentsthatGreece
was immensely uncomfortable with a decision to go to war.NATO does
not require a government to vote in favor of a conflict, but rather to
objectexplicitlyifitopposessuchadecision.Athenschosenottoobject,
knowing its allies wished to take military action against Serbia. […]▯At
NATO, the “silence procedure” may be used for any decision requiring
consensus.Attimes,theprocedureallowsgovernmentsinoppositiontoa
measuretoavoidconfrontingotheralliesaroundthetableduringasession
of the NAC. The procedure can also provide cover for a government
from unwanted press reporting that might characterize its policy as out
of step with other allies.”101
paralyse the NATO decision-making process and/or that the Respondent’s stated concerns could
not have been dealt with through usual NATO processes, is as baseless as it is inflammatory.
98 See para. 2.22 sup.a
99
Ibid.
100 NATO,Press Briefing by the NATO Spokesman James A (5ppaatrhc2i008): Reply, Annex 5.
101 United States Congressional Research Servic,eport for Congress – NATO’s Decision-
Making Procedure (5 May 2003): Reply, Annex 65.
- 47 -2.41. The“silenceprocedure”isincompatiblewiththeRespondent’sassertion
that it owed an “obligation” to NATO to object to the Applicant’s NATO
102
membership.
2.42. Further and importantly, the consensus rule does not shield Member
Countries from the consequences of their individual acts taken within NATO,
whether at summit meetings or otherwise. The Respondent’s assertions that
“the fact that decisions within NATO may be taken only by consensus makes it
impossible to individualise Member States’responsibility” or that consensus
precludes the Respondent from having an “individual or autonomous role” in 104
relation to NATO decisions are simply wrong. The accurate position is the very
opposite of that presented by the Respondent: the consensus rule reflects the
nature of NATO as an alliance of independent and sovereign countries, rather
than as a supranational body. 105 Therefore, although Council decisions are the
expressionofthecollectivewillofmembergovernments,arrivedatbycommon
consent,eachMemberCountryretainssovereigntyandresponsibilityforitsown
decisions and actions contributing to, modifying or preventing consensus. This
is underscored in the NATO Handbook:
“Each member country represented at the Council table or on any of its
subordinate committeesretainscomplete sovereignty and responsibility
for its own decisions.” 106
2.43. Theconsensusrulethusensures “thatpolicy-makingremainstheultimate
107
prerogative of the sovereign member states.” In such circumstances, the
102 Counter-Memorial, para. 7.45.
103 Counter-Memorial, para. 6.88.
104
Counter-Memorial, para. 6.74.
105 NATOOn-lineLibrary,“NATOTransformed:HowNATOWo NrksO, Publication:sAnnex3.
106 NATOHandbook,PublicDiplomacyDivision,2006:Counter-Memorial,Annex22,page35.
107 FredoDannenbring:“Consultations:ThepoliticallifebloodoftheAlliancN e”,TO Revie,w
volume 33/6, 1985, p. 5-11: Counter-Memorial, Annex 145, page 10. See further the following
extract from the British Government website: “Every decision taken by NATO is based on
consensus. This means thatevery country in NATO must agree before a decision can be take.n
Although this can lead to lengthy discussion, it has two advantages. y,e sovereignty and
- 48 -Respondent’s attempt to claim that NATO acts as some form of “veil” shielding
the Respondent from the consequences of its objection to the Applicant’s
108
NATO membership at the Bucharest Summit represents a fundamental
misunderstanding or misrepresentation of the nature of NATO as an alliance:
NATO processes do not, in fact, assist the Respondent in its attempt to evade
the consequences of its objection to the Applicant’s NATO membership at the
BucharestSummit.ContrarytotheRespondent’sclaims,theRespondentwasat
all times – and remains – responsible for its objection to theApplicant’s NATO
membership, which served to prevent theApplicant being invited to join NATO
in Bucharest. This is dealt with in further detail in Chapter IV below.
B. W h eTh e rTh re sP Od eN’s OBj eC TiO NT OThAP Pl iC ATsNATO
M eM Be r sPA M OuN Te dT OA“VeT O” s r r e eA N T
2.44. Contrary to the recasting of theApplicant’s claim by the Respondent in
itsCounter-Memorial,thecurrentproceedingsarepredicatedonthefactthatthe
RespondentobjectedtotheApplicant’sNATOmembership,notonanyclaimthat
its actions amounted to a formalveto; it is therefore irrelevant for the purposes
of this claim whether there is a formal veto procedure within NATO, whether
theRespondent’sobjectionwascapableof–ordid–constituteaformalveto,or
whether NATO recognizes such a term. What matters is the fact that itbjected
to theApplicant being invited to accede to NATO membership at Bucharest.
2.45. The Respondent seeks to deny the fact of its objection by focusing on
the original language usedby its own representativesand by the world media to
describeitsobjectionasa“veto”.Itsargumentissummedupatparagraph6.74of
itsCounter-Memorial:“Mr.DeHoopScheffer,Secretary-GeneralofNATOina
PressConferenceon19February2009...rejectedtheideaofavetobyGreeceand
stated that “NATO does not know the word veto. We operate by consensus and
independence of each member country is res,dand secondly, when a decision is reached
it has the full backing of all the NATO countries. This helps to strengthen the role of NATO”:
DirectGov(UKGovernment’sDigitalService),“NATO:HowNATOWorkD s”i,rectgov:.Reply,
Annex 57.
108 Counter-Memorial, para. 6.84.
- 49 -unfortunately there was no consensuslastyearatthesummitinBucharest[...].”
ThisstatementclearlyrulesoutanyattempttolinkNATO’sdecisiontoGreece.”
Putsimply,thesyllogismadoptedbytheRespondenttoevadetheconsequences
of its objection would posit that because the Respondent’s objection has been
described as a “veto”, and because NATO “does not know the word “veto””,
the Respondent cannot be said to have objected. This assertion constitutes a
misrepresentation of NATO’s account of what happened at Bucharest. It is also
entirely beside the point.
2.46. As set out in detail in theApplicant’s Memorial and in Chapter IVof the
Reply, the current proceedings are based on the breach by the Respondent of
its obligation arising under Article 11(1) of the Interim Accord “not to object”
to the Applicant’s membership of NATO. The Article 11(1) obligation applies
“irrespective of whether its objection amounted to a veto and irrespective of
the effect or consequence of its objection.” It is entirely irrelevant that the
Respondent’s representatives erroneously described its objection as a “veto”, 110
or that such description was adopted by the global media in describing the
fact of the Respondent’s objection. As the Respondent has put it, “[i]n order
to make out its case, the FYROM relies on certain statements by the Prime
MinisterandForeignMinisterofGreecestressingGreekoppositiontoFYROM’s
109 Memorial, para. 1.8; Reply, Chapter IV.
110 Counter-Memorial, paras. 5.53 and 5.55. Notably, the Respondent’s official governmental
websites,includingthoseofitsMinistryofForeignAffairsinAthens,ofitsEmbassyinWashington,
DC, and of its Consulate in San Francisco, posted and continue to display articles describing the
Respondent’sobjectiontotheApplicant’sNATOmembershipinBucharestasa“veto”.See,e.g.,:
Press Office of the Respondent’s Embassy in Washington DB,akoyannis on use of veto against
FYROM(16 November 2007): Reply, Annex 95; Embassy of the Respondent in Washington,
DC,Interview of Foreign Minister Ms. D. Bakoyannis on MEGA Channel’s evening news, with
journalist Olga Tremi on 4 March 200(5 March 2008): Reply, Annex 100; the Embassy of the
Respondent in Washington, DC, “Speech of FM Ms. Bakoyannis before the governing party’s
Parliamentary Group” (27 March 2008): Memorial, Annex 89; the Ministry of Foreign Affairs
oftheRespondent,MessageofPrimeMinisterMr.KostasKaramanlis(3April2008):Memorial,
Annex 99; the Respondent’s Ministry of Foreign AffairI, terview of Alternate FM Droutsas
on ‘Thema 98.9’ radio, with journalists B. Koutras & R. Bizogli (29October2009):Reply,
Annex 158; the Respondent’s Ministry of Foreign Affais,lternate Foreign Minister Droutsas’
interview on NET radio with journalist S. Trilikis (4 November 2009): Reply, Annex 159; and
the Respondent’s Ministry of Foreign Affairs, Interview of Alternate FM Droutsas in the “Real
News” daily (22.11.09) (22 November 2009): Reply, Annex 194.
- 50 -NATO membership, and claiming to have vetoed an invitation to the FYROM
to accede.” However, contrary to the thrust of the Respondent’s assertions in
its Counter-Memorial, theApplicant relies on those statements (amongst other
evidence) for the fact that they “stress[...] Greekopposition to [theApplicant’s]
NATO membership”, as acknowledged by the Respondent at paragraph 5.53
of its Counter-Memorial, not for the fact that they “claim[...] to have vetoed an
invitation to [theApplicant] to accede”.
112
2.47. It is equally irrelevant that NATO “does not know the word veto”:
the fact that the NATO Secretary-General has accurately stated that NATO
has no formal veto procedure, in no way equates to his denying the fact of the
113
Respondent’s objection, as the Respondent repeatedly misrepresents. Whatis
relevantisthattheRespondentobjectedtotheApplicantbeinginvitedtoaccede
to NATO membership at the Bucharest Summit, a fact confirmed by NATO
itself.14The Respondent cannot now, by some sleight of hand, seek to rely on
its own mischaracterization in formal NATO terms of its objection in order to
avoid the consequences of that objection.
Section IV. The Respondent Misrepresents theApplicant’s NATO
Membership as HavingAlways Been Predicated on Resolution of the
Difference Over theApplicant’s Name
2.48. TheRespondentcontendsthatfromtheverybeginningoftheApplicant’s
engagement with NATO in 1995 “it was well known that the FYROM’s
disagreementwithGreeceoveritsname…wouldhavetoberesolvedbeforethe
111 Counter-Memorial, para. 5.53.
112 Jaap de Hoop Scheffer: “Press Conference by NATO Secretary-General Jaap De Hoop
Scheffer after the informal Meeting of NATO Defense Ministers, with Invitees with non NATO
ISAFContributingNations”,Cracow,Poland,dated19February2009:Counter-Memorial,Annex
33. Although, see note 96supra, in which NATO makes clear that the objection by a Member
State can act as a veto.
113 Counter-Memorial, paras. 6.74 and 7.40.
114 See para. 2.20 supra.
- 51 - 115
FYROM would receive an invitation to begin accession”, and that “FYROM
understood, and there could have been under no misapprehension that, the
prior resolution of the difference on the name was a necessary condition for the
integration of the FYROM in both NATO and the EU” . That claim is wrong
on all counts and is contradicted by the historical record. First, in relation to
the Respondent itself: the Respondent’s decision to object to the Applicant’s
NATO membership in circumstances where theApplicant was to be referred to
no differently than in resolution 817 is of recent vintage. Second, in relation to
NATO:resolutionofthenamedisputehadneverbeenestablishedasacondition-
precedent for the Applicant’s NATO accession. As numerous statements by
NATOandbyotherMemberCountriesmakeclear,theresolutionofthedifference
over the name was simply never perceived to be “NATO’s business”.
A. T h r e sP d eN s r e f sl T A l lO WTh AP Pl iC AT OAC Ce d eTNATO
M eM Be r Pidu eT OTh edi f f e rNOCVe rTh N A Meis Th r e s uTlOf A
reCeN Ts TrATe g, NO TA Cr iTe iiMPO seds iN C1999
2.49. In 1999, when the Applicant’s MAP process began, and indeed until
at least 2005, the Respondent’s stance concerning the Applicant’s NATO
membership was that, pursuant to its obligations under the Interim Accord, it
would not object to the Applicant’s membership in international, multilateral
and regional organizations and institutions,including NATO, if the Applicant
was to be referred to in those organizations and institutions no differently than
in resolution 817. Indeed, in 2001, the Respondent’sAmbassador at its Liaison
Office in Skopje denied any suggestion that the Respondent might act to block
117
theApplicant’sNATOmembershipprocess. Contemporaneousstatementsby
the Respondent’s officials underscore the Respondent’s public support for the
Applicant’s accession to NATO as “a way for promotion of stability and peace
115 Counter-Memorial, para. 5.34.
116
Counter-Memorial, para. 5.36.
117 Responding to a rumour of “an alleged Greek action to block Macedonia’s integration into
NATO’s structures if the name issue is not resolved”, the Liaison Office asserted that it was “a
clear misunderstanding”: “Greek office says report on blocking of FYROM NATO, EU Bids
‘Misunderstanding’”,MIA Daily Report (25 January 2001): Reply, Annex 89.
- 52 - 118
in the region” , and as a reward due to theApplicant for all it had “suffered…
119
from the Kosovo crisis” .
2.50. In 2005, the Respondent’s public position still appeared to be that it
wouldnotobjecttotheApplicant’smembershipinorganizationsandinstitutions
under the provisional reference, pending resolution of the difference over the
Applicant’s name. Statements made by the Respondent’s Foreign Minister in
2005, set out in theApplicant’s Memorial, bear repetition in this regard:
“… Molyviatis told … reporters that the Greek government’s position
vis-à-vistheFYROMnameissuewascrystalclear…“Wehavetheright,
on the basis of the 1995 interim agreement, to oppose the neighbouring
country’saccessiontointernationalorganizationsunderanynameother
than that of ‘Former Yugoslav Republic of Macedonia’.” 120
2.51. The Respondent’s Prime Minister, Mr Karamanlis made this position
explicit in relation to the European Union in a speech in the Respondent’s
Parliament:
“[U]nder the 1995 bilateral Interim Accord, the neighboring country
agreedthatGreecehastherighttoobjecttoitsmembershipininternational
integrations if this is done under any other not agreed name but this -
FYROM. Consequently, and I would like to be very clear -the way to
integration into the European Union can proceed only in two cases:
either after a mutually acceptable solution or under the name FYROM.
There is no other way.” 121
118
“GreeceannouncessupportforMacedonia’sEntranceinNATOandEU M”I,A Daily Report
(23 May 2004): Reply, Annex 90.
119
The Ambassador went on to state that the Applicant had “deserve[d] to be rewarded” through
“steady and speedy integration in the direction that the country chb:id., note 117supra.
120
Press Office of the Embassy of the Respondent in Washington, DC, Press ReleasFe,
MolyviatisbriefspremierondevelopmentsinFYROMissue (12 October 2005): Memorial, Annex 68.
121 Statement made by the Respondent’s Prime Minister, Kostas Karamanlis, during a foreign
policydebateintheRespondent’sParliamenSt,ession of the Greek Parliament Held on 31 October
2005: Reply, Annex 68; see also: “PM on foreign offensivK,athimerini(1 November 2005):
Reply, Annex 164.
- 53 -2.52. The Respondent’s change of stance appears to have been linked to
recognition of the Applicant under its constitutional name by other countries,
including in particular, the United States. Indeed, on 4 November 2004, the
very day that the United States announced that it would henceforth call the
Applicantbyitsconstitutionalname,theRespondent’sspokesman,MrEvangelos
Antonaros, made the following statement:
“It is well known that the accession of a European country to the EU
or NATO requires the unanimous agreement of all existing members…
Greece will not be part of suchadecisionunlessacommonlyacceptable
solution [to the name dispute] is reached.” 122
2.53. A recent speech by the Respondent’s former Foreign Minister, Ms
Bakoyannis,indicatesthattheRespondent’sdecisiontoobjecttotheApplicant’s
NATO membership until such time as the difference over the name is resolved
was not in fact formalized until some time prior to the summer of 2007. In 123
such circumstances, it is unsustainable for the Respondent to assert that the
Applicantcouldandshouldhaveunderstoodin1999thattheRespondentwould
act nine years later, contrary to its stated policy, to object to the Applicant’s
membership of NATO, in circumstances where theApplicant was to be referred
124
tointheorganizationnodifferentlythaninresolution817. Itisparticularlyso
incircumstanceswhereitappearsthatthepolicyadoptedbytheRespondentwas
122 Statement by Government spokesperson Evangelos Antonaros: “Greece May Block
Macedonia’s NATO, EU Bids Over Name Issue” D, ow Jones International News (5 November
2004):Memorial,Annex67.Seealso:“Athenswon’tbackFYROM’sEUandNATOentrywithout
mutuallyagreedsolution,gov’tsays”,thens News Agen( cyNovember 2004): Reply, Annex 91.
123 “We knew what strategy we would pursue on the Skopje issue even before the summer
of 2007. The decision had been made”: Respondent’s Ministry of Foreign Affai,eech of
FM Bakoyannis at an event hosted by the Constantine Karamanlis Institute for Democracy (16
February 2009): Reply, Annex 189.
124 See, e.g., “Athens will not dare apply veto”,Skopje Vreme(14September2007)which
testifies to the fact that, contrary to the Respondent’s claim, the Applicant did not believe that
the Respondent would act, in breach of its obligations, to block its accession to NATO on the
basis of the non-resolution of the name issue: Reply, Annex 94. See, also: “Athens won’t back
FYROM’s EU and NATO entry without mutually agreed solution, gov’t saysA ”,thens News
Agency(5 November 2004): Reply, Annex 91;
- 54 -theresultofacalculatedpoliticaldecision,largelyinreactiontotheApplicant’s
recognition by the United States under its constitutional name.
B. T h ere sOl uTiO NOf Td i f f e rOeVe rTh eAP Pl iC TsN A Med idN O T
CO NsTiTuTe A Pr-BuChAr e TNATOA C Ce si C r iTei N
2.54. ContrarytotheRespondent’sassertions,theclaimbeforetheCourtconcerns
the Respondent’s objection to the Applicant being invited to accede to NATO
membership. It does not concern the subsequent and distinct Bucharest Summit
decision.TheCourtisnotaskedinanywaytoadjudicateonNATO’sdecisionsor
actions.However,giventhesignificantmisrepresentationsbytheRespondentinits
Counter-MemorialoftheApplicant’sengagementwithNATO,andofthedecision
reachedattheBucharestSummit,thefollowinginformationisnecessarytopresent
to the Court an accurate account of thefactsofthematter.Thisisparticularlyso
in circumstances where the Respondent erroneously asserts that the resolution
of the difference over the name constituted a NATO membership criterion that
the Applicant had failed to meet, the failure of which placed the Respondent
under a purported “obligation” to object to its membership in the Alliance.
2.55. The Respondent asserts that “NATO considered the resolution of the
outstanding issue to be a ‘performance-based standard’in the context of good-
neighbourliness,whichFYROMwouldhavetosatisfybeforebeinginvitedtojoin
theAlliance” andthat“the‘resolutionofoutstandingissues’asaconditiontojoin
126
theAllianceincludedtheresolutionofthenameissue” .Theseclaimsarewithout
basisinfact.Inordertoattempttosubstantiatethem,theRespondentpurportsto
rely in its Counter-Memorial on two key NATO pronouncements, which it both
misquotes and selectively quotes to such an extent as to distort their meaning.
2.56. The first pronouncement is the Final Communiqué, issued following the
Ministerial Meeting of the Council in Brussels in December 2007. A crucial
clause, edited from the Respondent’s citation of the document in its Counter-
125
Counter-Memorial, para. 5.39.
126 Counter-Memorial, para. 5.38.
- 55 -Memorial, commended the Applicant’s performance in the area of “mutual
cooperation”, and identified it as a model for other NATO Partner countries
to follow. 127Although the “promoti[on] of cooperation in the region, good
neighbourly relations, and mutually acceptable, timely solutions to outstanding
issues” were described in the communiquéas being “necessary for long-term
stability”intheWesternBalkans,neithertheynortheresolutionofthedifference
over the name was advanced as a condition for membership or “performance-
based standard” which theApplicant had not yet met. 128
2.57. The second NATO pronouncement on which the Respondent purports
to rely is a statement of 23 January 2008 by NATO’s Secretary-General, Mr de
HoopScheffer.TheRespondent’sCounter-Memorialredactsthisstatementsoas
toremovethefollowingcrucialclauseswhichunderscorethatthedifferenceover
thenamewasnotaNATOmatter:“[thenameissue,]whichisnotaNATOaffair.
ThisisMr.Nimetz,AmbassadorNimetz,undertheUNroofT . hisisnotaNATO
affair, NATO responsibility.” The Respondent’s deliberate redaction entirely
distorts the Secretary-General’s comments. Neither of the documents is in fact
capable of supporting the Respondent’s claim that resolution of the difference
overthenamewasapre-BucharestNATOmembershipcriterionfortheApplicant.
127 “We commend the three Membership Action Plan (MAP) countries for the level of mutual
cooperationachievedandweencouragethePartnercountriesintheregiontofollowthisexample”:
NATO Press Release, (2007) 130, inal Communiqué, Ministerial meeting of the North Atlantic
Council held at NATO Headquarters Brussels (7 December 2007), para 14: Counter-Memorial,
Annex 25. This is omitted by the Respondent in its citation of this statement: see Counter-
Memorial, para. 5.37.
128 The Council’s Final Communiqué following the Ministerial Meeting in Brussels on 7
December 2007did notinclude the expression “resolution of outstanding issues”, as purportedly
quoted at paragraph 5.38 of the Respondent’s Counter-Memorial; nor did the Communiqué state
that any such resolution constituted “a condition” for the Applicant to join the Alliance, as the
Respondent appears to assert in the same paragraph. The Communiqué simply stated: “In the
Western Balkans, Euro-Atlantic integration, based on solidarity and democratic values, remains
necessary. This involvespromotingcooperation in the region, good-neighbourly relations, and
mutually acceptable timely solutions to outstanding issues”: NATO Press Release, (2007) 130,
FinalCommuniqué ,MinisterialmeetingoftheNorthAtlanticCouncilheldatNATOHeadquarters
Brussels (7 December 2007), para. 14: Counter-Memorial, Annex 25.
129
NATO,Joint Press Point with NATO Secretary-General Jaap de Hoop Scheffer and the
Prime Minister of the former Yugoslav Republic of Macedonia, Nikola Gruev,s2i3 January
2008: Counter-Memorial, Annex 26, page 1.
- 56 -2.58. The Respondent’s claim that “[i]n the MAP Progress Reports on the
FYROMbetween1999andtheBucharestSummit,NATOunderscoredthatthat
State would have to satisfy the criterion of good neighbourly relations and it
would have to resolve all outstanding bilateral issues with any Member State of
130
theAlliance,beforeNATOcouldstarttheaccessionprocessfortheFYROM”
is simply wrong, and entirely unsubstantiated by any supporting material in its
Counter-Memorial. TheRespondenthasnotreferredtoasingleofficialNATO
documentorstatement,predatingtheBucharestSummitdecision,otherthanthe
two misquoted pronouncements dealt with above, in support of its contention
that the resolution of the difference over the name was a condition-precedent
for theApplicant to be invited to accede to NATO. It appears there are none. In
the 15 years of the Applicant’s involvement with NATO prior to the meetings
leading up to the Bucharest Summit inApril 2008, resolution of the difference
over the name wasnever raised with the Applicant by NATO as a condition-
precedentforitsmembershipoftheAlliance. Thisisquitesimplybecausethe
difference over the name was never perceived by NATO to be a NATO matter
and did not enter into the NATO membership framework. Statements by the
NATO Secretary-General, Mr de Hoop Scheffer, and by NATO spokesperson,
MrAppathurai, put this beyond doubt:
• “DEHOOPSCHEFFER:...Onthemainissue,youknowthatNATO
has... and is not seeking direct involvement, that is not NATO’s
business, that is not NATO’s affair. At the same time, of course, I
130 Counter-Memorial, para. 7.41.
131
Insofar as the Respondent purports to rely on the Ninth NATO MAP Progress Report
relating to the Applicant, a reportpostdatingthe Bucharest Summit, as having “identified the
difference concerning the name as an issue affecting good neighbourly relations”, this is yet a
further example of misrepresentation on the Respondent’s behalf. The Report in fact merely
records that “good-neighbourly relations remain crucial”, a statement with which the Applicant
agrees, and reiterates the text of the Bucharest and Strasbourgh/Kehl Summit Declarations relating
to the Applicant. It nowhere describes the difference over the name as an “issue affecting good
neighbourly relations”.
132 See, e.g., NATO On-line Library, “NATO’s relations with the former Yugoslav Republic of
Macedonia”,NATO Publication :Reply, Annex 2: This document maps the Applicant’s ongoing
cooperation with NATO under the MAP process, and its progress in certain key areas along its
route to NATO accession. Theonlymention of the difference concerning the name is in relation
to the Bucharest Summit decision in 2008.
- 57 - can express the hope as I’ve done many times before that there will
beasolutionforthenameissue.ButthatisinthehandsofMrNemitz
[sic] on behalf of the United Nations.And this is all that I should say
133
about the name issue.” [emphasis added]
• “Q.You said taking the three countries is part of stability, so what is
the sense of the veto, then?
APPATHURAI:This is a bilateral issue, of course. I am not the one
making that case, that’s abilateral issue, of course, between Skopje
and Athens.” 134[emphasis added]
2.59. IndividualNATOMemberCountrieshavealsoconfirmedthattheresolution
of the difference over the namedid not constitute a NATO condition-precedent
for the Applicant to be invited to begin accession talks to join NATO. See for
example, the following interview with the former United StatesAmbassador to
theApplicant, Ms Gillian Milovanovic:
“INA:ThenameissuecreatesconcernforMacedoniaasfarasitsNATO
membership. Does the announced veto from Greece continue to be an
impediment,demandingconcessionsbyofficialSkopjeforchangingthe
constitutional name of the country?
Milovanovic: The 1995 Interim Accord, which allows Macedonia’s
admissiontointernationalorganizationsunderaprovisionalname,remains
135
valid. The name issue is not one of NATO’s membership criteria.”
[emphasis added]
2.60. In the lead up to the Bucharest Summit, the Respondent persistently
sought to characterise the ongoing difference over the Applicant’s name, and
133 NATO,Joint Press Point with NATO Secretary-General Jaap de Hoop Shaeffer and the
PresidentoftheformerYugoslavRepublicofMacedonia,BrankoCrvenkovski (5 October 2007):
Reply, Annex 4.
134 NATO,Press Briefing by the NATO Spokesman James Appath( u5Mi arch 2008): Reply,
Annex 5.
135 Embassy of the United States of America in SkopjeI,NA news agency Skopje Interview
with U.S. Ambassador in Macedonia Gillian Milovanovic (13 February 2008): Reply, Annex 96.
- 58 -in particular, theApplicant’s failure to acquiesce to the Respondent’s demands
within the name negotiations, as a breach of ‘good neighbourly relations’, so
serious as to disqualify the Applicant from NATO membership until such time
as the difference is resolved to the Respondent’s satisfaction. It sought to
persuade other NATO Member Countries of that in meetings prior to and at the
Bucharest Summit; and, despite having failed in that exercise, it now seeks to
persuadetheCourtofthesameintheseproceedings.Itthereforeasserts,without
anysupportingevidence,that“NATOdeterminedthattheFYROM,inthelightof
the continued difference concerning the name of that State, had not fulfilled the
137
criteria”. That is simply untrue. To the contrary, faced with the Respondent’s
objection to the Applicant becoming a NATO member in accordance with the
regimesetoutinresolution817,NATOcouldnotreachaconsensusdecisionon
theApplicant being invited to accede to membership at the Bucharest Summit.
2.61. Despite the Respondent’s best efforts, NATO Member Countries did not
support its categorization of the ongoing bilateral difference over the name as
a breach of a ‘good neighbourly relations’membership criterion, debarring the
138
ApplicantfromNATOmembership. Repeatedstatementsbyrepresentativesof
136
The Respondent asserts in its Counter-Memorial that “the substantive accession criteria
established under the MAP” that the Applicant failed to fulfil is “the requirement that candidate
States “settle ethnic disputes or external territorial disputes including irredentist claims or
internal jurisdictional disputes by peaceful means in accordance with OSCE principles and
[...] pursue good neighbourly relations”: paras 5.25 and 7.36 of the Counter-Memorial, citing
Press Release NAC-S(99)66,Membership Action Plan (MAP,)dated 24 April 1999 (Counter-
Memorial, Annex 21). Notably, the Respondent did not seek to oppose the Applicant’s NATO
membership at Bucharest on the purported basis that there existed an extant “external territorial
dispute” between the Parties; indeed, such a claim would have been utterly unsustainable
in the face of repeated determinations by authoritative bodies that the Applicantdoes not
harbour any irredentist ambitions against the Respondent. It is also unsustainable in view of
the concessions made by the Applicant in an attempt to assuage the Respondent’s ill-founded
concerns (see, e.g., paras. 2.3 - 2.6 and 2.12 -2.13 of the Memorial, and corresponding footnotes).
137 Counter-Memorial, para. 7.41(7).
138 See: Memorial, notes 112 to 116. See also the testimony given to the United States House
ForeignAffairsSubcommitteeonEuropebyMrR.NicholasBurns,UnderSecretaryforPolitical
Affairs:UnitedStatesDepartmentofStatR e,eportonUnitedStates-GreekRelatio,nWs ashington,
DC (14 November 2007): Reply, Annex 70: “Macedonia should not be denied an invitation to
NATOforanyreasonotherthanfailuretomeetthesubstantivequalificationsforentry.InGreece,
some have raised the possibility of vetoing an invitation to Macedonia unless the “name issue”
is resolved. While the United States agrees on the importance of resolving the name issue, we
- 59 -otherNATOCountriesmakeclearthatintheirviewtheApplicah nt dfulfilledall
NATO performance-based criteria, but that its invitation to NATO membership
139
wasblockedbytheRespondent’sobjectionbasedonamatter“extraneous” to
the NATO membership procedure. As stated by the Slovenian Prime Minister:
“everybodyagreedthatMacedoniahadfulfilledallthemembershipcriteria”. 140
This was further underscored by the United States Secretary of State speaking
in Bucharest “there was no effort to suggest that Macedonia was not ready in
any other way, that it didn’t somehow meet the criteria.” The Dutch Foreign
Minister,MrMaximeVerhagen,alsomadeclear:“[a]namecannotbeanobjection
142
for the accession of a country”.
2.62. Importantly, the Respondent’s categorization was not accepted by
NATO. 143 This is made clear by the Bucharest Summit decision itself which,
far from suggesting that the Applicant had failed to meet NATO membership
criteria, commends the Applicant for its “commitment to NATO values and
Allianceoperations”.TheNATOSecretary-Generalhimselfexpressedhisregret
do not think that disagreement on the name alone is reason to block Macedonia’s membership in
international organizations.”
139 United States Department of State, aily Press Briefi, Tom Casey, Deputy Spokesman,
Washington, DC (31 March 2008): “... we believe that the decisions that are taken on NATO
membership out to be based on whether the countries meet the qualifications and criteria that
NATO has established for them. We certainly understand that the name issue is one that is out
there and is of particular concern to our friends and allies in Greece. But there certainly is no
plan to delay the NATO summit or delay decisions on membership because of this issue. What
we would hope would happen in the coming days is that there would continue to be work and
intense work on the part of both the Government of Greece and the Government of Macedonia
to come up with a resolution of this issue so that there would notextraneousreasons that
might affect Macedonia’s candidacy for membership”: Reply, Annex 117 [emphasis added].
140
Hristo Ivanovski, “Interview: Janez Jansa, Former Slovenian Prime Minister - Macedonia
was a Victim in Bucharest”, Dnevnik(21 March 2009): Memorial, Annex 105.
141
UnitedStatesDepartmentofState,WhiteHouseOfficeofthePressSecretP are,ssBriefing
by Secretary of State Condoleezza Rice and National Security Advisor Stephen Hadley (3 April
2008): Memorial, Annex 98 (emphasis added).
142 “Greece rejects Macedonia Nato bid”, BBC News (6 March 2008): Reply, Annex 104.
143
Insofarasthe“nameissue”wasraisedbytheSecretary-General,itw naostpresented by him
asconstitutingafailuretomeetany‘goodneighbourliness’criterion. Seefurther,“SeniorNATO
officials have said over the past few months that the name of Macedonia is not a precondition
for NATO accession”: “NATO urges Macedonia solutionB ”,alkanInsight.com(3 March 2008):
Reply, Annex 98.
- 60 -that the extraneous bilateral difference over the name he had described as “not
a NATO affair” had served to block consensus, stating: “I’ll not hide that, of
course, I would have hoped that we would have seen three invitations, but
there is the name issue… and that is the situation…”. It is inconceivable that
the Secretary-General would have expressed his regret in such a way had the
Applicant been debarred from acceding to NATO due to a failure on its behalf
to meet the membership criteria.
2.63. That NATO and NATO Member Countries were not prepared to accept
the Respondent’s characterization of theApplicant’s participation in the United
Nationsmediateddiscussionstoresolvethedifferenceoverthenameasafailure
of ‘good neighbourly relations’is unsurprising. TheApplicant has consistently
negotiated in good faith in the context of the name negotiations, and has
repeatedly shown itself willing to accept concessions concerning its name to
assuage the Respondent’s ill-founded concerns towards it. The very week
beforetheBucharestSummit,theApplicana tcceptedasabasisforasolution,the
eleventh hour suggestion put forward by Mr Nimetz in the context of the name
146
negotiationsofthe“RepublicofMacedonia(Skopje)”.Theproposal,described
byMrNimetzasa“reasonablecompromise” thatwas“fair”,honourable”,and
geographicallydistinct, wasflatlyrejectedbytheRespondentonthebasisthat
144 NATO Press Conference,NATO Secretary-General Jaap de Hoop Scheffer following the
North Atlantic Council Summit meeting (3 April 2008): Reply, Annex 7.
145 This is dealt with in greater detail in Chapter V, Section III(F) below.
146 See,e.g.:DonaldSteinberg,“WhichMacedoniaI?n”ternationalCrisisGroup(1 April 2008):
Reply, Annex 120; Harry de Quetteville: “Macedonia row overshadows NATO summiT th,e
Telegraph (2 April 2008): Reply, Annex 130; 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: Memorial, Annex 133. See
further Chapter V, note 396; and Spiegel online: “Greece Blocking NATO Expansion – Which
MacedoniaWasAlexandertheGreatFrom?” S,piegelOnline(29 March 2008): Reply, Annex 114;
and “Letter: Macedonia responds to GreeceT,he New York Time(s4 April 2008): Reply, Annex
180;and“Macedoniamullsnamechange”T ,heIndependent(29March2008):Reply,Annex179.
147 EmbassyoftheRespondentinWashington,DC ,NmediatorNimetz’scompletestatement
following Monday’s meeting(27 March 2008): Reply, Annex 175 and “No progress in row over
name of former Yugoslav Republic of Macedonia – UN envoyU ”,N News Centre(25 March
2008): Reply, Annex 112.
148
Ibid.
- 61 -itwas“farfromthegoalssoughtbyGreece”. Ratherthanacceptthisproposal,
whichconformedtotheRespondent’sdemandsfora“geographicqualifier”tobe
150
includedintheApplicant’sname, theRespondentdeterminedinsteadtofollow
through with its threat to object to theApplicant’s membership in NATO.
2.64. The March 2008 proposal by Mr Nimetz and the response by the Parties
thereto entirely undermines the Respondent’s characterization of the name
negotiations, as described at paragraphs 4.2 to 4.13 and 8.34 to 8.43 of the
Counter-Memorial and as dealt with in greater detail in paragraphs 5.86 to 5.88
below. The Respondent’s failure to even mention this proposal in its Counter-
Memorial is telling in the extreme.
2.65. That NATO and NATO Member Countries were not prepared to accept
that the Respondent’s description of the Applicant’s conduct in the context
of the United Nations negotiations, even taken at its highest, was capable of
constituting a failure of ‘good neighbourly relations’so serious as to debar the
Applicant from NATO membership is also unsurprising for another reason.
The existence of ongoing bilateral disputes between States, including those of a
seriousnaturebetweenaNATOMemberCountryandanaspirantState,doesnot
in fact serve to debar the aspirant State from NATO membership. For example,
the border dispute between Croatia and Slovenia was not considered by NATO
toconstituteaninsurmountableobstacletoCroatia’sNATOmembership,nordid
SloveniaseektoobjecttoCroatia’sNATOmembershipbyreasonoftheongoing
bilateral dispute between the two States. Similarly, the United Kingdom did not
object to Spain’s NATO membership, despite the ongoing bilateral difference
149
Embassy of the Respondent in Washington, DCP,M Karamanlis briefed on new Nimetz
proposal on FYROM name (27 March 2008): Reply, Annex 174 and “Greece dissatisfied with
UN proposal on Macedonia name”S , audi Press Agency (26 March 2008): Reply, Annex 173;
and Respondent’s Ministry of Foreign Affai, inister of Foreign Affairs, Antonio Milososki,
gives interview for the Greek newspaper ‘Eleftherotypia’ (10 August 2008): Reply, Annex 182.
150
See“Droutsas:GreeceNotAfraidofDirectContactWithFYROM G”,ekNews(25 January
2010):“Thereisonlyonesolution,asthisislaidoutbyournationalredline:Adefinitivecomposite
name with geographical qualification of the term Macedonia, for all purposes (erga omnes) and
for all uses”: Reply, Annex 195 and 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): Memorial, Annex 43.
- 62 -between the States concerning Gibraltar. Equally, the existence of bilateral
disputes between aspirant Member Countries has not proven sufficient to debar
their joint membership, as in the case of the Respondent andTurkey. None of 151
these bilateral disputes has prevented theAlliance from functioning effectively
and decisively. Indeed, if, notwithstanding the substantial differences between
the Respondent and Turkey, the countries’ foreign policies are in “sufficient
alignment such that th[ose] bilateral differences within the Alliance [do] not
interferewithorganizationaldecision-makingortheimplementationofdecisions
reached” , and are capable of demonstrating “a high degree of solidarity” , 153
it is simply absurd for the Respondent to suggest that the bilateral difference
between the Respondent and the Applicant concerning the Applicant’s name
could be capable of threatening “Alliance solidarity” . 154
Section V. Conclusions
2.66. As set out in the preceding paragraphs, the essential facts in relation to
the current proceedings are as follows:
• In a series of statements and démarches leading up to the Bucharest
Summit in April 2008, and at the summit itself, the Respondent
objected to theApplicant’s membership of NATO.
• The Respondent objected despite the fact that the Applicant was to
be – and had agreed to be – referred in NATO no differently than in
paragraph 2 of resolution 817.
• The objection was based on the fact that the ongoing difference over
the name between the Parties had not yet been resolved.
151 The Respondent and Turkey both received invitations to join NATO on the same date, on
18 February 1952.
152 Counter-Memorial, para. 5.7.
153 Ibid.
154 Counter-Memorial, para. 7.45.
- 63 -• The objection was an autonomous act of the Respondent, not an act
by NATO.
• The objection preceded, and is distinct from, the NATO Bucharest
Summit decision or any other action of NATO concerning
enlargement.
• Whenvoicingitsobjection,theRespondentdidnotbaseitsobjection
on any claim that theApplicant would use its constitutional name in
NATO.
• At no point prior to the Bucharest Summit did NATO’s criteria for
the admission of theApplicant to theAlliance require a resolution of
the bilateral difference over the name.
- 64 - CHAPTER III
THE COURT HAS JURISDICTIONAND THE CLAIMSARE
ADMISSIBLE
Introduction
3.1. In Chapter III of its Memorial the Applicant addressed the issue of
jurisdiction, concluding that “there can be no doubt that the Application is
admissible, that the Court has jurisdiction over the dispute that the Applicant
has referred to it underArticle 36(1) of the Court’s Statute andArticle 21(2) of
the InterimAccord, and that such jurisdiction extends to all the relief sought by
theApplicant”. 155
3.2. The Respondent has responded in Chapter 6 of its Counter-Memorial,
raising three grounds on which it objects to the jurisdiction of the Court, and
indicating in connection with one of these grounds certain alleged grounds of
inadmissibility (as addressed further below, at times the Respondent appears
somewhat confused as to whether its objections are to be treated as issues of
jurisdiction or admissibility). The Respondent’s submissions on the issue of
jurisdictionarelengthyandlackclarity,meldingtogetherdistinctissuessuchas
the interpretation of the InterimAccord, assessment of the facts and, sometimes
only incidentally, issues that are properly characterized as jurisdictional. The
Respondent’s three arguments appear to be as follows:
(1) The dispute before the Court concerns the difference referred to in
Article 5(1) of the Interim Accord, so that jurisdiction is excluded
byArticle 21(2) of the InterimAccord.
(2) Jurisdiction is excluded by operation ofArticle 22, which provides
that the InterimAccord “does not infringe on the rights and duties”
155 Memorial, para. 3.16.
- 65 - arisingfromagreementsinforcebetweentheRespondentandother
states or international organizations.
(3) ThedisputebeforetheCourtrelatestotheconductofNATOandits
members, not the Respondent, over which the Court does not have
jurisdiction.156
3.3. In order to establish a basis for these jurisdictional objections the
Respondent has been forced to recast the case, turning it into one that is not
before the Court.This is clear from the very first paragraph of the Respondent’s
ChapterontheCourt’sJurisdiction,paragraph6.1ofitsCounter-Memorial,which
contains fundamental factual errors that infect the entirety of its jurisdictional
argument. In that paragraph, the Respondent submits that:
“The FYROM claims that it has suffered an injury as the result of
NATO’s unanimous decision at the Bucharest Summit in 2008 not to
extend an accession invitation to the FYROM at that time, and that the
outcome of that meeting would have been in its favour but for Greece’s
alleged violation of Article 11(1) of the Interim Accord. The FYROM
would locate this alleged violation in NATO’s collective consensus
decision,communicatedintheBucharestSummitDeclarationof3April
2008, to postpone extending to the FYROM an invitation for NATO
membership.”
3.4. This paragraph contains at least three major mistakes of fact:
(1) The Applicant does not claim, and has never claimed, in these
proceedings that “it has suffered an injury as the result of NATO’s
unanimous decision”: the claim concerns onlythe Respondent’s act
of objection.
(2) The Applicant does not base its claim on an assertion that “the
outcome of the meeting would have been in its favour but for
156 Counter-Memorial, para. 6.99.
- 66 - Greece’s alleged violation ofArticle 11(1)”, a matter on which the
Court need not express any view: the claim is directed exclusively
at the Respondent’s act of objection.
(3) TheApplicanthasnot“locate[d][theRespondent’s]allegedviolation
in NATO’s collective consensus decision”: the violation is related
entirely to the Respondent’s distinct and prior objection, and that
does not require the Court to express any view on any decision that
may subsequently have been taken by NATO.
3.5. The Respondent’s approach is not subtle. However, it does have the
merit of emphasizing the point that these jurisdictional objections are closely
connected with the facts, and the need for the Court to address the jurisdictional
objectionsonthebasisofthefactsallegedbytheApplicant.TheApplicantnotes
with surprise that the Respondent has invoked the opinion of Judge Higgins, in
the Oil Platforms case, referring with approval her view that
“The Court should thus see if, on the facts as alleged by Iran, the
UnitedStatesactionscomplainedofmightviolatetheTreatyarticles.” 157
[emphasis added]
3.6. TheApplicanthasnoobjectiontoproceedingonthebasisofthisapproach
to the assessment of the Court’s jurisdiction.Yet, as described in Chapter II and
in further detail below, the Respondent has recast the facts to support its claim
that “the facts with respect to Greece’s behaviour as alleged by the FYROM
cannot plausibly be considered a violation of the Interim Accord”. 158It is
readily apparent, however, that to justify this conclusion the Respondent relies
on its version of the facts, not those alleged by the Applicant. The Court must
assess whether, on the facts as alleged by theApplicant and not the recast facts
invoked by the Respondent, the Respondent’s actions might violate the Interim
Accord.TheApplicantsummarizeditsviewofthefactsatparagraph2.72ofthe
157 See Counter-Memorial, para. 6.8 (citing Oil Platforms (Islamic Republic of Iran v. United
States of America,)I.C.J. Reports 1996 at p. 856, paras. 32 and 33).
158
Counter-Memorial, para. 6.12.
- 67 -Memorial. The Respondent has not put forward any evidence that undermines
the Applicant’s account. For the purposes of the issue of jurisdiction, the case
put forward by the Applicant relies on certain facts and legal submissions,
namely:
(1) In 1995 the Applicant and the Respondent concluded a bilateral
agreement (the Interim Accord) that provides for the jurisdiction
of the Court to resolve disputes thereunder.
(2) In a series of statements and démarches over the course of late
March/early April 2008 the Respondent violated Article 11(1) of
the InterimAccord, by objecting to theApplicant’s membership in
NATO in circumstances in which theApplicant was to be – and had
agreed to be – referred to no differently than in resolution 817.
(3) The Respondent disputes this interpretation of Article 11(1) of the
InterimAccord.
3.7. AsdescribedinChapterIIofthisReply,theApplicantsubmitsthatthereis
norealdisputebetweentheParties,thatthestatementsanddémarchesidentified
above occurredand that they were attributable solely to the Respondent (the
Respondent now seeks to distance itself from the statements and démarches of
its own former Prime Minister and former Foreign Minister, but does not deny
that those statements and démarches were made). Nor is there evidence before
theCourttosupporttheviewthatatthetimetheobjectiontotheApplicantbeing
invited to join NATO at the Bucharest Summit was made,it was based on the
single permissible ground for objection as set out inArticle 11(1) of the Interim
Accord.ButevenifthesefactscouldbeseriouslychallengedbytheRespondent,
it would not be relevant to the issue of jurisdiction; as the Respondent accepts,
for this purpose the task of the Court is simply to see if, on the facts as alleged
by the Applicant, the Respondent’s actions complained of might violate the
Treaty articles.
3.8. TherecanbenodoubtwhatsoeverthatthefactsasallegedbytheApplicant
are in plain violation ofArticle 11(1) of the InterimAccord. For this reason the
- 68 -Court’sjurisdictioniseasilyestablished.Againstthisbackground,andrecalling
the need to keep in mind the facts alleged by theApplicant, theApplicant now
turns to consider in more detail each of the three grounds put forward by the
Respondent to challenge the Court’s jurisdiction.
Section I. The Dispute Does Not Concern the Difference Referred to in
Article 5(1) of the InterimAccord and Is Therefore Not Excluded by
Article 21(2)
3.9. The Respondent’s first challenge to the Court’s jurisdiction is premised
on its claim that the dispute in fact relates to the “difference” on the name issue
referredtoinArticle5(1)oftheInterimAccord,suchthattheCourt’sjurisdiction
is excluded byArticle 21(2). 159Article 5(1) provides that:
“The Parties agree to continue negotiations under the auspices of the
Secretary-General of the United Nations pursuant toSecurity Council
resolution845(1993)withaviewtoreachingagreementonthedifference
described in that resolution and in Security Council resolution 817
(1993).”
3.10. Article 21(2) provides that:
“AnydifferenceordisputethatarisesbetweenthePartiesconcerningthe
interpretationorimplementationofthisInterimAccordmaybesubmitted
by either of them to the International Court of Justice, except for the
difference referred to inArticle 5, paragraph 1.”
3.11. The Respondent’s objection is contorted. Against all the evidence, the
Respondent begins by asserting that it did not “object” to the issuing of an
invitation to the Applicant for membership in NATO. But it proceeds to argue
that “even if Greecehad objected to the FYROM’s membership application at
the Bucharest meeting, the documents issuing from the summit make clear that
159 Counter-Memorial, para. 6.32-6.51.
- 69 -the failure to resolve the difference over the namewould have been the sole
160
reason”. AccordingtotheRespondent,itfollowsthatthe“exceptioninArticle
21(2) of the Interim Accord applies and the jurisdiction of the Court can not
extend to the FYROM’s claim”. 161
3.12. This argument suffers from a number of serious difficulties. First, it
is based on a misinterpretation of the object and purpose of Article 21(2). 162
As noted at paragraph 3.11 of the Memorial, the scope and overall grant of
jurisdiction by Article 21 is broad, allowing any difference or dispute relating
to any provision of the InterimAccord to be referred to the Court, subject to the
sole and narrow exception of “the difference referred to in [Article 5(1)]”. This
means that the parties have entrusted the Court with jurisdiction over a wide
range of issues that have arisen against the background of the difference over
thename,buthavenotentrustedtheCourtwiththetaskofactuallyresolvingthe
differenceoverthenameitself.TheRespondentdoesnotdisputetheApplicant’s
characterization ofArticle 21(2), to the effect that the “breadth of its scope, and
…theabsenceofproceduralorsubstantivelimitations”indicatethat“theParties
have established a particular and important role for the Court in assisting them
to resolve disputes that might arise.” 163It is plain that Article 21(2) gives the
Court a central role in ensuring that the parties comply with their obligations
in the Interim Accord. That central role would be undermined by the approach
proposed by the Respondent.
3.13. The only dispute excluded from the jurisdiction of the Court pursuant to
Article21(2)is“thedifferencereferredtoin[Article5(1)]”.AsArticle5(1)makes
clear, the “difference” in question is that described in the preamble to Security
Council resolution 817 (1993), and echoed in resolution 845, as “a difference
... over the name of [the Applicant]”. The Applicant has not referred to the
160 Counter-Memorial, para. 6.40 [emphasis added].
161 Ibid.
162
See Memorial, para. 3.11.
163 Memorial, para. 3.10.
164 Memorial, para. 3.13, citing resolution 817.
- 70 -Court for resolution of the difference over name. In the Memorial theApplicant
made clear that the difference over the name “continues to be the subject of
negotiations under the auspices of the United Nations”: the Respondent has not
challenged that fact. The Applicant asserted that nothing decided by the Court
wouldaffectthecontinuationofnegotiations,whichcontinuedafterthecasewas
filed at the Court: the Respondent has not challenged this fact. The Applicant
asserted that “[n]o Order or Judgment adopted by the Court could have legal
consequences for the continued conduct of those negotiations”: the Respondent
has not challenged that assertion either. The Applicant asserted that it did “not
invite the Court to express any view on the ongoing negotiations between the
PartiesunderArticle5(1),oronanyeventualoutcomeofthosenegotiations”: 165
this too is not challenged by the Respondent, even if it accuses theApplicant of
participatinginthosenegotiationsinbadfaith(anallegationtheApplicantfirmly
rejects). The Respondent sees the difference over the name as relevant to this
case because theApplicant “has not respected its obligation to find a resolution
tothenameissue”; however,thatallegation,whichconcernsthesettlementof
the “difference over the name”, is not one on which the Court needs to express
a view to resolve the actual dispute referred to the Court by theApplicant.
3.14. Inshort,thedisputethathasbeensubmittedtotheCourtdoesnotrequire
the Court to resolve the difference referred to in Article 5(1), or to express
any view on that matter (and in any event the Respondent has provided no
evidence in its Counter-Memorial, independent from its own statements and
pronouncements,tosupportitsassertionthattheApplicantisinbreachofArticle
5(1),anassertiontheApplicantstronglydenies).TheburdenisontheRespondent
to persuade the Court that the dispute put before the Court by the Applicant
requires the Court to resolve difference over the name. It cannot do so when it
accepts – by the silence of its pleading – that nothing the Court might say in its
Judgmentonthemeritscouldhaveanyeffectwhatsoeveronthedifferenceover
the name. In these circumstances the Applicant submits that the Respondent’s
first challenge to jurisdiction does not even get off the ground. The dispute
165 Memorial, para. 3.14
166
Counter-Memorial, para. 6.34.
- 71 -concerns the interpretation and application ofArticle 11(1): it does not concern
the difference over the name, nor does it require the Court to interpret or apply
Article 5(1).
3.15. Indeed, the effects of the Respondent’s first ground of challenge to the
Court’s jurisdiction would have far-reaching consequences for the Interim
Accord, and would effectively serve to deprive Article 21 of any practical
meaning or effect. It would remove the central role for the Court, as agreed by
the Parties in signing the InterimAccord: since the very purpose of the Interim
Accord was to enable the Parties to avoid difficulties posed by the ongoing
difference over the Applicant’s name, any dispute concerning any provision
of the Interim Accord is necessarily related to the name issue. Consequently,
pursuant to the first jurisdictional challenge put forward by the Respondent
any dispute related to the Interim Accord would fall to be excluded from the
jurisdiction of the Court pursuant toArticle 21(2).The merits of that argument
speak for themselves.
3.16. The argument is manifestly inconsistent with one of the fundamental
objects and purposes of the Interim Accord, namely the desire to find a way
to allow the Applicant to apply for and to become a member of the Council of
Europe and other “international, multilateral and regional organizations and
institutions of which [the Respondent] is a member”, including NATO and the
EuropeanUnion.IftheRespondentiscorrectinstatingthatArticle21(2)reserves
for it the right to object to theApplicant’s membership of NATO because of the
non-resolution of the difference over the name, then the very purpose of the
InterimAccord and itsArticle 11(1) is undermined.
3.17. The second difficulty faced by the Respondent is that its challenge is
based on an inaccurate factual record, which differs significantly from that
relied on by the Applicant; the Respondent accepts that it is the facts as stated
by theApplicant that have to be taken into account by the Court in determining
whetherithasjurisdiction.The“documentsissuingfromthesummit” 167express
167 Counter-Memorial, para. 6.40.
- 72 -theviewsofNATO,buttheseviewsarenotthesubjectmatterofthedispute.The
fact that NATO members issued a statement indicating that NATO membership
would be extended to theApplicant “as soon as a mutually acceptable solution
to the name issue has been reached”, does not transform a dispute between the
Parties as to the wrongfulness of the conduct underArticle 11(1) into a dispute
concerning the name issue. As set out in the Memorial and in this Reply, there
is a distinction between the objection for which the Respondent is responsible
(which is the subject of this dispute) on the one hand, and the effects of that
objectionontheNATOdecision(whichdecisionisnotthesubjectofthedispute
before the Court) on the other hand.
3.18. The documents that are relevant to this dispute are those emanating
from the Respondent, including those reflecting the statements of its own
PrimeMinisterandForeignMinister,assetoutinChapterIIoftheApplicant’s
Memorial and Chapter II of this Reply. These statements indicate without
ambiguitythatthedisputedoesnotconcern“thefailuretoresolvethedifference
overthename”.TheyconfirmthattheRespondent’sobjectiontotheApplicant’s
membership of NATO occurred in circumstances in which the Applicant was
to be referred to no differently than in resolution 817.
3.19. By this factual sleight of hand, the Respondent seeks to transform
the dispute put before the Court by the Applicant – a dispute concerning
the interpretation and application of Article 11(1) – into a different dispute,
namely one concerning the interpretation and application of Article 5(1) or
the difference over the name. But that is not the dispute before the Court. In
order to resolve the dispute before it, the Court does not have to express any
view on any matters addressed byArticle 5(1). Even if these may be relevant
tounderstandingthecontextinwhichthedisputehasarisen,theCourtdoesnot
have to express any view on the conduct of negotiations under the auspices of
the United Nations Secretary General, or the behaviour of either Party in the
context of those negotiations, or the reasons for the lack of resolution of the
difference over the name.These matters are simply not relevant to the dispute
before the Court.
- 73 -3.20. Moreover, the fact that the Respondent’s objection to the Applicant’s
membershipofNATOmayhavebeenareactiontonon-resolutionofthedifference
overthenameonthetermsdesiredbytheRespondentcannotofitselftransform
that failure into the subject matter of the dispute currently before the Court.
The subject matter of the dispute is the interpretation and application ofArticle
11(1) of the Interim Accord, including whether the Respondent can justify its
objection to NATO membership on the ground that the Applicant would “be
referredtoin[NATO]differentlythaninparagraph2ofUnitedNationsSecurity
Council resolution 817”. That is not to say that the Respondent’s motivation
for its objection is wholly unconnected to the dispute: the Respondent has put
no evidence before the Court to support a claim that its objection was based on
the sole ground permissible under Article 11(1). It did not argue when it acted
in March and April 2008 that it was motivated by the belief that the Applicant
would be referred to as a NATO member differently than in resolution 817.
This is fatal to its case. By arguing that its “hypothesised objection inescapably
relates to the ‘difference’”68over the name, the Respondent in effect confirms
that its objection was not motivated by the ground permitted byArticle 11(1).
3.21. Astheaboveparagraphsmakeclear,thedisputebeforetheCourtdoesnot
concerntheresolutionofthedifferencereferredtoinArticle5(1)andjurisdiction
is consequently not excluded byArticle 21(2).
Section II. Jurisdiction Is Not Excluded byArticle 22 of the Interim
Accord
3.22. The Respondent’s second jurisdictional challenge is premised on its
claim that the jurisdiction of the Court is excluded by operation ofArticle 22 of
the Interim Accord, a provision that it describes as “decisive” for the purposes
169
of this argument. At no point, however, does the Respondent actually explain
how precisely the terms of Article 22 might be said to have any jurisdictional
168 Counter-Memorial, para. 6.51.
169
Counter-Memorial, paras. 6.52-6.63, specifically para. 6.52.
- 74 -effect. The Respondent’s argument appears to be based on a misunderstanding
as to the difference between a claim as to jurisdiction, on the one hand, and a
claim as to interpretation of the InterimAccord, on the other.
3.23. Article 22 is located in Part F of the Interim Accord entitled ‘Final
Clauses’. It provides that:
“ThisInterimAccordisnotdirectedagainstanyotherStateorentityand
it does not infringe on the rights and duties resulting from bilateral and
multilateral agreements already in force that the Parties have concluded
with other States or international organizations.”
3.24. It will be readily apparent that Article 22 is silent about matters of
jurisdiction. It is also difficult to see on what basis it might be said to address
the issue of jurisdiction in some implicit way. As described in further detail in
Chapter V,Article 22 confirms that the InterimAccord:
(1) “is not directed against any other State or entity”, a proposition that
cannot possibly imply any agreement or understanding in relation
to the jurisdiction of the Court;
(2) does not affect the rights and duties of other States and entities
(and/or of the Parties arising under other international agreements),
a proposition that also cannot possibly imply any jurisdictional
limitationontheCourtinregardstotheinterpretationandapplication
of the InterimAccord itself.
3.25. TheclosestthattheRespondentseemstogettoanexplanationastohow
either of these two propositions might limit the jurisdiction of the Court is at
paragraph6.63ofitsCounter-Memorial.TheRespondentseemstoassertthat(i)
in some way the NorthAtlantic Treaty required it to object to the Respondent’s
application for NATO membership “because of the unresolved ‘difference’”,
that accordingly (ii) the Respondent’s objection “could not possibly constitute
aviolationoftheInterimAccord”,andthereforethat(iii)theApplicant’sclaims
are neither admissible nor subject to the jurisdiction of the Court.
- 75 -3.26. The Applicant has some difficulty understanding the logic of the
Respondent’s argument. Even assuming points (i) and (ii) to be correct (and
theyarenot,amatterthatisaddressedinChapterV),point(iii)wouldnotfollow.
The reason for that is that the issues addressed inArticle 22 go to the merits of
the dispute; to the extent that Article 22 is at all relevant, in reality it is being
invokedbytheRespondenttosupportanargumentthattheRespondent’sunlawful
objectionunderArticle11(1)issomehowexcusedbytheinterpositionofArticle
22. In order to make that argument, the burden is on the Respondent to prove
that its interpretation of Article 22 is correct and, further, that it has rights and
dutiesundertheNorthAtlanticTreatythattrumpitsobligationsundertheInterim
Accord. As described in Chapter V, neither claim is sustainable. However, the
essentialpointisthatthisargumentgoestothemeritsandisnotaboutjurisdiction.
3.27. The Court has frequently addressed confusions between arguments as
170
to jurisdiction and the merits, and it did so robustly in theAvena case . In that
case the United States argued thatArticle 36 of the 1963Vienna Convention on
Consular Relations “creates no obligations constraining the rights of the United
States to arrest a foreign national” and that the “detaining, trying, convicting
and sentencing of Mexican nationals could not constitute breaches of Article
36,whichmerelylaysdownobligationsofnotification.Accordingly,theUnited
States argued that Mexico’s interpretation of the 1963Vienna Convention went
beyond the jurisdiction of the Court. This was rejected by the Court:
“For Mexico to contend, on this basis, that not merely the failure to
notify, but the arrest, detention, trial and conviction of its nationals were
unlawful is to argue in favour of a particular interpretation of theVienna
Convention. Such an interpretation may or may not be confirmed on the
merits, but is not excluded from the jurisdiction conferred on the Court
bytheOptionalProtocoltotheViennaConvention.Thesecondobjection
of the United States to jurisdiction cannot therefore be upheld.” 171
170 Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports
2004,p. 12.
171
Ibid. at p. 32 (see in particular para. 30).
- 76 -3.28. Adopting the approach of the Court, the Applicant submits that, for the
Respondent to contend that its otherwise unlawful objection is made lawful by
rightsarisingundertheNorthAtlanticTreaty,istoargueinfavourofaparticular
interpretationofArticles11(1)and22oftheInterimAccord.Thatinterpretation
may(or,intheApplicant’sview,maynot)beconfirmedonthemerits,butcannot
be a matter that is excluded from the jurisdiction conferred on the Court by
Article 21 of the InterimAccord.
Section III. The Dispute Relates to the Conduct of the Respondent, Not
the Conduct of NATO or its other Members
3.29. The Respondent’s third objection is weaker still. It asserts that the entire
case is in reality “directed against NATO”, which is not a party to the Statute
172
of the Court and hence outside the jurisdiction of the Court. In order to lay
the ground for this jurisdictional objection, the Respondent has been forced to
rewritethefactsandrecasttheclaim,attributingtotheApplicantargumentsand
claims that it has simply not made.
173
3.30. As noted throughout the Memorial, and addressed again in this Reply,
theApplicant’s case is directed exclusively to actions of the Respondent, not to
any decision by NATO or acts of any member of NATO except the Respondent.
The Applicant made its point crystal clear in paragraph 3.12 of the Memorial,
which is worth repeating in full:
“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
extendedaninvitationtobecomeaNATOmemberiscompatiblewiththe
172 See Counter-Memorial, paras. 6.64-6.98.
173
See, for example, Memorial, paras. 1.11-1.12.
- 77 - requirements ofArticle 11(1). This is a legal dispute that is premised on
thecontinuedapplicabilityofArticle11(1),andisconcernedexclusively
with the actions of the Respondent and its objection to the Applicant’s
application for NATO membership. The dispute before the Court does
not require the Court to address the actions of any third states or any
international organizations.”
3.31. TheApplicant’scaseisdirectedexclusivelyattheRespondent’sobjection
to the Applicant being invited to join NATO at the Bucharest Summit, an
objection that crystallized on 3April 2008.Any decisions by NATO following
that objection are not and cannot be the subject of these proceedings.As stated
repeatedly, the Applicant does not ask that the Court express any view on the
legality of any acts of NATO or any of its other Members by reference to the
standardsestablishedbytheInterimAccord.TotheextentthatanyactsofNATO
or any other NATO Members Countries are relevant, it is only in shedding light
on the Respondent’s objection, which is the subject of these proceedings. For
the avoidance of any doubt, the Applicant does not invite the Court to express
any view on the legality or propriety of the NATO Bucharest Summit decision.
TheonlyactthattheApplicantsubmitsthattheCourtmustassessforlegalityby
referencetoArticle11(1)oftheInterimAccordistheRespondent’sobjectiontothe
ApplicantbeinginvitedtoaccedetoNATOmembershipattheBucharestSummit.
3.32. TheRespondent’sobjectiontotheApplicant’sNATOmembership,which
crystallized in April 2008, is distinct from any decision taken by NATO. The
Respondent asserts that its acts are somehow attributable to NATO, 174but it
has provided no support or argument in support of that untenable proposition.
It asserts that “NATO did not breach any international obligation”: yet the
Applicant has never suggested that NATO might be in breach of any obligation.
The Respondent further asserts that individual members of NATO “cannot be
heldresponsiblefortheAlliance’sdecision”: yettheApplicanthasnottargeted,
174 Counter-Memorial, para. 6.71 et seq.
175
Counter-Memorial, para. 6.78.
176 Counter-Memorial, para. 6.83.
- 78 -directly or indirectly, any decision taken by NATO. For its part, the Respondent
cannotseektohidebehindtheNATOBucharestSummitdeclarationoranyother
statements or actions made or taken by NATO. This case is concerned solely
with the responsibility of the Respondent for its own, distinct objection to the
Applicant being invited to join NATO at the Bucharest Summit.
3.33. The Respondent has fallen into confusion as to the distinction between
the objection by the Respondent to theApplicant being invited to join NATO at
the Bucharest Summit, on the one hand, and the decision of NATO on the other
hand, which is consequential to, but juridically distinct from, the Respondent’s
objection. In these circumstances the Respondent’s arguments as to “the veil
effect” and the Monetary Gold principle are wholly irrelevant.
3.34. The Respondent’s third jurisdictional challenge, whether characterized
as an issue of jurisdiction or admissibility, is premised on a misreading of
the Applicant’s case, an erroneous appreciation of the facts, and fundamental
misconceptions of law. The challenge goes to the merits of the case – the issue
of which acts are being subjected to legal scrutiny – and not to the Court’s
exercise of jurisdiction.That jurisdiction plainly encompasses an assessment of
the facts relating to the Respondent’sobjectiontotheApplicantbeinginvitedto
joinNATOattheBucharestSummitandtheinterpretationoftheInterimAccord
and its application to those facts, and those facts alone.
Section IV. Conclusion
3.35. For the reasons set out above, each of the Respondent’s objections to
jurisdictionand/ortotheadmissibilityoftheApplicant’sclaimismisconceived.
They should be rejected by the Court.
- 79 - CHAPTER IV
THE RESPONDENT’S OBJECTION BREACHEDARTICLE 11(1)
OFTHE INTERIMACCORD
Introduction
4.1. In Chapter IVof its Memorial, theApplicant explained why the conduct
of the Respondent before and during the NATO Bucharest Summit meeting of
April2008violatedArticle11(1)ofthe1995InterimAccord.Article11(1)states:
“Upon entry into force of this Interim Accord, the Party of the First
Part [i.e., the Respondent] agrees not to object to the application by
or membership of the Party of the Second Part [i.e, the Applicant] in
international, multilateral and regional organizations and institutions
of which the Party of the First Part is a member; however, the Party of
the First Part reserves the right to object to any membership referred to
above if and to the extent the Party of the Second Part is to be referred
to in such organization or institution differently than in paragraph 2 of
United Nations Security Council resolution 817 (1993).”
4.2. The Respondent’s conduct with respect to NATO, recounted in Chapter
II, is precisely the conduct that Article 11(1) was designed to prevent – an
objection to the Applicant’s admission notwithstanding the fact that the latter
would be provisionally referred to in NATO no differently than in paragraph 2
of resolution 817.
4.3. In its Counter-Memorial, the Respondent introduces an array of points
about the meaning ofArticle 11(1) and its application to the facts of this case.The
Respondent’spointsareopaqueandattimespredicateduponconfusedreadingsof
history,suchastheassertionthattheApplicantwas“admittedtotheUnitedNations”
in 1993 “by virtue of the InterimAccord” (which was only concluded in 1995).77
177 Counter-Memorial, para. 6.43.
- 80 -Nevertheless,theRespondent’sapproachtoArticle11(1)canbedistilledintotwo
principallinesofargument.First,theRespondentarguesthatitsconductwasnotan
“objection” within the meaning of the first clause ofArticle 11(1). This argument
embracesthreegeneralpropositions:thatthemeaningof“object”inArticle11(1)is
narrowanddoesnotcover“withholdingofassent”;thattheRespondent’sconduct
was largely passive and did not rise to the level of an “objection” within Article
11(1); and that the real conduct at issue in this case is not that of the Respondent,
butrather,thatofeitherNATOorofNATOMemberCountriesactingcollectively.
All three propositions are patently wrong.
4.4. The Respondent’s second line of argument maintains that even if the
Respondent did object within the meaning of the first clause of Article 11(1),
that objection falls within the scope of the second clause of Article 11(1) and
thereforewaspermissible.Thisargumentisalsobuiltuponvariousunsustainable
propositions: that by referencing resolution 817, the second clause of Article
11(1)allowedtheRespondenttoobjecttoNATOmembershipsincetheApplicant
would have used its constitutional name in future relations with NATO; that
the second clause ofArticle 11(1) allowed the Respondent to object as a means
of “correcting” similar conduct by the Respondent in non-NATO international
organizations; and that the Applicant’s use of its constitutional name reflects
an “irredentist claim” that was prohibited by Security Council resolution 817
(1993). Each of these propositions is also incorrect.
4.5. SectionIofthisChapterdemonstratesthat,contrarytotheRespondent’s
claims,theRespondentdid“objectto”theApplicantbeinginvitedtojoinNATO
at the Bucharest Summit, within the meaning of the first clause ofArticle 11(1).
TheRespondent’snarrowrecastingofArticle11(1)renderstheprovisionlargely
meaningless and unable to prevent the mischief it was intended to address.
Further, the Respondent’s conduct in the period leading to and including the
Bucharest Summit fully fits within the Respondent’s narrow conception of “to
object”,fortheRespondentactivelyengagedineffortstopreventtheApplicant’s
membership. Finally, the Respondent’s purported effort to recharacterize the
conductatissueasbeingconductofNATO,andtherebytoshieldtheRespondent
from any responsibility for its objection, is unfounded in law and in fa▯ct.
- 81 -4.6. SectionIIdemonstratesthat,contrarytotheRespondent’scontentions,the
Respondent did not object to theApplicant’s membership in NATO on the sole
basispermittedbythesecondclauseofArticle11(1).Theonlybasisuponwhich
theApplicant reserved the right to object was in a situation where theApplicant
would be referred to within the relevant organization or institution “differently
than in paragraph 2 of United Nations Security Council resolution 817 (1993)”.
Since theApplicantis alreadyreferred to, and was to continue to be referred to
inNATO,nodifferentlythaninparagraph2ofUnitedNationsSecurityCouncil
resolution 817, the Respondent could not exercise any reserved right to object,
and its objection was therefore in breach of Article 11(1). Further, this section
demonstrates that, contrary to the Respondent’s position, theApplicant’s use of
itsconstitutionalnamewheninteractingwithNATO(oranyotherorganizationor
institution)cannotpossiblyberegardedasfallingwiththescopeofthesituation
contemplated in the second clause ofArticle 11(1).
4.7. Section III considers the various alternative justifications that the
Respondent has advanced for its objection, either contemporaneously to the
BucharestSummitorforthefirsttimeinitsCounter-Memorial.Ineachinstance,
thesereasonsdemonstrablyfalloutsidethescopeofthesecondclauseofArticle
11(1)and,assuch,cannotberelieduponbytheRespondenttoavoidresponsibility
foritsbreach. Tothecontrary,theyconfirmtheRespondent’sbreachofArticle11(1).
Section I: The Respondent Did “Object” to theApplicant’s Membership
in NATO within the Meaning of the First Clause ofArticle 11(1)
4.8. Chapter II recounted in detail the steps taken by the Respondent to
prevent the Applicant from being invited at the Bucharest Summit to become
a NATO member. This section deals with the Respondent’s argument that its
conduct did not constitute an “objection” within the meaning of the first clause
ofArticle 11(1) (which the Respondent refers to as the “non-objection clause”).
That clause provides:
- 82 - “Upon entry into force of this Interim Accord, the Party of the First
Part [i.e., the Respondent] agrees not to object to the application by
or membership of the Party of the Second Part [i.e., the Applicant] in
international, multilateral and regional organizations and institutions of
which the Party of the First Part is a member”.
4.9. Insupportofitsargument,theRespondentadvancesthethreepropositions
identifiedintheIntroductionabove.Asdiscussedbelow,noneofthesepropositions
is sustainable.
A. T h eOBl iATiO NNO TT O“O Bj eC” eN C O Mss eAsNy CO Nd uC ThA T
O PPOsesTh eAP Pl iC ’TsM eM Be r PiiNAN iN Te rN iO NlO r gA Ni zATiO N
4.10. The Respondent asserts that the term “to object” in the first clause of
Article11(1)isextremelynarrowinmeaning,coveringonly“aspecific,negative
act by Greece in an international organisation” undertaken through “active
178
conduct, not mere abstention or other withholding of assent.” In proposing
such a narrow interpretation, the Respondent seeks to exclude from Article
11(1) its systematic campaign of lobbying other NATO Member Countries in
opposition to the Applicant’s membership in NATO. In this campaign, waged
by the Respondent in the weeks and months preceding the Bucharest Summit,
the Respondent made clear that it would not join in a consensus decision at
the Bucharest Summit in favour of extending a membership invitation to the
Applicant. However, the Respondent’s narrow interpretation of the meaning of
“to object” is untenable given the ordinary meaning of the first clause ofArticle
11(1), read in context, and in light of its object and purpose.
1. The Text of Article 11(1)
4.11. Article 11(1) simply states that the Respondent “agrees not to object”.
As explained in the Applicant’s Memorial, the ordinary meaning is that the
178 Counter-Memorial, para. 7.14.
179 Memorial, paras. 4.22-4.28.
- 83 -Respondent is obligated not to engage in any act of disapproval or opposition to
theApplicant’sapplicationtoormembershipinanyinternationalorganizationor
institution. There are no limitations of the kind that the Respondent now seeks
to read into the words: it does not limit the term to cover only “specific” acts or
“negative” acts or acts that are “active” in nature. By attempting to inject such
terms intoArticle 11(1), the Respondentis trying to transform the languageinto
something like “agrees not to vote against” the Applicant’s membership. The
clause could have been written that way, but it was not.There is no reference to
narrow concept of a specific act of voting; rather, the much broader term “not
to object” was chosen.
4.12. Curiously, the Respondent points to the practice at the United Nations
Security Council for evidence of the meaning of “to object”, saying that there is
a difference between “active rejection” by a Permanent Member of a proposed
Security Council resolution on matters of substance (which blocks adoption of
a resolution) and “abstention” (which does not).180Apparently the Respondent
believesthatthisSecurityCouncilpracticeestablishesthattheactof“objecting”
at issue inArticle 11(1) must be comparable to a negative vote by a Permanent
Member.SinceUnitedNationsCharterArticle27doesnotprovidethatSecurity
Council resolutions are adopted unless “objected to” by a Permanent Member,
theRespondentcanfindnodirectsupportthere.Moreover,totheextentthatsuch
an analogue is at all relevant, it does not support the Respondent’s position.The
reasonaPermanentMembermightonlyberegardedas“objecting”toaproposed
resolutionwhenitcastsanegativevoteispreciselybecauseneitheranaffirmative
vote nor an abstention blocks adoption of the resolution. If, for example, an
abstention on admission of a new Member State to the United Nations also had
theeffectofblockingtheadoptionoftheproposedresolution,thenthecommon
understanding would be that the Permanent Member had “objected” to the
admissionofthatState,wheniteithervotedagainstorabstainedontheresolution.
Assuch,insituationswheretheRespondentblocksmembershipbyeitheractive
or passive conduct, then it has “objected” within the meaning of Article 11(1).
180 Counter-Memorial, para. 7.13.
- 84 -4.13. The Respondent invokes the specialized area of reservations to treaties
tosupportitsnarrowconceptof“toobject.”TheRespondentarguesthat,sincea
contracting State’s objection to a treaty reservation by another contracting State
undertheViennaConventionmustbeformulatedinwritingandcommunicatedto
othercontractingStates,thisshowsthat“objectto”cannotinclude“mereabstention
or other withholding of assent.” Here too the Respondent’s comparison is ill-
founded. The Vienna Convention is only concerned with written instruments;
henceitisnosurprisethatbothareservationalteringsuchaninstrument,andan
objection to its attempted alteration, must be formulated in writing. Further, the
reason for requiring that an objection be communicated to the other contracting
Parties is that, when a reservation is filed, in most instances it is deemed tacitly
accepted by other contracting States after the expiration of twelve months. Use
of a tacit consent procedure only can operate if the objection is communicated
directlytotheothercontractingStates.However,thereisnothinginherentabout
the words “to object” inArticle 11(1) that requires the formalities present in the
Vienna Convention with respect to objections to reservations; those formalities
are driven by the particular processes of that particular legal regime. ▯
4.14. TheRespondentalsoassertsthat,innegotiationsbetweentwoStates,the
182
conceptof“toobject”entailsa“formalcomplaint”. Objections,ofcourse,can
be made in various ways, including in the context of written communications
fromoneStatetoanother,butunderinternationallawtheconceptishardlylimited
to that form of objection. Indeed, the best that the Respondent can do to support
this proposition is to point to a 1938 letter by the Ruler of Qatar to the United
Kingdom,whichinfactdoesnotassertthat,underinternationallaw,anobjection
only exists in circumstances where a “formal complaint” is made. Rather, the
Qatari letter is simply an example of an objection being communicated by way
of a formal complaint.
4.15. Inordertobuttressitsremarkablynarrowinterpretation,theRespondent
seeks to disparage the ordinary meaning of “to object” in the first clause of
181 Counter-Memorial, para. 7.14.
182
Ibid.
- 85 -Article 11(1) by postulating that it would prohibit “a nod and a wink in the
corridor”,orsimilarconduct. TheCourtneednotexplorealltheoutermargins
ofwhatconductmightfallwithinthescopeofArticle11(1).Rather,theCourtis
confrontedwithparticularconduct(undertakenbytheRespondentin2007/2008)
arising in a particular context (the Applicant’s NATO candidacy), where the
Respondent engaged in numerous acts that were unambiguously intended to
block the Applicant’s entry into NATO, pending resolution of the difference
over the name. Such conduct plainly falls within the ordinary meaning of “to
object” inArticle 11(1).
2. The Object and Purpose of Article 11(1)
4.16. This ordinary meaning of “to object” is consistent with the object and
purpose of Article 11(1). One of the main functions of the Interim Accord
was to allow the Parties tomove forward with normalized relations during an
interim period, notwithstanding the ongoing difference over the Applicant’s
name. As such, the Interim Accord was not a mere “ modus vivendi” 184or
185
“holding operation”, as the Respondent repeatedly claims. To the contrary,
the InterimAccord fundamentally altered the relationship that existed between
the Applicant and the Respondent prior to September 1995. It provided, for
example, for the Respondent’s recognition of the Applicant (Article 1), and
ended the crippling economic embargo imposed by the Respondent upon the
Applicant following the Applicant’s admission to the United Nations (Article
8).Article11(1)wasintendedtoenableandfacilitatetheApplicant’sintegration
intotheinternationalcommunity,includingthroughitsaccessiontointernational,
multilateralandregionalorganizationsandinstitutions.Itachievedthisobjective:
following the adoption of the Interim Accord, the Applicant was admitted to
numerous organizations and institutions (as set out in detail at paragraph 2.40
of the Applicant’s Memorial). This completely transformed the status quo that
existed at the time of the signing of the Interim Accord, when the Applicant’s
183 Counter-Memorial, para. 7..2
184
Counter-Memorial, paras. 3.39-3.40.
185 Counter-Memorial, paras. 1.10, 3.9, 3.10, 3.39, 3.41, 3.44, 7.68, and 7.90.
- 86 -membershipinsuchorganizationsandinstitutionshadbeencompletelyblocked
by the Respondent. 186
4.17. The Applicant’s inability to accede to international organizations in
the early 1990s, due to the Respondent’s objections, was addressed first by
resolution 817 and then byArticle 11(1) of the InterimAccord. In its Memorial,
the Applicant recounted the circumstances of its emergence as an independent
187
and sovereign State. The central issue, for the purposes of this case, was the
Respondent’s objection to the Applicant’s constitutional name (‘Republic of
Macedonia’), and its refusal to accept the Applicant accession to international
organizations under that name. Thus, although the Applicant had met the
conditions necessary for recognition by European Community (EC) Member
States,188they declined to grant recognition to the Applicant, under extreme
lobbyingbytheRespondent.TheRespondentalsolobbiedtodenytheApplicant
entryintoothermajorinternationalorganizationsandinstitutions,includingthe
United Nations and its specialized agencies, which would have enabled, among
other things, much-needed developmental and other assistance from the World
189
Bank. Due to concerns that the continued thwarting by the Respondent of the
Applicant’seffortstosecurerecognitionandentryintointernationalorganizations
andinstitutions,includingtheUnitedNations,wasdestabilizingfortheApplicant
and for the wider region, a number of United Nations Member States (led by
France,SpainandtheUnitedKingdom(“theTroïka”))pursuedstrenuousefforts
to find a practical and provisional solution to the situation.
4.18. That provisional solution took the form of theApplicant’s admission to
the United Nations (and subsequent admission to United Nations specialized
agencies) pursuant to a regime whereby theApplicant was to be “provisionally
referred to for all purposes within the United Nations as ‘the former Yugoslav
186 Memorial, para. 2.38.
187
Memorial, paras. 2.2-2.15.
188 Memorial, para. 2.13
189 United Nations Security Council resolution 817 (1993) (SC/RES/817) (7 April 1993):
Memorial, Annex 22.
- 87 -Republic of Macedonia’ pending settlement of the difference that has arisen
190
over the name of the State.” The language of resolution 817 did not resolve
the difference over the name, but did provide the opportunity for theApplicant
to participate in and benefit from membership in the United Nations and its
specialized agencies under a provisional “reference”, pending resolution of the
difference over the name. It also prompted wider recognition by States of the
Applicant’s sovereign status.
4.19. Between1993and1995,however,theRespondentcontinuedtoobjecttothe
Applicant’saccessiontointernational,multilateralandregionalorganizationsand
institutionsoutsidetheUnitedNations,incircumstanceswheretheRespondent,
as a member of the organization or institution, was able to take steps politically
or legally to block such accession. Such organizations and institutions included
the Council of Europe and the Organization for Security and Co-operation in
Europe (OSCE). Consequently, during the negotiations of the Interim Accord
in 1994 to 1995, the Applicant insisted on a clause to prevent the Respondent
from blocking its ability to apply for and secure membership in those and other
organizations and institutions. Article 11(1) of the Interim Accord therefore
provided that, so long as theApplicant was to be referred to in the organization
or institution in question no differently than in resolution 817, the Respondent
wasnottoobjecttotheApplicant’smembership,andwascertainlynottoengage
in conduct that would have the effect of preventing theApplicant from joining
such organization or institution. This was the explicit purpose ofArticle 11(1),
as acknowledged by the Respondent itself, which states that the,
“InterimAccordwasadoptedinordertostabilisethebilateralrelationsof
GreeceandtheFYROM,andtoallowtheFYROMaccesstointernational
institutions, but without prejudice to the eventual resolution of the
191
difference over the name by the two parties.” [emphasis added]
190 Note 189, supra.
191
Counter-Memorial, at para. 7.95.
- 88 -4.20. The narrow meaning of “to object” proposed by the Respondent would
defeat the object and purpose ofArticle 11(1). If the Respondent is correct that
“withholdingofassent”doesnotfallwithinthescopeof“toobject,”thenArticle
11(1) would provide no meaningful benefit to the Applicant in relation to any
of the major organizations and institutions of which it was most keen to secure
membership, such as the Council of Europe, the European Union, NATO, or
the OSCE. That is because each of those organizations and institutions only
admits new members based upon a consensus procedure; if the Respondent
werecorrectinassertingthatitcould“withholdassent”withoutviolatingArticle
11(1),thenitcouldcontinuetoobjecttotheApplicant’saccessiontoallofthese
organizations in a manner fully consistent with its Article 11(1) obligation. As
such, the Respondent’s narrow interpretation of “to object” in Article 11(1) is
wholly inconsistent with the object and purpose of that provision.
3. The Negotiating History of Article 11(1)
4.21. Tosupportitsnarrowinterpretationoftheexpression“toobject”inArticle
192
11(1)theRespondentinvokesthedraftinghistoryoftheprovision. Yetnothing
in the multiple draft formulations of the provision provides any support for the
Respondent’s claim. Every draft of the text from the 1993 draft Treaty to the3
adoptedtextoftheInterimAccordcontainedaprovisionplacinganobligationon
the Respondent to allow theApplicanttojoininternationalorganizations,either
incircumstanceswherethedifferenceoverthenamehadbeenresolved(e.g.,the
initial drafts) or in circumstances where the difference over the name had not
194
beenresolved(e.g.,theInterimAccord). Differentformulationswereproposed
to capture the Respondent’s obligation, variously expressed as not to “impede,”
192 Counter-Memorial, at paras. 7.18-7.19.
193
Proposed by Mr Vance and Lord Owen, who served as Co-Chairmen of the Steering
Committee of the International Conference on the former Yugoslavia: Memorial, para. 2.22.
See also: Annex V of the letter dated 26 May 1993 from the United Nations Secretary-General,
BoutrosBoutros-Ghali,tothePresidentontheSecurityCouncil,entitDlerdaftProposedbyCyrus
Vance and Lord Owen, 14 May 199,3UN doc. S/25855 (28 May 1993): Memorial, Annex 33.
194 For the successive texts, see Counter-Memorial, Annex 148. The one exception may be
a draft dated 13 April 1994, though, as Respondent notes, this version does not appear to be a
complete draft: Counter-Memorial, para. 7.18 and Annex 148.
- 89 -“hamper,” or “object,” or to “remove any objection” to, theApplicant’s efforts
to join international, multilateral and regional organizations and institutions, or
to “positively consider supporting the participation of” the Applicant in such
organizations and institutions. They all point in the same direction.
4.22. TheRespondentattemptstointerpret,inparticular,theshiftinformulation
from“endeavourtosupport”inthe1993drafttreaty totheformulation“notto
object” in the final version as somehow weakening the obligation underArticle
11(1), on the basis that an obligation to “support” is purportedly a broader
obligation than an obligation not to oppose. 196Yet, as theApplicant noted in its
Memorial, the transition is actually from a softer obligation upon Respondent
(“endeavourtosupport”)toafirmer,moredefinitiveobligation(“nottoobject”),
confirmingtheintenttoestablishaclearandunconditionalobligation.Theprior 197
drafts of Article 11(1) as introduced into evidence by the Respondent confirm,
rather than contradict, the ordinary meaning and purpose ofArticle 11(1).
4.23. The Respondent fully accepts that a “specific, negative act by Greece
in an international organization” falls within the scope of what is prohibited by
198
Article 11(1). Action by the Respondent to oppose or prevent a consensus
decision at an international organization, where such consensus is necessary
for the Applicant to secure membership,is such a “specific, negative act,” as
are steps taken by the Respondent to inform other members of an international
organization or institution that the Respondent will not permit such a consensus
decision to be reached. This is precisely the conduct in which the Respondent
engaged in relation to theApplicant being invited to become a NATO member
at the Bucharest Summit.
195
AnnexV,Art.11,oftheletterdated26May1993fromtheUnitedNationsSecretary-General,
BoutrosBoutros-Ghali,tothePresidentoftheSecurityCouncil,entitledDraftProposalbyCyrus
Vance and Lord Owen, 14 May 1993, UN Doc. S/25855 (29 May 1993): Memorial, Annex 33.
196
See Counter-Memorial, para. 7.17.
197 Memorial, para. 4.17.
198 Counter-Memorial, para. 7.14.
- 90 - B. Th er e sP d eN s CO Nd uC TiO PPOsiTiONT OTh eAP Pl iC ’TseffOrT T O
jOiNNATO W As A N“O Bj eC Ti” WiThiN Th M eA NiNg OfA rTiCl 11(1)
4.24. Having first sought, contrary to the ordinary meaning, object and purpose,
andnegotiatinghistoryofArticle11(1),tonarrowlyinterpretitsobligation“notto
object”, the Respondent alternatively seeks to assert that its conduct in 2008 falls
outside the scope of that obligation because it was essentially passive in nature.
Whilst seeming to have difficulty in stating exactly whatitid do in 2008, the
Respondentobliquelyindicatesthatitwas“[m]erelyadducingreasonsagainstsome
conduct,”whichwas“notpressedtothepointofoutrightopposition,”andtherefore
199
wasnotanobjection. Further,theRespondentsuggeststhatitmerely“explain[ed]”
or “[brought] to the attention of” other NATO members why theApplicant could
not be invited to become a member at the Bucharest Summit. As such, the
RespondentsaysthatitsconductcannotbeseenasatransgressionofArticle11(1).
4.25. This contorted characterization by the Respondent of its conduct is
entirely unpersuasive in the face of the compelling evidence before this Court.
As demonstrated unequivocally in Chapter II and inAppendix I of this Reply, in
theperiodleadinguptoandattheBucharestSummit,theRespondentarticulated
–bothtootherNATOMemberCountriesandpublicly–itstotaloppositiontothe
ApplicantbeinginvitedtoaccedetoNATO,untilsuchtimeasthedifferenceover
the name is resolved.The evidence of this opposition is compelling and copious,
based on speeches, interviews, letters and newspaper articles, many by the most
senior governmental officials of the Respondent, often made at official functions
or in official communications.As noted in Chapter II, this Court’s jurisprudence
indicatesthatsuchevidenceishighlyprobative,especiallyincircumstanceswhere
the contemporaneous statements made by the Respondent’s officials are adverse
to the position the Respondent now espouses in this case.
4.26. Moreover, this overwhelming evidence thoroughly undermines the
Respondent’s contention that it was merely “explaining” concerns or “adducing
199
Counter-Memorial, para. 7.14.
200 See, e.g., Counter-Memorial, paras. 7.36 and 7.54.
- 91 -reasons” with respect to theApplicant’s membership in NATO. The Respondent
was not passively observing events as they unfolded and was not casually
expressing or explaining its concerns. Rather, the unrebutted evidence plainly
establishes that the Respondent engaged in a determined and affirmative effort
to oppose theApplicant’s membership in NATO.
4.27. The Respondent’s conduct – whether characterized as blocking the
201
Applicant’sabilitytojoinNATO,“vetoing”theApplicant’sNATOmembership,
refusing to consent to theApplicant’s membership in NATO, or refusing to join
a consensus decision that would allow for an invitation to be extended to the
ApplicantatBucharest–alladdsupthesamething.TheRespondentspecifically
and deliberately exercised its power to preclude a NATO decision favourable
to the Applicant’s immediate accession to the organization, by telling other
NATO Member Countries, in the course of the consultative process, and at the
Bucharest Summit, that it opposed such a decision. In doing so, the Respondent
objected to theApplicant’s membership in an international organization within
the meaning ofArticle 11(1) of the InterimAccord.
C. T h eO Bj eC TiA rOs esOl e lfrO MTh e re sP Od eN’s CO Nd uC, NO TTh e
C O Nd uC TONATO Or O Th eNATO M eM Be rCOuN Tr i e s
4.28. Inafurtherefforttodenythatit“objected”totheApplicant’smembership
in NATO, the Respondent attempts to recast the nature of the Applicant’s
allegation.According to the Respondent, theApplicant’s case is not directed at
theRespondent’sconduct,butrather,attheconductofNATOasanorganization,
atthecollectivedecision-makingbyNATO,orattheconductofNATOMember
202
Countries generally.
201
As noted in Chapter II, Section III of this Reply, the Respondent makes much of the idea
that there is no formal “veto” procedure at NATO (Counter-Memorial, paras. 7.46 and 7.50). Yet
this case (and Article 11(1) of the Interim Accord) does not turn on the existence or exercise of
a formal “veto” by the Respondent. Rather, the case turns on whether the Respondent “objected
to” the Applicant’s admission to NATO, which it did.
202 See, e.g., Counter-Memorial, paras. 7.40, 7.49 and 7.53.
- 92 -4.29. AcentralproblemwiththisargumentisthattheApplicantmakesnosuch
allegation. As noted elsewhere in this Reply, the Applicant’s case is focused
exclusively upon the Respondent’s obligation underArticle 11(1) and upon the
Respondent’sconductinviolatingthatArticle.Thiscasedoesnotturnuponany
rules or procedures that may exist at NATO. Regardless of whatever decision
was reached by NATO at the Bucharest Summit, it wasthe Respondent who
had an obligation not to object to Applicant’s effort to join NATO and it was
the Respondent who nevertheless objected. The violation arises not from the
203
fact that theApplicant was not admitted to NATO, but from the Respondent’s
prior and distinct objection to the Applicant’s admission, the precise conduct
prohibited byArticle 11(1).
4.30. Moreover, the Respondent’s argument that its conduct in objecting to
the Applicant’s admission to NATO (or presumably to any other organization
or institution) cannot be deemed conduct attributable to the Respondent, but
insteadmustbeattributedtotheinternationalorganizationitself, 204isconsistent
205
neitherwiththemannerinwhichNATOfunctions, norwiththisCourt’sviews
as to the obligations ofeach Member State when deciding on how to vote in
the GeneralAssembly on the admission of new United Nations members. In its
advisoryopiniononConditionsofAdmission,theCourtstatedthatthe“question
put is concerned with theindividual attitude of each Member called upon to
206
pronounce itself on the question of admission.” The Respondent’s argument
is also inconsistent with the Respondent’s own representations to this Court
in the Conditions of Admission advisory proceeding, where the Respondent
focused on the right of each Member of the United Nations when voting on a
207
requestforadmission,notonthedecisionoftheorgansoftheUnitedNations.
203
See Counter-Memorial, para. 7.44.
204 Counter-Memorial, paras. 6.64-6.94 and 7.55-7.56.
205 Reply, Chapter II, Section III.
206
SeeAdvisoryOpinionontheConditionsofAdmissionofaStatetoMembershipintheUnited
Nations (Article 4 of the Charter), 28 May 1948, I.C.J. Reports 1947-8t p. 62 [emphasis
added].
207
Ibid.: Exposé du Gouvernement hellénique: “aucun Membre des Nations Unies, en
votant, … sur une demande d’admission d’un État non member de l’Organisation n’a le droit
- 93 -Furthermore,theRespondent’screativetheoryrendersArticle11(1)meaningless;
there is little value in imposing an obligation upon a State not to object when
participating in a decision on admission to an international organization if it is
not the “State” which is acting with respect to that decision.
4.31. The Respondent’s theory is also inconsistent with the general law of
internationalorganizations.Overthepastthirtyyears,forexample,theEuropean
Commission on Human Rights and the European Court of Human Rights have
considered applications by individuals directed against States Parties to the
EuropeanConventiononHumanRights,insituationswheretheconductadopted
by the defendant State related to the decisions or actions of an international
organization of which it was a member. The European Commission and Court
have consistently ruled that theycould pronounce on the responsibility of the
individual defendant State for its action or failure to act, 208 without passing
judgmentontheactsoftheorganizationconcerned,sincethelatterwasnotaparty
209
to the European Convention. While the situation before this Court is different
in nature to those proceedings (here, the Respondent is not acting pursuant to
an action or decision of an international organization), the same principle is at
issue:aninternationalcourtneednotrefrainfromissuingarulingontheconduct
of a member of an international organization just because the conduct relates to
that organization.
de donner un vote affirmatif tant qu’il ne s’est pas persuadé que l’Etat demandant l’admission
ait rempli toutes les conditions d’admission…” I.C.J. Pleadings, Part I, Section (C)(VIII), p. 21.
208 See e.g.M. & Co v. Federal Republic of German,yApplication No. 13258/87, 9 February
1990,D.R., vol. 64, 145;Heinz v. State Parties to the European Patents Convention, Application
No 21090/92, 10 January 1994,D.R., vol. 76-A, 125; Matthews v. United King, Application
No. 24833/94, 18 February 1999, at paras. 33-3; osphorus Hava Yollari Turzim Ve Ticaret
Anonim Sirketi v Ireland[GC], Application No. 45036/98, 30 June 2005, at paras. 15e5t seq.
209 SeeinparticularC.F.D.T.v.EuropeanCommunitie,sApplicationNo.8030/77,10July1978,
D.R., vol. 13, 240.
- 94 - Section II. Since theApplicant Was Not to Be Referred to in NATO
Differently than in Resolution 817, the Respondent’s Objection Did Not
Fall Within the Scope of the Second Clause ofArticle 11(1)
4.32. TheRespondent’ssecondlineofargumentwithrespecttotheinterpretation
of Article 11(1) focuses upon the reservation for the Respondent of a limited
righttoobjectinthesecondclauseofArticle11(1),whichtheRespondentrefers
to as the “safeguard clause.” That clause provides:
“...however, the Party of the First Part reserves the right to object to any
membershipreferredtoaboveifandtotheextentthePartyoftheSecond
Part is to be referred to in such organization or institution differently
than in paragraph 2 of United Nations Security Council resolution 817
(1993).”
4.33. Like the first clause in Article 11(1), this second clause has a clear and
ordinary meaning. It precludes the Respondent generally from objecting to
the Applicant’s “application” or “membership” in international, multilateral
or regional organizations or institutions. However, it allows the Respondent
to object to the Applicant’s “membership” if the Applicant is to be referred to
“in” the organization or institution differently than in resolution 817, pending
resolution of the difference over the name.
4.34. Section II of Chapter II demonstrated that theApplicant was referred to
in NATO as ‘the former Yugoslav Republic of Macedonia’ prior to 2008, and
that it would have continued to be so referred as a Member Country. Indeed, the
ApplicanthasbeenreferredtoinNATOnodifferentlythaninresolution817for
over 15 years, with respect to both the PfPprogramme and the MAP. Moreover,
theApplicanthadagreedthat,afterbecomingaNATOMemberCountry,itwould
continue to be so referred. When the Respondent objected to the Applicant’s
membershipinNATO,itneverstatedthatthereasonforitsobjectionwasabelief
that the Applicant would be referred to in NATO differently than in paragraph
2 of resolution 817 on accession to the organization.
- 95 -4.35. Inlightofthosewell-establishedfacts,unrebuttedbytheRespondent,the
legal consequence under the second clause of Article 11(1) is absolutely clear.
SincetheApplicantisalreadyreferredto,andwastocontinuetobereferredtoin
NATO no differently than in resolution 817, the Respondent was not entitled to
exercisethelimitedrighttoobjectreservedunderthesecondclauseofArticle11(1).
4.36. Unabletofititsobjectionwithintheordinarymeaningofthesecondclause
ofArticle11(1),theRespondentagainreachesforanextraordinaryinterpretation.
The Respondent now asserts in its Counter-Memorial, for the first time, that the
secondclauseofArticle11(1)allowstheRespondenttoobjecttotheApplicant’s
membership in NATO not just if the Applicant is to be referred to in NATO
differently than in resolution 817, but also if theApplicant does not call itself
‘the former Yugoslav Republic of Macedonia’in its dealings with NATO. The
Respondent’s theory is that resolution 817 requires the Applicant to cali ltself
by the provisional reference in its relations with the United Nations, since it
“establishes a provisional name, mandatory for the FYROM”. 210From this, the
Respondent contends that the fact that theApplicant did not, in 2008, call itself
bytheprovisionalreference,permittedtheRespondenttoobjectatNATOunder
the second clause ofArticle 11(1).
4.37. TherearethreekeyproblemswiththeRespondent’snoveltheory: (i)itis
not supported by the facts before this Court, (ii) it is not a correct interpretation
of resolution 817, and (iii) it is not a correct interpretation of the second clause
ofArticle 11(1).
210 Counter-Memorial, para. 1.8. The Respondent almost goes so far as to characterize the use
of the provisional reference as a condition for the Applicant’s admission to the United Nations,
which it was not. See Counter-Memorial, para. 2.25: referring to the “provisional name” as a
“majorstipulationattachedtoadmissionoftheFYROMtotheUN”.TheApplicantwasadmitted
to the United Nations based on the conditions set forth in United Nations Charter Article 4; no
other conditions were, or could have been, applied to the Applicant.
- 96 - A. P r iOr T OTiNsTiTuTiO NOf Th ePrO Ce e dN,Th ere sP d eN d idN O T
AsserT ThA TiTO Bj eC TiW AsB As e dO NThfA C TThA TThAeP Pl iC A N T
W Ou l CO NiNu eT C Al lTs e l fBy CTO NsTiTuTiOlNNAA Me iN ideAl iNg s
WiTh NATO
4.38. First,athresholdproblemwiththislegaltheoryconcernsthefactsofthis
case,andinparticularthepublicassertionsmadebytheRespondentleadingupto
and at the Bucharest Summit. If the Respondent had objected to theApplicant’s
admission to NATO on the grounds that the Applicant would continue to use
211
its constitutional name as a NATO Member Country, then that claim would
be reflected in the Respondent’s contemporaneous statements. Yet at no time
did the Respondent state that its objection to the Applicant being admitted to
NATO at the Bucharest Summit was based on the fact that theApplicant did not
and would not, as a NATO member, call itself ‘the former Yugoslav Republic
of Macedonia’in NATO.
4.39. Hence, even if the Respondent’s legal theory for interpreting resolution
817 andArticle 11(1) were correct (which it is not), the factual record does not
support the proposition that the Respondent objected on this basis. Rather, the
factual record demonstrates that the reason for the Respondent’s objection to
theApplicant’s admission to NATO was the lack of resolution of the difference
over the name.Yet, as indicated below in Section III(A),that was precisely the
basis of objection prohibited byArticle 11(1).
211
Counter-Memorial,para.7.91:“GreecehadamplegroundsforconcludingfromtheFYROM’s
behaviourintheUnitedNationsandineveryotherinternationalorganisationinwhichtheFYROM
would later secure membership that it would then insist (SC res 817 (1993) notwithstanding) on
denominating itself by a name other than the one it used for purposes of securing membership”.
See also Counter-Memorial, para. 7.93: “In the circumstances Greece was entitled to conclude
that the FYROM would be referred to within NATO, at least to some extent, differently than in
paragraph2ofSCres817(1993)”.SeeLetterfromtheApplicant’sPrimeMinistertothePresident
of the Security Council dated 24 March 1993, UN Doc. S/25541: Memorial, Annex 28.
- 97 - B. re sOl uTiO817 d Oe sNO Tr e q u i rTAhP Pl iC T OCAl liTs e l f
‘Th efOrMe ry u gOs lAr ePuBl iC OM A Ce dO ’iA
4.40. Neither the United Nations Security Council (in resolution 817) nor the
General Assembly (in resolution 47/225) required the Applicant to change its
constitutionalnamepriortoitsadmissiontotheUnitedNations,astepthatwould
have required amendments to the Applicant’s Constitution. Neither resolution
requiredtheApplicanttostopcallingitselfthe‘RepublicofMacedonia’,eitherinits
dealingswiththeUnitedNationsorotherwise.Rather,asresolution817indicates,
the Applicant was simply to be referred to “within the United Nations” by the
provisional reference. Strikingly, the Respondent’s Counter-Memorial contains
notasingleitemofdocumentaryevidenceinsupportofitscontraryinterpretation.
4.41. Indeed, it must be noted that resolution 817 is arecommendation by the
CouncilintheexerciseofitsresponsibilityunderUnitedNationsCharterArticle
4(2). As such, the resolution is concerned solely with the issue of whether to
admit a new United Nations Member State, not with the use by that State of its
constitutionalnameinitsexternalrelations,whetherincommunicationswiththe
UnitedNationsorotherwise.Indeed,theSecurityCouncilhasneverattemptedto
exerciseapowertoorderaStatenottouseitschosenname,anditdidnotinthis
case.AnysuchpowercouldonlybedeployedbasedupontheCouncil’smandatory
powers, powers that were not invoked in the course of adopting resolution 817.
4.42. Contrary to the Respondent’s assertion, resolution 817 did not purport
to create a newname for the Applicant. Rather the formulation of ‘the former
Yugoslav Republic of Macedonia’ was to serve as a descriptivedesignation
referringtotheState’spreviousstatuswithintheformerYugoslaviainorderforit
tobeidentifiablewithintheUnitedNations,pendingresolutionofthedifference
212
withtheRespondentoveritsname. Notwithstandingthataccommodation,the
constitutionalnameoftheApplicantwasandstillisthe‘RepublicofMacedonia’,
212 See Letter from the Applicant’s Prime Minister to the President of the Security Council
dated 24 March 1993, UN Doc. S/25541: “The Republic of Macedonia will in no circumstances
be prepared to accept the ‘former Yugoslav Republic of Macedonia’ as the name of the country”:
Memorial, Annex 28.
- 98 -and is recognized as such by a large number of States. This was made clear in a
non-paper, circulated by the Kingdom of Morocco (which held the presidency
of the United Nations Security Council in 1993) to all United Nations Security
Council Member States, along with a draft version of resolution 817:
“The draft resolution that I have submitted to you […] recommends
admission to the UN of the new State. For the purpose of responding
to the concern that I have expressed,the draft resolution envisages that
the state have a provisional reference in the UN (“the former Yugoslav
RepublicofMacedonia”).Thisisnotamatterofimposinganameonthe
newstate,orconditionsforitsadmissiontotheUN,bu ittmerelyconcerns
the manner in which it will be provisionally referred to in its activity in
the United Nations (plaque, official documents, “bluebook”…).” 213
4.43. This has recently been confirmed by Sir Jeremy Greenstock, former
AssistantUnder-SecretaryintheUnitedKingdom’sForeignandCommonwealth
Officein1993. TheUnitedKingdom(whichheldthePresidencyoftheEuropean
UnionfromJunetoDecember1992)co-draftedresolution817,alongwithFrance
and Spain, the other two members of the ‘Troïka’which led the efforts to find
a practical solution to enable the Applicant’s admission to the United Nations,
notwithstanding the difference over the name:
“It was understood in 1993, and determined by United Nations Security
CouncilResolution817,thatmembershipoftheFormerYugoslavRepublic
of Macedonia in the United Nations was based on the requirement that
the new member state would be officially and provisionally referred to
by that name by the United Nations. This meant, for example, that the
nameplate and all official UN documents would refer to the member
only by that name, until such time as the difference over the name had
been resolved.
213
Kingdom of Morocco,Non Paper(6 February 1993): Reply, Annex 12; due to the poor
qualityofthisdocument,acontemporaneoustranslationfromtheFrenchtexttotheMacedonian
language is appended, along with a translation of the Macedonian language text to English.
- 99 - However,this did not mean that the new member was required to refer
to itself orally or in writing by that provisional designation. It was, as
I recall, informally recognized thatthe new member would be likely to
continue to refer to itself by its own constitutional name, the Republic of
Macedonia. Similarly, it was understood that any third state might also
refer to the new United Nations member as it considered appropriate,
whetherbythecountry’sownpreferrednameorbytheagreedprovisional
214
referencethatwasdeterminedbyUNSecurityCouncilresolution817.
[emphasis added]
4.44. As the above paragraphs make clear, the provisional reference was
adoptedbytheUnitedNationstoassistwithpracticalorutilitarianarrangements
within the United Nations: how the Applicant would be listed as a Member
State; what name plates and plaques would be used for the Applicant; how
its documents would be circulated by the secretariat of the organization; how
correspondence from the United Nations to the Applicant would be addressed
andothersimilarmatters.Afteradoptionoftheresolution,theStatewasreferred
to – and continues to be referred to – within the United Nations as ‘the former
YugoslavRepublicofMacedonia’;itisnotreferredtoaseither‘FYROM’orthe
‘RepublicofMacedonia’.However,theUnitedNationsandotherorganizations
use the term ‘Macedonian’ in some circumstances, including, for example, to
refer to the “Macedonian Cyrillic” alphabet. 215
4.45. Resolution817wasnotintendedtochangetheApplicant’sconstitutional
name, nor to require the Applicant to use some other name or reference in the
United Nations, and did not do so. The Respondent’s assertion – made in a
214 Statement by Sir Jeremy Greenstock (29 May 2010): Reply, Annex 58.
215
See,e.g.,EighthUnitedNationsConferenceontheStandardizationofGeographicalNames,
27 August - 5 September 2002, eport on the current status of the United Nations romanization
systems for geographical names, E/CONF.94/CRP.81 (18 June 2002): Reply, Annex 18; and
Council of Europe, Director General, Memorandum(8 March 2007): Reply, Annex 69.
216
This is further reinforced by the French translation of resolution 817, relied upon by the
Respondent in its Counter-Memorial. The clause “for all purposes within the United Nations” is
translated “à toutes fins utiles à l’Organisation”, underscoring the practical and utilitarian nature
of the provisional reference.
- 100 -footnote of its Counter-Memorial in relation to resolution 817 – that the term
‘designation’and ‘name’are interchangeable is curious given that neither term
features within the text of the resolution. Rather, resolution 817 describes the
Applicant as “being provisionally referred to for all purposes” as the ‘former
Yugoslav Republic of Macedonia’. It is obviously beyond question that a term
used “to refer” to an entity or person is not equivalent to the name of said
entity of person: if the president of a country is referred to as “president”,
“president” cannot be said to be his/hername. Any suggestion to the contrary
is untenable.
4.46. Consistent with the Applicant’s use of its constitutional name when
applyingforadmissiontotheUnitedNations,theApplicantcontinued,afterthe
adoptionofresolution817(on7April1993)anditsadmissiontotheorganization,
to use its constitutional name in its dealings with the United Nations, including
in written and oral communications. 218 Two months later, when the Security
Council adopted resolution 845 (on 18 June 1993), it said nothing about the
Applicant’s practice contravening resolution 817.
4.47. ThepracticeattheUnitedNationsisthattheApplicantusesitsconstitutional
name, whereas the provisional reference is used within the United Nations,
includingondocumentsdistributedbytheSecretariat.Forexample,inFebruary
217 Note 33 to para. 2.25 of the Respondent’s Counter-Memorial. The French translation of
resolution817isalsoofnoassistancetotheRespondent:itspeaksof“cetÉd tetvantêtredésigné
provisoirement, à toutes fin utiles à l’Organisation, sous le nom d’ ‘ex-République yougoslave de
Macédoine’...” Such text expressly does not say “cet État devant être appellé provisoirement”: it
is not about what the Appellant is tocalledbut how it is to bedesignatedwithin the United
Nations. Article 1 of the Interim Accord refers to the provisional reference as a “designation”,
underscoring that the expression was neveirntended to be a newnamefor the Applicant. Indeed,
as one scholar has noted: “S’il est un principe incontesté en ce domaine, c’est celui du libre choix
par l’Etat lui-même du nom dont il entend être doté. Cette liberté de détermination du nom est
l’une des premières manifestations de souveraineté d’un Etat independent.” J.-P. Quéneudec, Le
nom et les symboles de l’Etat au regard du droit international, Mélanges en l’honneur de J.-P.
Puissochet, Pedone 2008, p.248.
218
See Letters Dated 27 and 29 May 1993, United Nations Doc. S/25855 and Add. 1 and 2:
Memorial, Annex34; and 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):
Memorial, Annex 33.
- 101 -1994,theApplicanttransmittedtotheSecurityCouncilastatementregardingthe
Respondent’s imposition of an economic embargo on theApplicant.The title of
thestatementindicatedthatitwasissuedbythe“GovernmentoftheRepublicof
Macedonia,”andtheApplicant’slettertransmittingthestatementtotheSecurity
Council referred to it as a “statement by the Government of the Republic of
Macedonia.” Neither the United Nations Secretariat nor the Security Council
rejectedthecommunication;rather,theSecretariatcirculatedthedocumentunder
the title of “Letter dated 17 February 1994 from the Permanent Representative
of the Former Yugoslav Republic of Macedonia”, consistent with the practice
that had developed. Indeed, inApril 1995, while the negotiations relating to the
InterimAccord were ongoing, theApplicant sent a letter to the United Nations
Secretary-General stating:
“ThenameofmycountryistheRepublicofMacedonia.Theapplication
of my country for admission to the United Nations was an application
submitted by the Republic of Macedonia (S/25147). Security Council
resolution817(1993)recommendstotheGeneralAssemblythattheState
whose application is contained in document S/25147, i.e., the Republic
of Macedonia, be admitted to membership in the United Nations. The
SecurityCouncilresolutiondoesnotandcannotcontainabanontheuse
of the name the ‘Republic of Macedonia’.” 220
4.48. The United Nations Secretariat circulated the letter as a document of the
Security Council, without seeking to change or challenge the repeated use by
theApplicant of its constitutional name.
4.49. The same practice developed – and still pertains – in all of the United
Nationsspecializedagencies,includingtheInternationalLaborOrganization,the
WorldHealthOrganization,andtheUnitedNationsEducational,Scientific,and
219
Letterdated17February1994fromtheApplicant’sPermanentRepresentativetotheUnited
NationstothePresidentoftheSecurityCouncil,UNDoc.S/1994/194(18February1994):Reply,
Annex 15.
220 Letter dated 5 April 1995 from the Applicant’s Permanent Representative to the United
Nations to the Secretary-General, UN Doc. S/1995/260 (6 April 1995): Reply, Annex 16.
- 102 -CulturalOrganization,whereintheApplicantisreferredtoundertheprovisional
reference but calls itself by its constitutional name. At no time in the period
between the adoption of resolution 817 in 1993 and the signing of the Interim
Accordin1995(orthereafter)didtheSecretariatoftheUnitedNationsorofany
of the specialized agencies ever decline to accept such a communication from
theApplicant. AndatnotimehastheSecurityCouncil,theGeneralAssembly,
or any other United Nations organ ever voiced official concern over, let alone
rejection of, theApplicant’s use of its constitutional name.
4.50. Consequently, at the time of the conclusion of the Interim Accord in
1995, there was a fully established institutional and State practice to the effect
that theApplicant’s admission to international organizations and institutions in
accordancewiththeregimesetoutinresolution817didnotrequiretheApplicant
to call itself by that provisional reference. That practice was, without question,
fully known to the negotiators ofArticle 11(1) of the InterimAccord.
C. Th eiN Te iMA C Cr dd Oe sNO Tr e q u i rTeAP Pl iC AT OCAl liTs e l f
‘Th efOrMe ry u gOs lAr ePuBl iC OM A Ce dO N’A
4.51. The Respondent’s theory finds no support in the Interim Accord either.
There is no provision in the Accord that denies to the Applicant the right to
call itself by its constitutional name, whether in internal, bilateral (with the
Respondent)ormultilateral(withotherStatesorwithorganizationsorinstitutions)
contexts.DespitetheclearlydevelopedpracticewithintheUnitedNationsandits
specializedagencies,inplacein1993to1995whentheInterimAccordwasbeing
negotiated,theRespondentneithersoughtnorreceivedanycommitmentfromthe
Applicantregardingtheuseofitsconstitutionalname(thisistobecontrasted,for
example, with the Respondent’s request for and receipt of assurances regarding
certain interpretations of theApplicant’s Constitution on a different issue ).
221 Memorial, para. 2.20.
222 See Interim Accord between the Applicant and the Respondent (New York, 13 September
1995), Art. 6: Memorial, Annex 1.
- 103 -4.52. TheRespondentnowattemptstoparsevariouspiecesofthesecondclause
of Article 11(1) (e.g., the use of “if and to the extent that” rather than just “if”;
theuseofthepassivevoiceinthephrase“istobereferredto”;andtheuseof“in
such organization” rather than “by such organization”) to establish a meaning
that–ifitreallyhadbeensointended–could(andshould)havebeenestablished
223
simply by writing the clause to say as much. Ultimately, from its contorted
reading,theRespondenttriestodevelopatheorythatthesecondclauseofArticle
11(1) allows the Respondent to object to the Applicant’s membership in an
organizationorinstitution,inwhichtheApplicantisreferredtonodifferentlythan
inresolution817,iftheApplicantislikelytocallitselfbyitsconstitutionalname
in its dealings with that organization or institution. 224Indeed, the Respondent
apparently goes so far as to assert that inArticle 11(1), theApplicant “promised
Greeceitwouldrefrainfromusing[theconstitutionalname]pendingsettlement
of the ‘difference’”. Yet the Respondent’s imaginative interpretation of the
secondclauseofArticle11(1)findsnosupportinthetext,context,orobjectand
purpose of the InterimAccord, or in the subsequent practice of the Parties.
4.53. Theordinarymeaningoftheclausedoesnotencompassarightofobjection
of the breadth now urged by Respondent. The text does not reserve a right to
object if the Applicant “is to be referred to in such organization or institution,
or intends to call itself in its relations with the organization or institution,
differently than” the provisional reference. The clause might have been written
that way, but it was not. Instead, the language addresses how the Applicant is
to be “referred to in such organization or institution”, not how it is to call itself.
4.54. At the time the clause was written and adopted, there already existed a
well-knowncontextforunderstandingit,intheformoftheApplicant’sadmission
to and practice in the United Nations beginning in 1993, and at several United
Nations specialized agencies thereafter. As noted above, the Applicant was
223 Counter-Memorial, paras. 7.59-7.65.
224
See, e.g., Counter-Memorial, para. 7.62: “it is not only the international organisation itself
which is to refer to the FYROM under that name but that the FYROM itself must do so”.
225 Counter-Memorial, para. 6.48.
- 104 -admitted to those organizations on the understanding that it would be referred
to in the organizations under the provisional reference, but was fully permitted
to call itself by its constitutional name as a member of those organizations and
did so. That provides ample context to disprove the Respondent’s ex post facto
interpretation of the second clause.
4.55. Afurther element of context is the express cross-reference in the second
clauseofArticle11(1)toresolution817.IfthisclauseofArticle11(1)wasintended
to radically deviate from the practice at the United Nations (i.e., if the intention
was to reserve the Respondent’s right to object to the Applicant’s membership
of international, multilateral and regional organizations and institutions unless,
in some fashion, it committed not to call itself by its constitutional name within
such organizations or institutions) then it would have done so. Many of the
minor drafting matters the Respondent seeks to make with respect to Article
11(1) – the use of “referred to” in the passive voice, etc. – are equally true of
resolution817,andyetthatresolutionledtoacceptanceoftheverypracticethat
the Respondent now claims to be impermissible.
4.56. The Respondent and the United Nations Secretary-General’s Special
Envoy, Mr Cyrus Vance, who (jointly with Lord Owen) drafted the 1993 draft
Treaty and who led the negotiations on the drafting of the InterimAccord (1993
226
to 1995) and on the name difference (1993 to 1999), were certainly aware
of the practice that existed at the United Nations in the period between 1993
and 1995. Indeed, on the day the InterimAccord was concluded, theApplicant
227
referredtoitselfasthe“RepublicofMacedonia”inalettertotheSpecialEnvoy
(sincethisletterwassentinrelationtotheInterimAccord,itprovidesimportant
context for interpreting Article 11(1)). If the United Nations Special Envoy
believed that theApplicant had undertaken not to call itself by its constitutional
name in its relations with the United Nations, either pursuant to resolution 817
226
Memorial, 2.21-2.24 and 2.30.
227 1891UNTS I-32193 at 17: Reply, Annex 58. A second letter was also sent by the Applicant,
againusingitsconstitutionalname,whichsimplyacknowledgedreceiptofaletterfromtheSpecial
Envoy, transmitting a copy of a letter by the Respondent (1891 S32193 at 14).
228 Article 31(2) of the Vienna Convention on the Law of Treaties.
- 105 -or to the Interim Accord, one would have expected the Special Envoy to react
adversely to the Applicant’s communication. Yet no such reaction occurred;
instead the Special Envoy acknowledged receipt and passed along a copy of
the letter to the Respondent. Similarly, if the Respondent believed that such a
communicationtotheUnitedNationsviolatedanyundertakingsbytheApplicant
in relation to resolution 817 or the Interim Accord, or the conditions of its
admission to the United Nations, one would have expected the Respondent to
immediatelyobjecttothecommunication. Again,theRespondenthasprovided
noevidencethatsuchareactionoccurred.Hence,thecontemporaneousconduct
ofthenegotiatorsoftheInterimAccorddoesnotcomportwiththeRespondent’s
view that those negotiators understood either resolution 817 orArticle 11(1) as
requiring the Applicant to call itself by the provisional reference as a member
of any international, multilateral or regional organization or institution.
4.57. TheRespondent’sinterpretationofArticle11(1)isfurtherunderminedby
MrMatthewNimetz,SpecialEnvoyoftheUnitedStatestothenamenegotiations
in1994and1995. 229HestatedatapressconferenceheldfollowingtheAccord’s
conclusion:
“The United Nations, in admitting the country, did not change the name
or give it a name. It uses a reference… [T]he United Nations did not
choose FYROM as a name. It just said, “Temporarily we will refer to
this country as the Former Yugoslav Republic of Macedonia,” ... just as
they might refer to us as the former British Colonies of NorthAmerica.
It does not mean that that is our name. It doesn’t mean that FYROM is
thenameofacountry. Itjustmeansthatthere’ssomedisagreement. And
internationally,untilthatagreementisresolved,internationalorganizations
and certain countries like the U.S. will not feel comfortable using that
namebecauseofthedelicacyoftherelationship. Soweuseatemporary
reference,butwedon’tpretendthatFYROMisthenameofacountry.[…]
229
Mr Nimetz subsequently became the United Nations Secretary-General’s Special Envoy to
the negotiations between the Applicant and the Respondent, following the resignation of Cyrus
Vance in 1999.
- 106 - [M]y understanding is that the United Nations refers to the country as
the Former Yugoslav Republic of Macedonia. But the people from that
country, when they talk about themselves, use their constitutional name,
RepublicofMacedonia.Andwehavefoundthistobethecase,thatthere
is no requirement for them to use a name that they don’t accept. But that
230
doesn’t mean that the organization accepts the name.”
4.58. The Respondent complains that the Applicant is using “subsequent
unilateral practice” so as to “curtail the scope of the Safeguard Clause,” for
“modification of the interim regime,” or to establish a “waive[r]” by the
231
Respondent of its rights. The Respondent claims that the Interim Accord is
a “holding operation”, which theApplicant is now seeking to change based on
subsequent practice. These points wholly misstate the Applicant’s position.
First, the relevant practice is not “subsequent” to the InterimAccord; it existed
priortoandatthetimeoftheconclusionoftheAccord.ThepracticeattheUnited
Nationsfrom1993to1995isrelevantcontextforunderstandingthemeaningof
Article11(1)atthetimeArticle11(1)wasadopted. Second,thepracticeisnot
“unilateral,”inthatitconcernsnotjusttheconductoftheApplicant,butalsothat
oftheorgansandsecretariatsoftheUnitedNationsanditsspecializedagencies.
4.59. AseparateelementofcontextrelevantforinterpretingthisclauseofArticle
11(1)concernsArticle1oftheInterimAccord,bywhichtheRespondentagreed
to recognize the Applicant as an independent and sovereign State based upon
234
the provisional reference of ‘the formerYugoslav Republic of Macedonia.’ If
230
“Foreign Press Center briefing with Ambassador Matthew Nimetz, special White House
Envoysubject:Macedonia-GreekagreementsW ”,hiteHouseBriefing(18September1995):Reply,
Annex 87.
231 Counter-Memorial, paras. 7.85, 7.88 and 7.90.
232
Counter-Memorial, paras. 1.10, 3.9, 3.10, 3.39, 3.41, 3.44, 7.68, and 7.90.
233 The Respondent acknowledges to this Court, without any qualification, “the FYROM’s
behaviour in the United Nations and in every other international organisation in which the
FYROM would later secure membership that it would then insist . . . on denominating itself by”
its constitutional name: Counter-Memorial, para. 7.91.
234
InterimAccordbetweentheApplicantandtheRespondent(NewYork,13September1995),
Art. 1, read in conjunction with the letter of 13 September 1995 from Karolos Papoulias, Greece
- 107 -the Respondent’s interpretation of Article 11(1) were correct, the Respondent
would have insisted that its recognition of the Applicant would also require
that the Applicant not use its constitutional name in its communications with
the Respondent. For if the Respondent, for some reason, could not tolerate the
Applicantjoiningorganizationsorinstitutionsinrelationtowhichitwoulduseits
constitutionalname,surelytheRespondentcouldalsonottoleratedirectrelations
withtheApplicantinwhichtheApplicantwouldcallitselfandcommunicatewith
the Respondent using its constitutional name. Yet the Respondent’s agreement
in Article 1 to recognize the Applicant based on the provisional reference did
not carry with it any expectation or obligation that, in its dealings with the
Respondent, theApplicant would call itself by the provisional reference.To the
contrary,onemonthlater,thetwosidesconcludedaMemorandumon“Practical
Measures”RelatedtotheInterimAccordinwhichtheyexpresslyagreedthatthe
Applicant would call itself by its constitutional name in official correspondence
with the Respondent, while the Respondent would refer to theApplicant by the
235
provisional reference set out in resolution 817.
4.60. Inotherwords,theRespondentexpresslyagreedthattheApplicantwould
continue in its external diplomatic relations with the Respondent itself to use
its constitutional name. This approach followed the practice in place within
the United Nations from 1993 onwards. Hence, at the time of the adoption of
the Interim Accord, the Respondent confirmed and extended to the bilateral
relationship the institutional practice that was established in the period between
the adoption of resolution 817 and the conclusion of the InterimAccord.
4.61. TheRespondentarguesinitsCounter-Memorialthatitsacceptanceofthe
Applicant’s use of its constitutional name in bilateral relations is not relevant to
the way in which the Applicant calls itself in multilateral settings, viewing the
formerasrelatingtoArticle5andthelatterasrelatingtoArticle11oftheInterim
Minister of Foreign Affairs, to Cyrus Vance, Special Envoy of the United Nations Secretary-
General, 1891 UNTS I-32193, at 12: Reply, Annex 58.
235
Memorial, para. 2.36 and Memorandum on “Practical Measures” Related to the Interim
Accord of New York of September 13, 1995 (Skopje, 13 October 1995): Memorial, Annex 3, at
p. 3; see also Counter-Memorial, para. 3.33.
- 108 - 236
Accord. The point is not that the Applicant’s ability to use its constitutional
name in diplomatic communications with the Respondent somehow governs
the meaning of Article 11(1); the point is that the Respondent’s interpretation
ofArticle 11(1) is wholly out of step with the broad context under whichArticle
11(1) was adopted. The Applicant has never been required to call itself by the
provisionalreferenceattheUnitedNations;hasneverbeenrequiredtocallitself
by the provisional reference at United Nations specialized agencies; has never
been required to call itself by the provisional reference since the opening of
diplomatic relations with the Respondent in 1995; and since 1995 has not been
requiredtocallitselfbytheprovisionalreferenceatanyinternational,multilateral
or regional organization or institution to which it has secured membership,
includingtheOSCE,theCouncilofEurope,theOrganizationfortheProhibition
of Chemical Weapons, the European Charter for Energy, the Permanent Court
237
ofArbitration, and the World Trade Organization.
d. T h ere sP Od eN’sA s s riO NThA TTh A P Pl iC W AsTr e q u i r CTAl l
iTs e lTh efOrMe r yu gOs lAVrePuBl iC OM A Ce dO N’r uNs CO N rAryT OTh e
O Bj eC TA NPu rP Os eOf ThN Te iMA C Cr d
4.62. The Respondent’s interpretation of the second clause of Article 11(1)
is also inconsistent with the object and purpose of the Interim Accord. The
Respondent portrays the Applicant’s use of its constitutional name in dealings
with international organizations as establishing “anew name without Greece’s
participation in an agreed bilateral settlement” and as unilaterally imposing a
name without Greece’s consent. 238Yet the established practice at the United
Nations, in theApplicant-Respondent’s bilateral relations, and inArticle 11(1),
does no such thing. The solution preserves the Respondent’s position that the
constitutional name is not acceptable to it, by precluding the Applicant from
becomingamemberoforganizationsandinstitutionsincircumstancesinwhichit
willbecalledbythatname.Thisoutcomeisnot“unilateral”,giventhewidespread
236
Counter-Memorial, paras. 3.37 and 7.86.
237 Memorial, para. 2.40.
238 Counter-Memorial, paras. 7.63 and 7.94 [emphasis added].
- 109 -use of the provisional reference in international organizations. At the same
time, the solution preserves the Applicant’s position that it is entitled to use
the name adopted by its people in its external relations (as well as internally).
The Interim Accord and associated agreements, such as the Memorandum on
Practical Measures, expressly call for this outcome in reserving theApplicant’s
right to call itself by its constitutional name, including in its dealings with the
Respondent and with third parties.
4.63. Neither side is content with this interim solution, but neither side is
precluded from maintaining its position until a final resolution of the difference
over the name of the Applicant is reached. That was the object and purpose
of the Interim Agreement as a whole: to find a way to allow for pragmatic
cooperation bilaterally and multilaterally on an interim basis. It worked well
until the Respondent’s objection in relation to NATO membership.
4.64. Bycontrast,theRespondent’sinterpretationofArticle11(1)woulddeny
theApplicantentryintoorganizationsandinstitutionsunlessitchangestheway
in which it calls itself. This would mark a dramatic change in the balanced and
pragmatic approach. In order to participate in the international community of
States, theApplicant would be forced to begin calling itself in a way that it does
not accept, overturning a decade and a half of consistent, trouble-free practice.
Seeninthislight,itistheRespondent’snewinterpretationofArticle11(1)that,in
essence,wouldleadto“anewname”beingimposedupontheApplicantwithout
the mutual agreement envisaged in Article 5. As such, it is the Respondent’s
interpretation that is contrary to the object and purpose of the Interim▯Accord.
4.65. Interpreting the second clause of Article 11(1) in the manner advanced
by the Respondent also leads to an unreasonable and absurd result. Under the
Respondent’s approach, it would be granted the power to decide, in advance of
the Applicant’s admission to an international organization, how the Applicant
shouldcallitselfasamemberoftheorganizationorinstitution.Accordingtothe
Respondent, “Greece will necessarily have to estimate, based in particular on
theattitudeoftheFYROM,whetherandtowhatextenttheconditioncomprised
- 110 -in the Safeguard Clause is to be met.” Yet if such a determination were left
to the Respondent, the benefit of the first clause of Article 11(1) would be lost
to theApplicant.
4.66. Given the plain meaning of the second clause of Article 11(1), in its
context and in light of the object and purpose of the Interim Accord, there
is no need for the Court to turn to the negotiating history of the provision.
Nevertheless, the drafts of the clause confirm that the focus of the provision
is on the manner in which the Applicant was to be referred in international
organizations and institutions, not the manner in which the Applicant would
call itself. None of the drafts contains any language expressly or impliedly
supporting the Respondent’s interpretation. The Respondent attempts to find
significanceinawordingchangebetweenthefinaldraftsandtheadoptedtext, 240
but those changes simply addressed a technical problem. The 21 July 1995 and
21August 1995 drafts of the clause reserved a right to object if “the provisional
reference under which [the Applicant] is to be admitted to such organization”
differs from that of resolution 817, whereas the final text of the second clause
ofArticle 11(1) reserves a right to object if theApplicant “is to be referred to in
such organization” differently than in resolution 817. For the Respondent, this
change in language shows that the second clause is concerned not just with how
the international organization will refer provisionally to theApplicant, but also
how theApplicant will call itself before the international organization.
4.67. However,thechangewasnotforthereasonclaimedbytheRespondent.The
problemwiththedrafttextswasthattheApplicanttechnicallyisnot“admitted”
to an international organization under a “provisional reference”; it is simply
referred to provisionally in organizations and institutions by the reference ‘the
formerYugoslav Republic of Macedonia.’At a future point when the difference
over the name is resolved, the Applicant does not have to be admitted again to
therelevantorganizationorinstitution;rather,theApplicantremainsanexisting
239 Counter-Memorial, para. 7.64.
240
Counter-Memorial, paras. 7.70-7.72.
241 See Counter-Memorial, Annex 148, drafts (i) & (j), at Art. 11.
- 111 -member of the organization or institution, but no longer need be referred to by
theprovisionalreference.ThefinallanguageofthesecondclauseofArticle11(1)
correctlycharacterizesthemanneroftheApplicant’sadmissiontoorganizations
and institutions, as also occurred in the language of resolution 817.
e. Th efA C TThA TThAeP Pl iC C Al liTs e l fiTsC O NsTiTuTiO lNAA Me
dOe sN O A ssis Th r e sP d eN T
4.68. In short, the Respondent’s proposition that theApplicant must call itself
bytheprovisionalreferenceinitsdealingswithinternationalorganizationsfinds
no support in resolution 817, in the settled practice of the United Nations and
other organizations and institutions, or in Article 11(1) of the Interim Accord.
Moreover,theevidencebeforethisCourtconfirmsthattheRespondent’sobjection
in2008wasnotbasedupontheApplicantcallingitselfbyitsconstitutionalname
ininternational,multilateralandregionalorganizationsandinstitutions.Assuch,
the Respondent’s proposition that it was permitted to object to the Applicant’s
membership in NATO under the second clause of Article 11(1) due to the fact
thattheApplicantwouldnotcallitselfbytheprovisionalreferenceinitsdealings
with NATO has no basis in law or fact.
Section III: Other ReasonsAdvanced by the Respondent for Its Objection
Do Not Fall Within the Scope of the Second Clause ofArticle 11(1)
4.69. Having established that the Respondent did not object to theApplicant’s
membership in NATO for the sole reason permitted underArticle 11(1), it is not
necessary for the Applicant to prove, or for the Court to determine, why it is
that the Respondent in fact objected. Nevertheless, this section briefly assesses
the basis provided contemporaneously by the Respondent for its objection,
as well as a new basis advanced by the Respondent for the first time in its
Counter-Memorial. It also assesses certain general statements that permeate
the Counter-Memorial insofar as they are relied upon by the Respondent as a
furtherexplanationforitsobjection.TheprimaryreasonforwhichtheApplicant
- 112 -addresses these arguments is to demonstrate that they are as misconceived
factually as they are legally.
A. A rTiCl 11(1) d Oe N O TPe rMiT Th re sP d eN TT O Bj eC TOgNrOuNd s
ThA TTh edi f f e rNOVe rTh eA P Pl iC TsN A Meh AsN O TBe eNr e sOlVe d
4.70. The factual record establishes beyond any doubt that the real reason
for which the Respondent objected to the Applicant’s NATO membership at
Bucharest was the non-resolution to its satisfaction of the difference over the
Applicant’s name. As set out in detail at Chapter II, just weeks before the
Summit, the Respondent’s Prime Minister stated in Parliament: “Without a
mutually acceptable solution to the name issue, there can be no invitation to
participateinthe[NATO]alliance.” 24DaysbeforetheSummit,theRespondent’s
Foreign Minister, Ms Bakoyannis, writing in the International Herald Tribune,
assertedthat: “Wewillnotbeableto[supportinclusioninNATO]forFYROM,
243
however, as long as its leaders refuse to settle the issue of its name…” The
numerous other statements and official documents by the Respondent, other
NATOMembers,aswellasaccountsbyacademics,otherexperts,andthepress,
all confirm that this was the reason for the Respondent’s objection.
4.71. Indeed, the Respondent admits that “if the Court were to conclude that
GreecehadobjectedtotheFYROM’sapplicationformembershipinBucharest,
it is clear that the reason for the deferral of FYROM’s membership application
245
was the difference over the name.” Further, the Respondent states that the
“judgmentofGreecewithrespecttotheFYROM’scandidacytoNATOin2008
242 “Premier dangles FYROM veto”,Kathimerini(23 February 2008): Memorial, Annex 80
[emphasis added].
243 DoraBakoyannis:“TheviewfromAthens”I, ternationalHeraldTribune(31 March 2008):
Memorial, Annex 90 [emphasis added].
244 Appendix 1 to this Reply; see also Memorial, paras. 2.61-2.63.
245
Counter-Memorial, para. 7.91 [emphasis added]; see also Counter-Memorial, paras. 6.40
and 6.37.
- 113 -was made clear:the failure to achieve a negotiated settlement of the difference
246
concerning the name” meant that theApplicant could not join NATO.
4.72. The whole point of the Interim Accord was to create certain rights and
obligations of the Parties that would operate evenin the absence of a negotiated
settlementofthedifferenceoverthename.ThereasonArticle11(1)existedatall
was to develop a mechanism for theApplicant to join international, multilateral
and regional organizations and institutions during the period prior to a final
resolution of the name issue. It cannot be the case that any of the obligations
set forth in the InterimAccord can be negated because of a failure to resolve the
differenceoverthename,forthepurposewastoestablishobligationsthatwould
operate while the negotiation of that difference remained ongoing. 247 However
one might attempt to parse the meaning of Article 11(1), it cannot possibly be
interpreted as allowing the Respondent – having accepted an obligation on an
interim basis – to refuse to abide by that obligation because it is unhappy that
the interim period has not ended. The Respondent’s breach of Article 11(1) is
inescapable.
B. A rTiCl e11(1) d Oe sN O TPe rMiT Th ere sP Od eN TT O Bj eC TsO As T O
“C Or rC T”A Ny “B AlA N e Of N Te r ss” Of Th eiN Te iM AC C r d
4.73. TheRespondentadvancesanunusualandunsupportabletheoryastowhy
it was entitled to object to the Applicant’s membership in NATO. Under this
theory, not only must the Applicant meet the condition set forth in the second
clause ofArticle 11(1) in order for the obligation in the first clause to apply, but
the Applicant must also abide by the “larger bundle of rights and obligations
exchangedbythepartiesintheInterimAccord” ;inthissense,theRespondent
246 Counter-Memorial, para. 7.45 [emphasis added].
247 See, for example, the comments by Mr Vance, made on the day the Interim Accord was
signed: “Vance... conced[ed] “I can’t say I am confident that (a compromise name) will come.”
But he argued that today’s pact, officially called the Interim Accord, would not be derailed by
the lingering dispute. “The mere fact that they disagree about the name is not going to budge
progress,” he said: Farhan Haq, “Greece-Macedonia: both sides agree to end dispute, embargo”,
IPS-Inter Press Service (13 September 1995): Reply, Annex 86.
248 Counter-Memorial, para. 3.26.
- 114 -argues that the second clause ofArticle 11(1) “cannot be treated in isolation.” 249
In advancing this theory, the Respondent relies heavily upon a characterization
250
of the Interim Accord as a “synallagmatic agreement” and as a “holding
operation” 251and somehow divines from those talismanic characterizations a
conclusionthatthesecondclauseofArticle11(1)isa“correctivemechanism,” 252
one that allows the Respondent to respond to any “conduct in international
253
organisationswhichwasinconsistentwiththeprincipleofaninterimperiod.”
Inotherwords,theRespondentisentitledtoobjectunderArticle11(1)whenever
necessary to “correct” the Respondent’s allegedly wrongful conduct under any
other provision of the InterimAccord.
4.74. This argument finds no support whatsoever in any relevant source of
fact or law. First, just as it was incorrect to characterize the InterimAccord as a
holding operation, it is inappropriate to characterize the entire Interim Accord
as “synallagmatic agreement”, if by that it is claimed that fulfilment of each
obligation is somehow linked to the fulfilment of every other obligation (as
dealt with further in Chapter V, Section III(E) below).As the Respondent itself
254
recognizes in its Counter-Memorial, the Interim Accord like most bilateral
agreementsimposesaseriesofobligationsontheParties,someplaceaburdenon
theApplicant, some place a burden on the Respondent, and some place burdens
on both sides equally. For example, inArticle 7 theApplicant agreed to change
its national flag to address concerns raised by the Respondent, while inArticle
8 the Respondent agreed to lift the economic embargo it had imposed upon the
Applicant. In Article 2, both Parties commit themselves to the inviolability of
249 Counter-Memorial, para. 3.26.
250 Counter-Memorial, paras. 3.41, 3.49, 7.3, 8.15-8.18, & 8.61. The Respondent puts the
characterization of the Interim Accord as “synallagmatic” to service in advancing its argument
regarding the excepti, which is addressed in Chapter V, Section III of this Reply.
251 Counter-Memorial, paras. 3.9, 3.39-3.41, 3.44 and 7.68.
252 Counter-Memorial, para. 7.3.
253
Counter-Memorial,para.7.68;seealsopara.1.7.TheRespondentalsodrawsuponitsconcept
of a “synallagmatic agreement” in support of its argument concerning thexceptioprinciple,
which is addressed in Chapter 5(III) of the Counter-Memorial.
254
Counter-Memorial, paras. 3.42-3.43.
- 115 -their common border, while in Article 5 both Parties agreed to continue their
negotiations (while preserving their respective positions), under the auspices of
theUnitedNationsSecretary-General,withaviewtoresolvingthedifferenceover
thename.WhiletheInterimAccordasawholeobviouslyimposesobligationson
bothPartiesindifferentways,innosensearetheseobligations“synallagmatic,”if
bythatitismeantthattheobligationisdependentupontheotherParty’sfulfilling
of some other obligation. For example, it cannot possibly be correct that the
Parties’mutual commitment inArticle 2 to their common frontier is dependent
upon fulfilment of commitments made elsewhere in theAccord.
4.75. Second, it is an unexplained non sequitur to claim that because the
Interim Accord is “synallagmatic” or a “holding operation,” then Article 11(1)
givestheRespondentabroadlicensetopolicetheApplicant’sconduct,notonly
with respect to future membership in the specific international organization for
whichtheobjectionislodged,butalsotheApplicant’sconductinallinternational
256
organizations of which it is already a member. Thenon sequitur goes further.
Remarkably,theRespondentclaimstherighttobeabletoobjectasareactiontothe
conductofnotjusttheApplicant,butofanyStateorinternationalorganization.
FortheRespondent’sviewisthatthesecondclauseofArticle11(1)preservesthe
Respondent’s “right to react” to the “conduct of an international organization,
and of States in an international organization”, since that conduct “can have
significant effects on the crystallization of particular statuses or situations.” 257
255 See Counter-Memorial, paras. 3.41 and 3.48: asserting that in the Interim Accord “both
parties exchange engagements or considerations, those of each party being conditioned by those
of the other”. Of course, if one Party were to commit a material breach of a provision, the other
Party might be able to suspend or terminate its obligations under that or a different provision,
provided the relevant steps are taken under the law of treaties, but in this case “Greece has never
claimed any intent to suspend (let alone to terminate) in whole or in part the operation of the
Interim Accord…”: Counter-Memorial, para. 8.2.
256 Counter-Memorial, para. 7.68.
257 Counter-Memorial, para. 7.68: “The conduct of an international organisation, and of States
in an international organisation, can have significant effects on the crystallisation of particular
statusesorsituations.FacedwithconductwhichsuggeststhatthepermanentnameoftheFYROM
has been settled without regard to the bilateral settlement process, Greece’s right to react is
preserved. The Safeguard Clause is an essential protection, established so that Greece is not
prevented from taking steps to preserve the balance of interests which it is the design of the
Interim Accord as a whole to preserve”.
- 116 -Thus, if the Respondent is not content with the manner in which the United
Nations, the Council of Europe, China, the United States, or any other State or
organizationorinstitutionreferstotheApplicant,itcanobjecttotheApplicant’s
effort to secure membership in international organizations.
4.76. There is nothing in Article 11(1) to support the Respondent’s assertion
that it can object to the Applicant’s admission to any and all international
organizationswheneveritbelievesthattheApplicantisnotproperly“balanc[ing]
theinterests” oftheInterimAccord. Insupportofitsposition,theRespondent
principallypointstotheuseofthewords“ifandtotheextent”inthesecondclause
ofArticle11(1),ratherthanjusttheword“if”.AccordingtotheRespondent,this
languagedemonstratesthaa tftertheApplicantjoinsaninternationalorganization,
if“thereisanydefectionfromtheprovisionalnameregime”,then“thedefection
may be taken into account by Greece in determining whether the Safeguard
Clause applies to a new membership application or request to accede” in a
different organization.259The problem with this interpretation is that the second
clause ofArticle 11(1) is exclusively focused on reserving a right to object with
respecttoa(singular)“membership”inanorganizationorinstitution“ifandtothe
extent”thattheprovisionalreferenceisnotusedin(singular)“suchorganization
or institution” (emphasis added). In other words, the second clause of Article
11(1) is quite clear in reserving a right to object with respect to membership in
an organization based on whether the provisional reference will be used in that
organization,notbasedonwhetheritisbeingusedinotherorganizations.Noris
the Respondent’s interpretation supported by any other provision of the Interim
Accord, by theAccord’s negotiating history, or by the practice of the Parties in
the years following the conclusion of the InterimAccord.
4.77. Given that, as of September 1995, there already existed extensive
practice at the United Nations and its specialized agencies of the kind that the
Respondent now claims must be “corrected” (principally theApplicant’s use of
itsconstitutionalname),theRespondentisbasicallyurgingthisCourttobelieve
258 Counter-Memorial, para. 7.3.
259
Counter-Memorial, para. 7.60.
- 117 -that Article 11(1) had no real content; that it was always predicated upon the
Respondent’s own discretion in determining whether theApplicant (or for that
matter other States or international organizations) were properly “balancing the
interests” at issue in the Interim Accord. This argument as to the meaning of
Article11(1)’ssecondclauseevisceratestheobligationtheRespondentundertook
in the first clause. It is unreasonable and leads to an absurd result.
C. A rTiCl e11(1) dOe sN O TPe rMiT Th re sP Od eN TT OBj eC d u eT O
g eNe rAlA l l ATiO Ns OflA Ck Ofg O OdN e i hOr li e s s“ir r e eTi s”
4.78. At various places in its Counter-Memorial, the Respondent claims that
theApplicant’s use of its constitutional name has threatened peace and security
in the region, reflects “irredentist” or territorial claims against the Respondent,
and transgresses a general principle of good neighborliness. The purpose for
the Respondent in making such accusations is not entirely clear, but certain
statements by the Respondent’s suggest a possible link to its interpretation of
Article 11(1).
4.79. TheRespondentappearstoassertthatresolution817wasadoptedbecause
of a belief by the Security Council that theApplicant’s use of its constitutional
260
name threatened peace and security in the region. From this the Respondent
builds an argument that the United Nations denied theApplicant any use of its
constitutional name in its relations with the United Nations. The argument has
no merit, as set out in Section II of this Chapter.Yet – given the cross-reference
inArticle 11(1) to resolution 817 – the Respondent seems to be contending that
the Respondent is entitled to object underArticle 11(1) so long as theApplicant
continues to use its constitutional name, because doing so threatens peace and
security in the region.
260
See, e.g., Counter-Memorial, para. 2.15: “The Security Council, in SC res 817 (1993),
understoodthatsettlementofthedifferenceconcerningthenameisnecessary‘intheinterestofthe
maintenanceofpeacefulandgood-neighbourlyrelationsintheregion.’…Theseriousdifficulties
encountered in other parts of the former Socialist Federal Republic of Yugoslavia further drew
attention to the delicacy of the situation and the potential of irredentist claims, however stated or
implied, to destabilise international relations.” See also Counter-Memorial, paras. 2.16-2.20.
- 118 -4.80. Asafactualmatter,theApplicantdeniesthatithaseverengagedin,oris
engaging in, any behaviour that threatens regional peace and security, either by
usingitsconstitutionalnameorotherwise. Further,asalegalmatter,anysuch
theory wholly distorts the meaning of resolution 817, as the text and historical
and political circumstances surrounding its adoption make clear. There is no
basis for the Respondent to incorporate such a distorted meaning of resolution
817 into the second clause ofArticle 11(1).
4.81. Inthelead-uptotheadoptionofresolution817,nobodyorentityregarded
the Applicant as threatening international peace and security, as engaging in
“irredentist”behaviour,orotherwisefailingtoactinaccordancewithaprinciple
ofgood-neighbourliness,otherthan(apparently)theRespondent.Tothecontrary,
this view was firmly rejected by the Badinter Committee , which concluded that
“the Republic of Macedonia has... renounced all territorial claims of any kind
in unambiguous statements binding in territorial law” and that “the use of the
word‘Macedonia’cannot...implyanyterritorialclaimagainstanotherState.” 262
The Respondent seeks to downplay the importance and significance of the
Badinter Committee’s findings by erroneously describing them as an “attempt
at settlement”, 263yet they were nothing of the sort. Rather, they represented
the official legal opinion of an arbitration commission established by the
European Community to provide advice on applications for recognition made
byformerYugoslavstates. TheconclusionsoftheBadinterCommitteeremain
unchallenged and undisputed by the European Community and its Member
States (other than the Respondent). Indeed none of the official statements by
the European Community explicitly indicate that theApplicant’s constitutional
nameimplied“irredentist”,territorial,orotherclaimsagainsttheRespondentor
its neighbours.As the International Crisis Group has indicated in its assessment
of the early 1990s:
261 See,e.g.,theApplicantAideMémoire(2005),distributedtoNATOandEUmemberStates:
Reply, Annex 24.
262 Memorial, paras. 2.13-2.14, especially fn. 34 [Emphasis added].
263
Counter-Memorial, para. 2.15.
264 Memorial, paras. 2.10-2.13.
- 119 - “The EC’s reasoning had nothing to do with nationality relations inside
Macedoniaorwithitsneighbours.Atthattime,Macedoniahadthesmallest
potential for conflict of any successor state except Slovenia. Rather, its
southern neighbour, Greece, objected to Macedonia’s ‘appropriation’of
265
a name and symbols that it deemed exclusively Hellenic.”
4.82. The Respondent’s continued claim that the Applicant’s constitutional
name represents a threat to peace and security in the Balkans is as unfounded
and untenable today as it was in 1991. Indeed, in its entire Counter-Memorial,
includinginparticularthesectiondescribing“theNameasaProblemofRegional
Security”, 266the Respondent has not referred to asingle source other than itself
to support its unfounded claim that the Applicant’s constitutional name was or
is a “form of irredentist propaganda threatening to Greece and to other States
267
in the region”.
4.83. Nothing in the text of resolution 817 indicates that the Applicant’s
constitutional name was regarded by the Security Council as a threat to peace,
stabilityorgoodneighbourlyrelationsintheregion,orrequirestheApplicantto
acceptanamemandatedbytheRespondent.Preambularparagraph1indicatesthat
theSecurityCouncil“examined”theApplicant’sapplicationforadmissiontothe
United Nations.That application was madeusing theApplicant’s constitutional
name and directly referenced the adoption of the Applicant’s Constitution in
November 1991, 268so if the existence and use of the constitutional name was
a threat to peace and good-neighbourly relations, one might have expected the
265
InternationalCrisisGroup,“Macedonia’sname:whythedisputemattersandhowtoresolveit”,
InternationalCrisisGroupBalkansReportNo.122(10December2001)atp.12:Reply,Annex64.
266
Counter-Memorial, paras. 2.16-2.20.
267 Counter-Memorial, para. 2.18.
268 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): letter is from “the President of the Republic of
Macedonia” and there is a Declaration by the ‘Republic of Macedonia’ declaring that it “accepts
the obligations contained in the Charter of the United Nations and solemnly undertakes to fulfill
them”: Memorial, Annex 25.
- 120 -Security Council to say as much. Yet the Council did not. Instead, preambular
paragraphs 2 and 3 provide as follows:
“NotingthattheapplicantfulfilsthecriteriaformembershipintheUnited
Nations laid down inArticle 4 of the Charter,
Noting however that a difference has arisen over the name of the State,
whichneedstoberesolvedintheinterestofthemaintenanceofpeaceful
and good-neighbourly relations in the region [...]”
4.84. Preambular paragraph 2 underscores that theApplicanthad fulfilled the
criteria for membership in the United Nations, as laid down in Article 4 of the
Charter. Those criteria include that the Applicant be a “peace-loving” State
and that the applicant be willing and capable of carrying out its United Nations
269
obligations, including the obligations to settle disputes peacefully and not
to use force against any other State. In other words, the Security Council’s
judgmentwasthattheexistenceofthedifferenceoverthenameoftheApplicant
was not a basis for determining that theApplicant was not a peace-loving State,
nor that theApplicant was unwilling to carry out the purposes and principles of
theUnitedNationsCharter.TheGeneralAssemblyconcurredinthisassessment,
when it admitted theApplicant to the United Nations on 8April 1993, based on
271
a resolution co-sponsored by the Respondent. Hence, preambular paragraph
2 of resolution 817 belies the Respondent’s suggestion that the Applicant was
perceivedasanythingotherthana“peaceloving”State,orthatitsconstitutional
name,whichitretaineduponadmissiontotheUnitedNations,represented,orwas
perceived to represent, a threat to peaceful and good-neighbourly relati▯ons.
269 United Nations Charter, Art. 4(1);Conditions of Admission of a State to Membership in
the United Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948
at p. 62; see alsoCompetence of the General Assembly for the Admission of a State to the United
Nations, Advisory Opinion, I.C.J. Reports 1950at p. 7-10.
270 United Nations Charter, Art(s). 2(3) and 2(4).
271 United Nations General Assembly, Forty-seventh sessioA,dmission of New Members to
the United Nation, A/47/L.54 (7 April 1993): Reply, Annex 14.
- 121 -4.85. Further,thewordingofresolution817makesclearthatitwastd hiefference
concerning the Applicant’s name that was deemed capable of undermining
peaceful and good-neighbourly relations in the region, not theconstitutional
name itself. That “difference”, characterized by the Respondent’s opposition
to the Applicant’s constitutional name, for two years prior to the adoption of
resolution 817, had prevented the Applicant’s recognition as an independent
State, its integration into the international community and its ability to join,
or seek much needed financial assistance from international institutions and
organizations, in circumstances of extreme unrest and political and economic
crisis in the wider Balkan region.As stated by Mr Vance, Special Envoy of the
United Nations Secretary General, to the Security Council on 13 November
1992:“Macedonia,unrecognized,continuestosufferandgivescauseforserious
272
concern.” Theconcernonthepartoftheinternationalcommunitydidnotrelate
to an “irredentist” attitude by the Applicant; rather, the Respondent’s rejection
of the constitutional name was having negative and far-reaching consequences
not just for the fledgling State, but also for the Balkans region as a whole. As
noted by the United Nations Commission on Human Rights:
“[L]ack of international recognition may contribute to the disintegration
of the State and may cause inter-ethnic disturbances which may lead
to a military conflict with far-reaching consequences for the whole
region.”273
4.86. Indeed, it was theApplicant’s particular vulnerability and exposure to
tensionsandconflictintheregionthatwasofprimaryconcerntotheinternational
communitywhenresolution817wasadopted,notanypurportedvulnerabilityof
theRespondentinrelationtonon-existentterritorialambitionsonthepartofthe
Applicant. Therealthreattoregionalpeaceinquestionatpreambularparagraph
3 was the threatto theApplicant,arising from the political strife in the Balkans,
272
Cyrus Vance,Statement to the Security Council on the Situation in the former Yugoslavia
(13 November 1992): Reply, Annex 9.
273 United Nations Commission on Human Rights, Forty-ninth Sessini,tuation of Human
Rights in the Territory of the Former Yugoslavi,aUN Doc. E/CN.4/1993/50 (10 February 1993),
para. 254: Reply, Annex 13.
- 122 -theApplicant’sown“ethnicdivisions,”anditsgrowinginternalinstability“asa
resultoftheeconomicandpoliticalconsequencesarisingfromtheRepublic’s…
unrecognizedstatus”. Thisismadeclearinnumerousofficialreportsproduced
andstatementsmadeintheyearsandmonthsprecedingresolution817,describing
“thefesteringsituationinMacedonia[inwhich]economicandsocialconditions
have deteriorated and internal unrest is growing” , “the fragility and menace
276
of the [Applicant’s] surrounding international environment” , “developments
in its [the Applicant’s] border areas which could undermine confidence and
277
stability in Macedonia or threaten its territory”, the “tensions” which could
278
“increaseinKosovo”with“dangerousrepercussionsonMacedonia”, the“need
to take preventive measures to avoid the outbreak of violence in Macedonia
and Kosovo”, and the “tragedy of grave consequences” that would ensue “if
conflict were to break out in Macedonia”. 280
4.87. In short, the concern of the international community was not with any
“irredentism” of the Applicant, but with the perceived threatto the Applicant,
arising from the ongoing political unrest and bloodshed in the wider Balkan
281
region. Thus,theUnitedNationsProtectionForce(UNPROFOR)wasdeployed
274 RobinO’NeillR , eport to the President of the Council oifnM Minishelriss Papakonstantinou
(ed.)A Politicians Diary: The Involvement of Skopje, Third EditioEstia Booksotres, Athens)
(1 December 2001): Reply, Annex 63.
275
Cyrus Vance,Statement to the Security Council on the Situation in the former Yugoslavia
(13 November 1992): Reply, Annex 9.
276 ConferenceonSecurityandCo-operationinEurop Ree,port of the CSCE Rapporteur Mission
to the Former Yugoslav Republic of Macedonia (FYROM , ) SCE Communication No.183 (24
June 2003).
277 UnitedNationsSecurityCouncilR , eportoftheSecretary-GeneralontheFormerYugoslav
Republic of Macedonia , UN doc. S/24923 (9 December 1992): Reply, Annex 11.
278 Ibid., note 276 supra.
279 Personal Letter dated 18 September 1992 from Cyrus Vance and David Owen to the Co-
ChairmanoftheSecretary-GeneraloftheUnitedNations,DrBoutros-Ghali(18September1992):
Reply, Annex 8.
280
Ibid., note 278 supra.
281
As an example of the Respondent’s misleading characterization of this issue, consider
paragraph 2.25 of the Respondent’s Counter-Memorial, where the Respondent first notes the
adoption of resolution 817, and then asserts that “Constitutional amendments were enacted
to remove provisions that suggested an official State interest in the status of minority groups
- 123 -in December 1992 to the territory of theApplicant, “to monitor and report any
developmentsinitsborderareaswhichcouldundermineconfidenceandstability
282
in… [that Republic]… and threaten its territory”. As the terms of its mandate
makeclear,UNPROFORwasdeployedtoaddressathreatperceivedbytheUnited
Nations to the Applicant’s territory. 283The total absence in contemporaneous
United Nations documents of any reference to a threat – “implied” or otherwise
– on the part of the Applicant towards the Respondent or of any pressing need
for the Respondent’s territory to be monitored or protected against adverse
action from the Applicant, belies the Respondent’s remarkable assertion that
the Applicant’s constitutional name constituted a threat to the Respondent.
4.88. Given the severity of the situation in the Balkans in the early 1990s,
which threatened theApplicant’s territory in the period preceding the adoption
of Security Council resolution 817, it is not credible that the Respondent should
now self-servingly seek to minimize or deny the crisis in the region in order to
present itself as the injured party. The Applicant’s choice of its constitutional
namewasregardedbynoneoftherelevantactorsin1991-1993assuggestiveof
“irredentist” ambitions, or as a threat to peace, stability, and good neighbourly
relations in the region.As such, the Respondent’s reliance upon resolution 817
to support its view that theApplicant’s continued use of its constitutional name
– in 2008 – constituted a threat to peace and stability in the region, or reflected
a bad faith approach in the name negotiations, is wholly unsupported. It cannot
explain or justify the Respondent’s violation ofArticle 11(1).
and the territories they inhabit in neighbouring States.” Such a characterization implies that
these constitutional amendments occurred as a part of the adoption of resolution 817, yet those
amendments were in fact enacted on 6 January 1992, well over a year before the adoption of
resolution817,asapartoftheBadinterCommitteeprocess.Neitherresolution817northeInterim
Accord has anything to do with those amendments.
282 See the United Nations website: United Nations Department of Public InformUn,ited
Nations Protection Force, Former Yugoslavia - UNPROFOR, Profi ,evailable at: http://www.
un.org/Depts/DPKO/Missions/unpredep.htm (31 August 1996): Reply, Annex 17.
283 UnitedNationsSecurityCounciL l,etterdated23November1992fromtheSecretary-General
AddressedtothePresidentoftheSecurityCounc ,l N doc. S/24851 (25 November 1992): Reply,
Annex 10.
- 124 - Section IV. Conclusions
4.89. In light of the arguments set out above, there is no doubt that, when it
objected to the Applicant’s membership in NATO, the Respondent violated
Article 11(1) of the InterimAccord.
4.90. ThefirstclauseofArticle11(1)providesthattheApplicantwillnotobject
to the application or membership of theApplicant in international, multilateral
and regional organizations and institutions. NATO is such an international
organization, in relation to which the Applicant sought membership. Yet the
RespondentmadeitknowntoNATOmemberspriortoandduringtheBucharest
Summit in 2008 that the Respondent would not join a NATO consensus in
favour of the Applicant being invited to join NATO, until such time as the
difference over the name issue is settled. The Respondent boasted publicly that
it had blocked or “vetoed” the Applicant’s effort to join NATO. That conduct,
establishedbyextensiveevidence,includingstatementsbythehighestofficialsof
the Respondent, was an “objection” to theApplicant’s membership in NATO.
4.91. The second clause of Article 11(1) allows the Respondent to object if
the Applicant “is to be referred to in” NATO “differently than in paragraph 2
of United Nations Security Council resolution 817 (1993).” TheApplicant has
long been referred to in NATO no differently than in paragraph 2 of resolution
817, in its PfP programme and in the MAP. It would have been referred to no
differently on admission to NATO, pending resolution of the difference over its
name. In these circumstances, the Respondent was not entitled to object to the
Applicant’s membership in NATO under this clause.
4.92. TheRespondent’sprincipalargumentisthatthesecondclauseofArticle
11(1) allows for an objection if the Respondent believes the Applicant would
call itself by its constitutional name in its dealings with NATO. The text and
context of the second clause ofArticle 11(1) do not support that interpretation,
nor does the object and purpose of the InterimAccord.The established practice
within the United Nations and within the United Nations specialized agencies
- 125 -as of the date the Interim Accord was concluded demonstrates an approach
whereby the Applicant was to be referred to in international, multilateral and
regional organizations and institutions under the provisional reference, but
was fully entitled to call itself by its constitutional name as a member of the
organization or institution in question. The negotiators of the Interim Accord
knewaboutthatpractice,andthereisnothinginthetextorthecontemporaneous
practice of the Parties indicating an effort to deviate from that practice. Indeed,
the express cross-reference inArticle 11(1) to the practice at the United Nations
under resolution 817 confirms the intention to continue with that practice in
relation to the Applicant’s membership in other international, multilateral and
regionalorganizationsandinstitutions.Moreover,theRespondent’sinterpretation
with respect to the second clause is wholly unreasonable because it would
essentiallyevisceratetheobjectiveofthefirstclauseofArticle11(1),byproviding
a sweeping discretion to the Respondent to object based on its subjective
perceptionofwhethertheApplicantwasactingproperlyundertheInterimAccord.
4.93. The Respondent’s theory for interpretingArticle 11(1) not only fails on
thebasisofitsmanifestlyinadequatelegalreasoning,butalsoonthefacts.There
is nothing in the record to indicate that the Respondent in 2008 objected to the
Applicant’smembershipinNATObecausetheRespondentwasconcernedthatthe
ApplicantwouldcallitselfbyitsconstitutionalnameasaNATOmember.Rather,
thenumerousstatementsbytheRespondent’sofficialsatthetime,confirmedby
theaccountsof NATO,otherNATOMemberCountriesandthird-partyobservers,
demonstratethatthereasonfortheRespondent’sobjectionwasitsdiscontentthat
thedifferenceoverthenamehadnotyetbeenresolved.Thatbasisforobjectingwas
unlawful:Article11(1)doesnotpermitit.TheRespondentviolatedArticle11(1).
4.94. TheRespondentseekstojustifyorexcuseitsviolationofArticle11(1)by
referencetotwoarguments:(i)thattheviolationisjustifiedduetothepreservation
of certain rights for the Respondent inArticle 22 of the InterimAccord; and (ii)
that the violation is excused due to a “general principle of reciprocity according
to which non adimpleti non est adimpledum.” These arguments are addressed
in the following Chapter.
- 126 - CHAPTER V
THE RESPONDENT’S BREACH OFARTICLE 11(1) CANNOT
BE JUSTIFIED OR EXCUSED BASED ONARTICLE 22 OFTHE
INTERIMACCORD OR ONAPRINCIPLE OF EXCEPTIO NON
ADIMPLETI CONTRACTUS
Introduction
5.1. Chapter IVconfirmed that the Respondent’s conduct prior to and during
theBucharestSummitmeetingin2008constitutedanobjectiontotheApplicant’s
membershipofNATOinbreachofArticle11(1)ofthe1995InterimAccord.This
Chapter addresses the Respondent’s contention that its breach may be justified
or excused.
5.2. In its Memorial, the Applicant anticipated possible arguments that the
Respondent might advance to excuse its breach. In particular, the Applicant
refutedargumentsthattheRespondent’sconductcouldbeexcusedonthegrounds
of either (i) suspension of Article 11(1) under the law of treaties in reaction to
284
an alleged material breach of the Interim Accord by the Applicant; or (ii) a
lawful countermeasure to a precedent wrongful act by theApplicant. 285
5.3. InitsCounter-Memorial,theRespondentconfirmsthatitdoesnotseekto
excuseitsconductonsuchgrounds.TheRespondentstatesthat“Greecehasnever
claimedanyintenttosuspend(letalonetoterminate)inwholeorinparttheoperation
of the Interim Accord”. 286 Moreover, while confirming that countermeasures
are a “circumstance precluding wrongfulness”, the Respondent states clearly
that “[i]n the present case, Greece does not rely on such a circumstance.” 287
284 Memorial, paras. 5.21-5.39.
285 Memorial, paras. 5.41-5.54.
286
Counter-Memorial, para. 8.2.
287 Counter-Memorial, para. 8.3.
- 127 -5.4. Instead, the Respondent asserts that, if it is found to have violated its
obligation under Article 11(1), there are two reasons for its having done so.
First, the Respondent invokesArticle 22 of the InterimAccord, which it asserts
preserves a “right” or “duty” under the North Atlantic Treaty to object to the
Applicant’s membership in NATO.According to the Respondent, its obligation
underArticle11(1)issubordinatetoits“right”or“duty”undertheNorthAtlantic
Treaty,which the Respondent exercisedwhenitobjectedtotheApplicantbeing
invited to become a NATO member at the Bucharest Summit. Second, the
Respondentinvokesa“generalprincipleofreciprocity”accordingtowhich“non
adimpletinonestadimplendum,”allegingthat,sincetheApplicanthaspurportedly
failed to comply with miscellaneous obligations under the 1995 Accord, the
Respondent is entitled not to comply with its obligation under Article 11(1).
5.5. This Chapter explains why neither of the two reasons set forth in
Respondent’s Counter-Memorial has merit. Section I of this Chapter explains
that Article 22 does not address the rights or duties of the Respondent. Rather,
Article 22 is making clear that, as a factual matter, the InterimAccord does not
infringe upon any rights and dutiesof third States and entities that exist under
treaties that theApplicant or Respondent had concluded with those third parties
as of September 1995. The Respondent’s assertion thatArticle 22 modifies the
Respondent’sobligationunderArticle11(1)isinconsistentwiththetextandcontext
ofArticle 22, with the object and purpose ofArticle 11(1), with the subsequent
practice of the Parties, and with the negotiating history of the Interim Accord,
and in any event leads to a result which is manifestly absurd and unreasonable.
5.6. SectionIIdemonstratesthat,eveniftheRespondentiscorrectthatArticle
22speakstotheRespondent’srightsanddutiesunderthird-partyagreements,the
Respondent’sargumentneverthelessfails.Article22isbestunderstoodassimply
afactualrecognitionthattheInterimAccorddoesnotaffectrightsorobligations
arising under third-party agreements, not as a provision that alters obligations
arisingunderotherarticlesoftheInterimAccord.Further,evenifoneinterprets
Article 22 as generally protecting the rights and duties of the Respondent under
third-party agreements, it cannot nullifyArticle 11(1). Even ifArticle 22 is read
- 128 -ascapableofevisceratingArticle11(1)insomecircumstances,itdoesnotdoso
in this instance, since the Respondent has not identified any “right” or “duty”
under the NorthAtlanticTreaty that would require it to object to theApplicant’s
membership.Further,anydiscretionaccordedtotheRespondentundertheNorth
AtlanticTreatyconcerningtheadmissionoftheApplicanttoNATOwasalready
exercised when the Respondent concluded the Interim Accord, in the sense
that the Respondent accepted that the difference over the name alone was not a
basis for excluding the Applicant from international, multilateral and regional
organizations and institutions. In any event, the Applicant has satisfied all the
requirementsnecessaryforadmissiontoNATO,anditisplainthatthetruereason
for the Respondent’s objection was merely its own political preference that the
difference over the name be resolved on its own terms prior to the Applicant
being able to join NATO.
5.7. Section III then turns to the Respondent’s argument concerning the
principle of exceptio non adimplenti contractus (defence in the case of an
unfulfilled contract), by which the Respondent claims that it is free to suspend
a treaty obligation and then, after it has acted, allege non-compliance by the
Applicantwithother,causallyunconnectedobligationsundertheInterimAccord.
This section demonstrates that the Respondent’s sudden invocation of this
principle in these proceedings is poorly conceived. First, the very existence of
anautonomousprincipleofthekindadvancedbytheRespondentisquestionable.
The principle has never been recognized by the Court as providing a basis for
unsettlingatreatyobligation;indeed,forittobesorecognizedwouldundermine
treatyrelations.Leadingacademicauthoritiesdenyordoubttheexistenceofthe
principle, or at best assert that the principle merely informs relevant treaty law,
as codified inArticle 60 of the 1969Vienna Convention on the Law ofTreaties.
Second, regardless of the principle’s status under general international law, the
terms and conditions ofArticle 60 are the exclusive source of law on this issue
in the current case, given that both theApplicant and the Respondent are parties
to theVienna Convention, and there is no basis in the law of state responsibility
for invoking the exceptio. Third, the treaty obligations of the Applicant and
the Respondent in the Interim Accord are not of a nature as to give rise to the
- 129 -applicability of theexceptio. Fourth, and importantly, the Applicant has not in
fact violated other provisions of the InterimAccord that are causally connected
toArticle 11(1), such as to give rise to a right to invoke the exceptio.
Section I. The Respondent Incorrectly InterpretsArticle 22 as
Addressing the Respondent’s Own Rights and Duties
5.8. In its Counter-Memorial, the Respondent maintains that Article 22 of
the Interim Accord excuses the Respondent’s breach of Article 11(1). 288The
Respondentnotesthat,underArticle10oftheNorthAtlanticTreaty,the“Parties
may, by unanimous agreement, invite any other European State in a position to
furthertheprinciplesofthisTreatyandtocontributetothesecurityoftheNorth
AtlanticareatoaccedetothisTreaty.”TheRespondentclaimsthatthisprovision
of the NorthAtlantic Treaty imposes a “right” or a “duty” upon the Respondent
to“express[its]views”withrespecttotheaccessionofnewNATOmembers. 289
The Respondent claims that it exercised that “right” or “duty” when it objected
to the Applicant’s application for membership in NATO, on the basis that the
ApplicantfailedtomeetallNATOaccessioncriteria.Theaccessioncriteriawhich
it cites at paras 5.25 and 7.36 of its Counter-Memorial are the requirements set
out in NATO’s MembershipAction Plan to:
“…settle ethnic disputes or external territorial disputes including
irredentist claims or internal jurisdictional disputes by peaceful means
in accordance with OSCE principles and […] pursue good neighbourly
290
relations.”
288 Counter-Memorial,paras.3.29,6.63and7.26-7.39.TheRespondentalsoarguesthatArticle
22precludesthisCourtfromexercisingjurisdictionoverthiscase:seeCounter-Memorial,paras.
6.25-6.27, 6.30 and 6.52-6.63. Those arguments are addressed in Chapter III of this Reply, paras.
3.26-3.32.
289 Counter-Memorial, para. 7.33-7.34.
290
SeealsoLetterdated23May2008fromtheRespondent’sPermanentRepresentativetothe
United Nations, John Mourikis, to the United Nations Secretary-General, UN doc. S/2008/346
(28 May 2008): “Greece would like to note that the reason why it was not possible to extend,
in Bucharest, an invitation for membership to the former Yugoslav Republic of Macedonia is
that the latter, judged by her overall conduct vis-à-vis the name issue and towards a member of
- 130 -5.9. Hence the Respondent claims that, even if its objection violatedArticle
11(1),Article22preventsArticle11(1)from“infringing”upontheRespondent’s
“right” or “duty” under the North Atlantic Treaty; as such, the Respondent
asserts, its conduct can be justified. Under this approach, the Respondent also
maintains that it can object to theApplicant’s admission to the European Union
and to numerous other international multilateral and regional organizations and
institutions.91
5.10. The Respondent’s interpretation ofArticle 22 cannot be sustained under
the rules on interpretation set out in Articles 31-32 of the Vienna Convention
on the Law of Treaties. Article 22 of the InterimAccord states:
“ThisInterimAccordisnotdirectedagainstanyotherStateorentityand
it does not infringe on the rights and duties resulting from bilateral and
multilateral agreements already in force that the Parties have concluded
with other States or international organizations.” [emphasis added]
5.11. Article 22 is a single sentence.The first clause of the sentence signals its
basicpurpose:theArticleseekstomakeclearthattheInterimAccordasawhole
is not “directed against any other State or entity”. In that context, the sentence
continues, without any break, to indicate that the Interim Accord “does not
infringe” upon “rights and duties”, by which it means that the Interim Accord
does not affect the rights and dutiesof third parties, arising from international
agreementsthosethirdpartieshaveconcludedwiththePartiestotheInterimAccord.
5.12. In essence, Article 22 is simply a factual statement. It makes clear that
while various provisions of the Interim Accord impose obligations upon the
Applicant and upon the Respondent, those obligations are not intended to
“infringe” on any rights and dutiesof third States and entities that exist under
treaties that theApplicant and Respondent have with those third parties.Article
22doesnot,assuch,createorreserverightsfortheApplicantortheRespondent,
the Alliance, failed to meet the condition of the respect for the principle of peaceful and good-
neighbourly relations”: Memorial, Annex 43.
291 Counter-Memorial, para. 6.58.
- 131 -and does not alter the obligations of the Applicant or Respondent that appear
elsewhere in the Interim Accord. By arguing otherwise, the Respondent gives
Article22anoverlybroadmeaningtosuititsownparticularpurposesinthiscase.
5.13. Aclauseofthistypeinaninternationalagreementisnotunusualanddoes
not seek to change the meaning of the agreement. It simply makes clear that the
agreement is not directed at altering the rights and duties of third parties. For
example, various governments directly sell defence articles to the Respondent,
subjecttointernationalsecurityassistancetreatieswhichprovidethatthearticles
maynotbetransferredtoanyotherStatewithouttheseller’sconsent. 29Ifatsome
futurepointtheRespondentweretodeclarethatcertaindefencearticleswereno
longer needed and therefore available for resale, and theApplicant were to seek
topurchasethosearticles,theRespondentwouldbeunderanobligationtoobtain
the consent of the third-party government prior to agreeing to that purchase. If
theApplicantsoughttoinsist,onrefusalofsuchconsent,thatunderArticle8(1)
of the InterimAccord the Respondent could not impose any impediment on the
movementofgoodstotheApplicant’sterritory,theRespondentwouldbeentitled
to respond that it need not fulfil that obligation in this context because doing so
would infringe upon rights arising from an agreement with a third party.
5.14. The ordinary meaning of Article 22 is clear, and the context confirms
this meaning. Article 22 appears at the end of the Interim Accord in Part F, as
one of three articles labelled “Final Clauses.” As the placement suggests, this
article is a general and even routine provision directed at declaring, as a matter
of fact, the effect of the Interim Accord on third parties; it is not located in the
other parts of the InterimAccord where the specific rights or obligations of the
Partiesareidentifiedand,insomeinstances,carefullyconditioned.Ofparticular
significancetothecontextofArticle22istheexistenceofotherprovisionsofthe
InterimAccordthatexpresslyaddresstheRespondent’sobligationsunderthird-
292
See, for example, the Defense Industrial Cooperation Agreement, (Athens, 10 November
1986),TIAS 12320: “Transfers to third parties of defense articles or technical data made
available under this Agreement and of articles produced with such data will be subject to the
prior written consent of the Party that made available the defense articles or technical data”.
- 132 -party agreements, thereby carefully conditioning the Respondent’s obligations
under the InterimAccord when such conditioning is intended.
5.15. For example, Article 14 of the Interim Accord requires both Parties
to “promote, on a reciprocal basis, road, rail, maritime and air transport and
communication links”, as well as “facilitate transit of goods through their
territories and ports”. Cognizant that pursuing such cooperation might place
the Respondent in conflict with its existing international obligations to third
parties, including its obligations as a member of the European Union, Article
14(2) expressly provides:
“TothisendthePartiesagreetoenterforthwithintonegotiationsaimedat
promptlyimplementingagreementsofcooperationintheaforementioned
areas, taking into account the obligations of the Party of the First Part
[i.e., the Respondent] deriving from its membership in the European
Union and from other international instruments.” [emphasis added]
5.16. The language of Article 14(2), read in conjunction with Article 22,
confirms thatArticle 22 is concerned with the rights and duties of third parties,
293
not the rights and duties of the Applicant or the Respondent. If Article 22
were meant to cover the rights and duties of the Applicant and Respondent
under international agreements with third parties, there would be no need for
the clause appearing at the end ofArticle 14(2). Moreover, the language of this
clausedemonstratesthatwhenthePartiestotheInterimAccordsoughttoaddress
their rights or duties under third-party agreements, they did so expressly, by
acknowledging “the obligations of the Party of the First Part deriving from its
membership in the European Union and from other international instruments.”
No such language appears inArticle 22.
293
TheCourthasoftenfounditvaluabletocontrasttwoprovisionsofasingletreatytodetermine
their respective meanings. See, e.g.,Border and Transborder Armed Actions (Nicaragua v.
Honduras),Merits,JudgmentI.C.J.Repor1ts988,p.69,atparas.42-45(contrastingtwoprovisions
of the Pact of Bogotà to determine their respective meanings).
- 133 -5.17. Similarly, pursuant to Article 19(2) of the Interim Accord, both Parties
acceptedanobligationtoimproveandacceleratecustomsandborderformalities.
Again, cognizant that pursuing such cooperation might place the Respondent
in conflict with its existing international obligations to third parties, including
its obligations as a member of the European Union, Article 19(2) qualifies the
obligation imposed on the Respondent, stating:
“Consistent with the obligations of the [Respondent] arising from its
membership in the European Union and from relevant instruments of
the Union, the Parties shall make joint efforts to improve and accelerate
customs and border formalities, including simplification in the issuance
of visas to each other’s citizens, taking into accountArticle 5, paragraph
2, of this InterimAccord.” [emphasis added]
5.18. As withArticle 14(2), the language ofArticle 19(2), read in conjunction
withArticle 22, indicates thatArticle 22 is concerned with the rights and duties
of third parties, not the rights and duties of the Applicant or the Respondent.
If Article 22 were meant to cover the rights and duties of the Applicant or
Respondent, there would be no need for the opening clause ofArticle 19(2).
5.19. Separate from Article 22, the Respondent’s understanding does not
comport with the practice of the Partiespriorto,andintheimmediateaftermath
of, the conclusion of the Interim Accord. In the period preceding September
1995, the Applicant had been trying for more than two years to join various
international,multilateralandregionalorganizationsandinstitutionsoutsidethe
UnitedNationssystem,includingtheCouncilofEuropeandtheOrganizationfor
SecurityandCo-operationinEurope(OSCE),butitseffortsweresystematically
thwarted by the Respondent’s objection to its membership, preventing the
requisite consensus from being reached. 294The whole point of the Applicant’s
insistenceonsecuringthecommitmentoftheRespondentinArticle11(1)wasto
overcome such objections.WhenArticle 11(1) entered into force on 13 October
1995 the Respondent immediately dropped its objections to the Applicant’s
294 Memorial, para. 2.38.
- 134 -membership in such organizations. Objections were dropped in relation to the
295
Council of Europe, and then with respect to the Organization for Security
and Co-operation in Europe, and membership in numerous other organizations
became open to the Applicant in the immediate aftermath of concluding the
296
InterimAccord.
5.20. Yet,undertheRespondent’sunderstandingofArticle22,Article11(1)of
the Interim Accord imposed no meaningful obligation upon the Respondent to
dropitsobjections.Rather,theRespondentwouldhavebeenentitled,evenafter
the conclusion of the Interim Accord, to object to the Applicant’s membership
in such organizations. For example, with respect to membership in the Council
of Europe, the Respondent could have maintained that it had a “right” or “duty”
under Article 4 of the Statute of the Council of Europe to determine whether
the Applicant was able and willing to fulfil the provisions of Article 3 of that
Statute. In the exercise of that “right” or “duty” (as preserved by Article 22),
the Respondent could have continued to object to the Applicant’s membership
in the Council of Europe due to the failure to resolve the difference over the
Applicant’s name. The Respondent would seek to persuade the Court that the
abruptshiftinitspracticeaftertheconclusionoftheInterimAccordwassimply
a coincidental change in the Respondent’s policy preferences, unconnected
to the legal obligation imposed by Article 11(1). This interpretation is wholly
implausible.
5.21. A further compelling reason why the Respondent’s interpretation of
Article22isnotcorrectisthatitrendersArticle11(1)meaningless,undermining
the object and purpose of this vital provision. Most international organizations
have conditions for admission of new members, and in most circumstances it
is for the existing membership to decide, by votes before the relevant organ or
organs of the international organization, or by a consensus process, whether the
prospective member meets those conditions. If the Respondent were correct in
asserting that the type of “right” or “duty” with which Article 22 is concerned
295 Memorial, para. 2.41.
296
Memorial, para. 2.40.
- 135 -included the Respondent’s own decision-making on the admission of new
members to international organizations, then it wouldalways be the case, in
organizations where Member States have a right to object to the admission of
new members, that the Respondentcould object to the Applicant’s admission
to an international organization due to (for example) the unresolved difference
over the name, without violatingArticle 11(1). On this approach,Article 11(1)
wouldservenopracticalpurpose,andcouldalwaysbecircumventedbyunilateral
decision of the Respondent.
5.22. Thus, under the Respondent’s approach, if theApplicant had not already
been a member of the United Nations in September 1995 (when the Interim
Accordenteredintoforce),theRespondentcouldhavecontinuedtoobjecttothe
Applicant’s membership due to the unresolved difference over the name, even
where theApplicant was to be referred to no differently than in resolution 817,
on the pretext that the Respondent has a “right” or “duty” under United Nations
Charter Article 4 to determine whether the Applicant is a “peace loving” State
and is “able and willing to carry out [United Nations] obligations.” Yet, as set
outinChapterIV,Article11(1)wascraftedwiththeprecedentoftheApplicant’s
admission to the United Nations in mind (even expressly cross-referencing to
that practice), and thus sought to build upon the method for the Applicant’s
admission to the United Nations as the means for solving the further problem of
admissiontonon-UnitedNationsorganizations.Despitethat,theRespondentnow
invites the Court to interpretArticle 11(1) as having no application in precisely
the situations it was intended to operate in.
5.23. The Respondent purports to be able to object to the Applicant being
invited to accede to NATO, without identifying any “right” or “duty” to so
object in the North Atlantic Treaty. It also purports to be able to object to the
Applicant’s membership in the European Union, presumably on the basis that
the Respondent has a “right” or “duty” under Article 49 of the Treaty of the
European Union to determine whether theApplicant respects the principles set
out in Article 6(1) of that Treaty. On such reasoning, the list of international,
- 136 -multilateralandregionalorganizationsandinstitutionsatwhichtheRespondent
might object to theApplicant’s membership is extensive.
5.24. In sum, the Respondent seeks an approach to Article 22 that entirely
undermines the object and purpose of Article 11(1). On its face, the
Respondent’s understanding as to the meaning of Article 22 is unreasonable
297
and unjustifiable.
5.25. TheRespondentappearstorecognizethisdifficulty.Itthereforeattemptsto
cloudtheissuebycreatingadistinctionbetweentwodifferenttypesofinternational
organizations, characterizing some asorganisations à vocation universelle and
othersasorganisationsfermées.TheRespondentclaimsthatArticle22doesnot
affectArticle11(1)withrespecttoorganisationsàvocationuniversellebecause
these organizations “may be called ‘adhesive’international organizations, i.e.,
organizationsinwhichnewmembersaresimply‘addedon’byapplicationa pro
forma approval,” 298with the existing members not undertaking “any significant
299
role or new responsibility.” By contrast,organisations fermées apply “more
stringent”admissionscriteria,involving“collectivepolicyjudgmentsonthepart
of existing members, all of whom carryaheavyresponsibility,” andtherefore
it is for these organizations that Article 11(1) is subordinated to Article 22.
5.26. There are multiple problems with this explanation, which are not
addressed by the Respondent. First, the text, context, subsequent practice and
negotiating history of Articles 11(1) and 22 draw no such distinction. Second,
descriptively,thedistinctiondrawnbetweenthetwotypesoforganizationsdoes
not hold up in practice. The United Nations, for example, is an organization
open to all States, and hence apparently an organisation à vocation universelle
297
See Anthony Aust, “Even if the words of the treaty are clear, if applying them would lead
to a result which would be manifestly absurd or unreasonable . . . the parties must seek another
interpretation”: Anthony Aust,Modern Treaty Law and Practice, Second Edition (Cambridge:
Cambridge University Press, 2007).
298 Counter-Memorial, para. 6.56.
299
Counter-Memorial, para. 6.58.
300 Counter-Memorial, para. 6.57.
- 137 - 301
under the Respondent’s approach. Yet, as is readily apparent to all States (but
not the Respondent), the process of admission to the United Nations is hardly
regarded aspro forma, with the existing Members taking on no significant role
or responsibility in the process. Decisions on admission of new members to the
UnitedNationshavebeenpostponedformanyyearsduetodisagreementswithin
the existing membership. This Court itself has recognized the important role
that United Nations Member States have in deciding on whether to admit new
States to membership in the United Nations, both in the context of the Court’s
302 303
advisory opinions and contentious cases. It is simply not credible to view
such matters as pro forma.
5.27. Third, this explanation ofArticle 22 in its relation toArticle 11(1) leads
to absurdity. Under the Respondent’s convoluted reasoning, Article 11(1) only
imposes an obligation on the Respondent in situations when the Applicant’s
membershipinaninternationalorganizationis“proforma”andwhentheexisting
members do not have “any significant role or responsibility” in relation to the
admission of new members. In other words, the Respondent appears to contend
thattheonlytimethatitisobligatednottoobjecttotheApplicant’smembership
in an organization is in circumstances where the Respondent has no role in or
responsibility over whether the Applicant becomes a member. For example,
the Respondent would apparently accept that when the Applicant joined the
OrganizationfortheProhibitionofChemicalWeaponsin1997,itwasobligated
not to object under Article 11(1) precisely because, under Article VIII of the
ChemicalWeaponsConvention,theRespondenthadnoabilitytoobject. 304Such
an interpretation is patently absurd.
301 Counter-Memorial,para.1.5assertingthat,inthecontextofdiscussingadmissionofStatesto
theUnitedNationsunderArticle4oftheCharter,“[t]hecriteriaforadmissiontherearerelatively
open” and do not require “considerable commitments on the part of acceding States”.
302 Advisory Opinion on Conditions of Admission of a State to Membership in the United
Nations (Article 4 of the ChartI.C.J. Reports 19, p. 57, see specifically p. 62.
303 CaseConcerning ApplicationoftheConventiononthePreventionandPunishmentoftheCrime
of Genocide(Yugoslavia v. Boznia-Herzegovina)I,.C.J. Reports 2,p. 7, see specifically p. 31.
304 Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction (Paris, 13 January 1993), UNTS vol. 45.
- 138 -5.28. Fourth, the Respondent’s approach apparently places into its box of
organisations fermées all of the key international organizations that were of
crucial importance to the Applicant when negotiating and concluding Article
11(1). It is not plausible that the Applicant would negotiate Article 11(1) so as
to achieve a key objective, only to have it eviscerated byArticle 22.
5.29. Ultimately, the Respondent’s understanding renders Article 11(1)
meaningless. It also has the potential to defeat the object and purpose of the
entire Interim Accord, since it undermines all of the Parties’obligations under
the InterimAccord whenever a Party uncovers a latent “right” or “duty” that it
arguably possesses with respect to any international agreement it has with third
States.306 For example, if the Respondent’s understanding of Article 22 were
correct, then the Respondent presumably would be in a position to argue that it
hasnoobligationunderArticle8oftheInterimAccordtorefrainfromimposing
a unilateral economic embargo upon the Applicant as a means of pressuring
the Applicant in the negotiations over the difference over the name. This is
precisely what the Respondent argued in pleadings before the European Court
of Justice prior to the conclusion of the InterimAccord: the Respondent argued
that its unilateral embargo on trade with the Applicant, imposed in 1994 in the
wake of theApplicant’s admission to the United Nations, was justified because
it retained a “right” underArticle 224 of the Treaty of Rome to impose such an
307
embargo. Ifarguendothatwerecorrect,andiftheRespondent’sunderstanding
ofArticle 22 is to be believed, thenArticle 22 would also eviscerateArticle 8 of
the Interim Accord, since the obligation of the Respondent in Article 8 would
be subordinate to the “right” the Respondent claims to possess under theTreaty
of Rome. That cannot be the case.
305 Counter-Memorial, para. 6.58.
306 Counter-Memorial, para. 6.25: “Article 22 … applies teovery right and duty in the Interim
Accord” and para. 6.54: “Article 22 applies to the entire Interim Accord” [emphasis supplied].
307 SeeCommission of the European Communities v. Hellenic Repub,lic-120/94 R, 29 June
1994, para. 31: “The Greek Government relies, lastly, on Article 224 of the Treaty which, in
its view, constitutes a general safeguard clause empowering Member States to take unilateral
measures”. The European Court did not reach the merits of this issue prior to the lifting of the
Respondent’s embargo.
- 139 -5.30. Given the clear meaning that emerges from a review of the text, context,
andsubsequentpracticeofthePartiesunderArticle22,whenreadinlightofthe
object and purpose ofArticle 11(1) and the InterimAccord as a whole, there is
308
no need to resort to the negotiating history of Article 22. Nevertheless, that
history also refutes the Respondent’s approach to Article 22. The article that
wouldbecomeArticle22wasoriginallyproposedintheVance-OwendraftTreaty
309
of 14 May 1993, long before what becameArticle 11(1) was introduced into
the negotiations in April 1994. As such, it is clear that the intention in crafting
the Article 22 language had nothing to do with the issue of the Applicant’s
admission to international organizations. Further, the text of the article passed
throughmultipledraftsvirtuallyunchanged,demonstratingnoparticularinterest
by the negotiators in the meaning of the article, and its effects on other articles
in the Interim Accord as they were drafted, though such attention would have
been expected if the Respondent’s interpretation were correct.
5.31. Moreover, at the point in the negotiating history where language is
first introduced to deal with the Applicant’s difficulty in joining international
organizations,thatlanguageappeara ssapartofwhatwouldbecomeArticle22.In
thedraftof17April1994,bracketedlanguageisincludedinwhatwouldbecome
Article 22, stating: “The Parties will not hamper each other’s participation in
internationalorganizations.” ThisinitialplacementoftheArticle11(1)-related
language in what later became Article 22 confirms an intent that the Article
11(1)-language operatein harmony with Article 22, not that the latter would
negatetheformer.Inotherwords,thisdraftshowsthaitnadditiontorecognizing
thattheInterimAccordwouldnotinfringeupontherightsordutiesofotherStates
or entities (including international organizations), it was also intended that the
Respondent would not impede the ability of theApplicant to join such entities.
308 See the Vienna Convention on the Law of Treaties, Article 32.
309 Vance-Owen Treaty, Article 24, attached to 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): Memorial, Annex 33.
310 Draft (b) (17 April 1994), Article 9: Excerpt from Draft B of the Interim Accord from
the archives of the Respondent’s Ministry of Foreign Affairs as printed in Annex 148 of the
Respondent’s Counter-Memorial (17 April 1994): Reply, Annex 60.
- 140 -5.32. Finally, as the Article 11(1) concept was further developed in language
tabledon15March1995,thatlanguagespecificallyprovidedthattheRespondent
“agrees from the date of entry into force of thisAccord to remove its objection
to”theApplicant’s“applicationformembershipintheOrganizationforSecurity
andCooperationinEurope.” Inotherwords,theOSCEwasexpresslyidentified
in this draft as an international organization where the Respondent was not to
object to the Applicant’s membership. Yet (as discussed above), tabling such
language would have made no sense if the Respondent were correct that, in the
same draft, Article 22 would have eviscerated the Respondent’s obligation not
to object to the Applicant’s membership in the OSCE. If the Respondent were
correct in its interpretation, then such language would only have been proposed
in conjunction with a proposal to amend or eliminateArticle 22.
5.33. Insum,noneoftherelevantfactorsforengaginginasoundinterpretationof
Article22undertheViennaConventionsupporttheRespondent’sunderstanding
that its obligation in Article 11(1) is subordinated to a right or duty of the
Respondent protected by Article 22, for that article only concerns rights and
duties of third parties. As such, the Respondent cannot rely upon Article 22 to
justify its breach ofArticle 11(1).
Section II. Even ifArticle 22Addresses Rights or Duties of the
Respondent,Article 22 Still Cannot Be Invoked to Justify the
Respondent’s Objection
5.34. Evenifalltherulesoninterpretationoftreatytextaresetaside,andArticle
22isviewedasaddressingtherightsanddutie osftheRespondent,theRespondent
cannot possibly be allowed to use Article 22 to engage in the very conduct
that Article 11(1) carefully sought to proscribe, for the following four reasons.
311
Draft (e) (15 March 1995), at Article 11(2): Excerpt from Draft E of the Interim Accord
from the archives of the Respondent’s Ministry of Foreign Affairs, as printed in Annex 148 of
the Respondent’s Counter-Memorial (15 March 1994): Reply, Annex 62.
- 141 -5.35. First, as indicated at the beginning of the prior section, Article 22 is
simplyastatementoffact;itassertsthatnothingintheInterimAccordinfringes
upon the rights and duties that exist under third-party agreements in force as of
September1995.EvenifsuchrightsanddutiesincludethoseoftheRespondent,
Article 22 merely indicates that the Accord operates consistently with those
rights and duties.Article 22 cannot alter obligations of the Respondent in other
parts of the InterimAccord.
5.36. Second, even assuming arguendo that Article 22 generally addresses
rights or duties of the Respondent, interpretingArticle 22 as preserving for the
RespondentthespecificrighttoobjecttotheApplicant’sadmissiontointernational
organizationsisnotagoodfaithinterpretationorapplicationofArticle22,when
read in conjunction withArticle 11(1).Article 26 of the Vienna Convention on
the Law of Treaties provides that “[e]very treaty in force is binding upon the
parties to it and must be performed by them in good faith.” As this Court has
noted,
“One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation . . . .” 312
5.37. The Court recently recalled this finding and directly connected it to the
good faith obligation contained inArticle 26 of the Vienna Convention. 313
5.38. Even if one assumes that the Respondent’s rights and duties under third
party agreements are generally not infringed upon by the Interim Accord, it is
not a good faith interpretation or application ofArticle 22 to interpret it to allow
theRespondenttodowhatitcommittednottodoinArticle11(1).UseofArticle
22bytheRespondenttoavoidunintendedconflictswiththeRespondent’srights
312 Nuclear Tests (Australia v. France), I.C.J. Reports,p. 268, para. 46;Nuclear Tests
(New Zealand v. France), I.C.J. Reports 17.4105, para. 94; see alsoBorder and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibil.C.J. Reports 19, p.
105, para. 94.
313 SeePulpMillsontheRiverUruguay(Argentinav.Urugu,aIy.)C.J. Reports 20a 1t0para. 145.
- 142 -or duties under agreements with third parties is one thing, and could be a good
faith approach toArticle 22 as a “final” clause to the InterimAccord. But using
Article22tooutrightnegatetheRespondent’sveryspecificobligationinArticle
11(1), which was clearly understood and intended by both Parties in September
1995 to be a meaningful legal commitment by the Respondent, is not a good
faithinterpretationorapplicationofArticle22,andcanonlyunderminethetrust
and confidence upon which the InterimAccord must operate.
5.39. As discussed in the prior section, interpreting and applyingArticle 22 in
themannernowadvancedbytheRespondentevisceratesacentralobligationthat
theRespondentacceptedintheInterimAccord.Further,thehistoricalbackground
on why Article 11(1) was created and on how it influenced the practice of the
Parties after September 1995 demonstrates that it would radically distort the
meaning of Article 22 to use it in the fashion now pursued by the Respondent.
Hence,evenifoneinterpretsArticle22generallyasprotectingrightsandduties
of the Respondent under third party agreements, it should be interpreted in light
ofthespecificrestrictionsontheRespondent’sconductsetforthinArticle11(1),
to the effect that it does not nullifyArticle 11(1).As the Respondent accepts in
its Counter-Memorial:
“[t]he [second] clause [ofArticle 11(1)] limits a right that Greece could
otherwise freely exercise; i.e., the right, subject to the terms of the
constitutiveinstrument,toadoptwhateverpositionitwisheswithrespect
totherelationsofanotherStatetoaninternationalorganizationtowhich
314
it belongs, including by objecting to application or membership.”
5.40. Third, for the Respondent’s interpretation to work, the Respondent must
identifya“right”or“duty”resultingfromtheNorthAtlanticTreatythatsomehow
conflicts with the obligation it undertook inArticle 11(1) of the InterimAccord,
but it has failed to do so. Certainly, the Respondent has put no evidence before
the Court in support of its contention that NATO Member Countries have a
binding obligation towards the organization to formally object to enlargement
314 Counter-Memorial, para. 7.7.
- 143 -decisions with which they do not agree. As recounted in Chapter II, Section
III(A), “the silence procedure” in operation at NATO demonstrates that no
such obligation exists, nor any right of other Member Countries to be informed
of such an objection. Indeed, it is quite telling that only in the context of these
proceedings has the Respondent attempted to present its objection as a “duty”
owed to NATO. Previously, the Respondent had described the exercise of its
315
objection to the Applicant’s NATO membership as an “option”, “one of the
tools at [its] disposal”, a “lever[...] of pressure”, and a “means to defend its
interests”,318 rather than as a binding duty.
5.41. CertainlyArticle 10 of the NorthAtlantic Treaty grants the Respondent
a right to participate in decisions on accession, butArticle 11(1) of the Interim
Accorddoesnotconflictwiththatright.CertainlyArticle10oftheNorthAtlantic
Treaty indicates what kind of States “may” accede to the Treaty – States that
are “European” or that “are in a position to further the principles of this Treaty
and to contribute to the security of the North Atlantic area …” – but Article
10 says nothing about a “right” or “duty” of the Respondent in assessing such
criteria, nor a “right” or “duty” to vote in favour of such States if the criteria
are met or against such States if the criteria are not met. Certainly Article 10
expressly imposes neither a “right” nor a “duty” to object to the Applicant’s
membership.
5.42. Even under the Respondent’s own reasoning, the decision on whether
to object to the Applicant’s admission to NATO is left to thediscretion of the
319
Respondent under the North Atlantic Treaty. The Respondent itself asserts:
315 Embassy of the Respondent in Washington, DCS,peech of FM Ms. Bakoyannis before the
governing party’s Parliamentary Group (27 March 2008): Memorial, Annex 89.
316 Respondent’sMinistryofForeignAffairs, Interview of Alternate FM Droutsas in the “Real
News” daily (22.11.09) (22 November 2009): Reply, Annex 194.
317 “Greek Prime Minister Denies Negotiations on Macedonia ‘Dropped’N ”,ET Television
Network(7 September 2007): Reply Memorial, Annex 166.
318 Embassy of the Respondent in Washington, DCP ,rime Minister on FYROM: ‘No solution
means no invitation’ (29 February 2008): Reply, Annex 97.
319 See Reply, Chapter II, Section III.
- 144 -“As the text of Article 10 of the Treaty makes clear,the Member States retain
the discretion to invite, or not to invite, any other State meeting these criteria
– they ‘may’do so, but they are not obliged to invite any given State…” The 320
Respondent goes on to claim that “Member States are… at will to decline an
321
invitation to an aspirant State which does not satisfy the criteria specified,”
but still identifies no “right” or “duty” of the Respondent to object inArticle 10
or otherwise. As such, Article 11(1)’s requirement not to object cannot be said
to infringe upon any “right” or “duty” imposed by the NorthA ▯ tlantic Treaty.
5.43. Fourth, even if arguendo the Respondent’s understanding of Article
22 is correct, and even if the North Atlantic Treaty is regarded as imposing a
“right” or “duty” upon the Respondent to object if it believes the Applicant is
not “in a position to further the principles” of the North Atlantic Treaty or “to
322
contribute to the security of the North Atlantic area,” the Respondent made
thatassessmentasitrelatestothedifferenceoverthenamewhentheRespondent
agreedtotheInterimAccord.ByconcludingtheAccord,theRespondentagreed
that the outstanding and unresolved difference over the name wasnot an issue
that barred theApplicant from being able to join any international, multilateral
or regional organization or institution, so long as it was to be referred to in the
organization or institution no differently than in resolution 817.
5.44. Moreover,byconcludingtheInterimAccord,theRespondentrecognized
that notwithstanding the unresolved difference over the name, the Applicant
satisfiedallthecoreprinciplesofinternationallaw,theverysameprinciplesthat
320 See Counter-Memorial, para. 5.17 [emphasis added].
321 Ibid.
322 Article 10 of the North Atlantic Treaty
323
SeeInterimAccord,PreambleandArt.9,confirmingthat,despitetheoutstandingdifference
over the name, the Parties were capable and willing to act in accordance with the United Nations
Charter,theHelsinkiFinalAct,theCharterofParis,andhumanrightsinstruments:InterimAccord
between the Applicant and the Respondent (New York, 13 September 1995): Memorial, Annex
1. See also Articles 2-4 of the Interim Accord, confirming the Parties’ respect for the existing
frontier, and undertaking to refrain from threats or uses of force, and to respect the sovereignty,
territorial integrity and political independence of the other, notwithstanding the difference over
the name: Interim Accord between the Applicant and the Respondent (New York, 13 September
1995): Memorial, Annex 1.
- 145 -animatetheNorthAtlanticTreaty, andthatthedifferenceoverthenamewan sot
an issue that precluded theApplicant from pursuing “the maintenance of peace
325
and security, especially in the region.” Asimilar assessment was made when
the Respondent co-sponsored and voted in favour of the General Assembly’s
resolutionadmittingtheApplicanttotheUnitedNationsin1993; eventhough 326
thedifferenceovertheApplicant’snamewasunresolved,theRespondentaccepted
that the Applicant was nevertheless a “peaceloving” State that was “able and
willing to carry out” its United Nations obligations, including the principle
328
of “liv[ing] together in peace with one another as good neighbours.” Having
made such assessments, the Respondent was perfectly capable of restricting the
exercise of its sovereign rights, as it did inArticle 11(1) of the InterimAccord.
As the Permanent Court found in the Wimbledon case:
“The Court declines to see in the conclusion of any Treaty by which a
State undertakes to perform or refrain from performing a particular act
an abandonment of its sovereignty. No doubt any convention creating
an obligation of this kind places a restriction upon the exercise of the
sovereign rights of the State, in the sense that it requires them to be
exercised in a certain way. But the right of entering into international
engagements is an attribute of State sovereignty.” 329
5.45. In other words, the Respondent agreed in 1995 that the ongoing and
unresolved difference over the name did not prevent theApplicant from acting
in accordance with the key principles of international law, including those
324
See North Atlantic Treaty, Preamble and Articles 1-2.
325 Interim Accord, Preamble: Interim Accord between the Applicant and the Respondent
(NewYork,13September1995):Memorial,Annex1.Similarly,fortheMembershipActionPlan
criteria, the Respondent and the Applicant did pursue “good neighbourly relations” by means of
the Interim Accord, with the Respondent accepting that the difference over the name would be
resolved in due course.
326 United Nations General Assembly, Forty-seventh session A,dmission of New Members to
the United Nations, A/47/L.54 (7 April 1993): Reply, Annex 14.
327 See United Nations Charter, Article 4.
328 See United Nations Charter, Preamble.
329
Case of the S.S. “Wimbledon”, Judgment, 1923, P.C.I.J., Series. A, No,.a1t p. 25.
- 146 -relating to territorial integrity, peace and security, and as such was no bar to the
Applicant joining international organizations and institutions. Moreover, the
Respondent accepted thatArticle 11(1) would operate as a part of an agreement
that was temporally open-ended: the Interim Accord, under Article 23, is to
“remain in force until superseded by a definitive agreement” or until one of
the Parties withdraws from the agreement, neither of which has happened. As
such, even under the Respondent’s understanding of the meaning ofArticle 22
and its understanding of the meaning of the North Atlantic Treaty (neither of
which is correct), the Respondent’s objection in 2008 to theApplicant’s NATO
membership could not lawfully have been based on the fact that the difference
over the name remained outstanding.
Section III: The Respondent Cannot Excuse Its Breach ofArticle 11(1)
on the Basis of a Principle of Exceptio Non Adimpleti Contractus
A. T h er e sP d eN TCA N N OT e lyO NTh eE x cEp t i o
5.46. The Respondent also seeks to justify its breach of Article 11(1) of the
InterimAccordonthebasisofanargumentthathasneverassuchbeenrecognized
orgiveneffectbytheCourt:theRespondentraisesaclaimbasedontheasserted
exceptiononadimpleticontractus, whichitdescribesasan“exceptionofnon-
331
performance”thatderivesfroma“generalprincipleofreciprocity”.According
totheRespondent,theargumentis“adefencewhichcanbeinvokedatanytime
in response to a claim by another State” of “non-performance of a conventional
obligation”. ItisalsoadefencethathasonegreatadvantagefortheRespondent,
namely that it is supposedly available on a unilateral basis and without limits
beingimposedbythepriorfulfillmentofproceduralrequirementsorconditions.
330
Counter-Memorial, paras. 8.8-8.62.
331 Counter-Memorial, para. 8.3.
332 Counter-Memorial, paras. 8.3 and 8.6.
- 147 -5.47. The Applicant was surprised to read this new argument. The claimed
“exception of non-performance” did not feature in any correspondence or
statement made by the Respondent before it acted in April 2008. It appears to
have been concocted in the course of the litigation, in response to the obvious
difficulties faced by the Respondent in making arguments based on the 1969
Vienna Convention on the Law of Treaties, to which it is a party, or the law of
State responsibility, by which it is also bound.
5.48. ThatisnottheonlydifficultyfacedbytheRespondent’sclaim,orthemost
problematic.TheRespondentisconfrontedwiththerealitythatth execeptioisnot
to be found in the 1969 Vienna Convention (other than in the form reflected in
Article60)orinthe2001ILCArticlesonStateResponsibility.The exceptiohas
neverbeenrecognizedbytheInternationalCourtofJustice. Indeed,inmodern
times it hasnever been relied upon by any leading judicial or arbitral authority
applying public international law. Leading academic authorities have denied or
doubteditsexistenceasaprincipleorruleofinternationallaw,orassertedthatif
the principle has relevance in treaty law or practice it is exclusively in the form
inwhichithasbeenincorporatedintoArticle60ofthe1969ViennaConvention.
5.49. More than four decades have passed since the adoption of the 1969
Vienna Convention. Notwithstanding the fact that the ILC’s Articles on State
Responsibility make no reference to the exceptio principle, the Respondent
claimsthatitisavailableasadefencethatentitlesittosuspendtheperformance
of its obligations under Article 11(1), without notice or the need to fulfil any
otherproceduralorobjectiveconditions.TheRespondentclaimsthatitisfreeto
suspendcertainofitstreatyobligationsandthen,afterithasacted,formallyallege
non-compliance by theApplicant with other, causally unconnected obligations
under the InterimAccord.
333
In theCase concerning Oil Platforms (Islamic Republic of Iran v. United States of Amer)ica
the United States invoked theexceptio, arguing that Iran violated obligations identical to those
that were the basis for its application (see CR 2003/11, 25 February 2003, at pp. 26-9); the Court
gave no effect to the argument.
- 148 -5.50. In order to make its far-reaching assertion the Respondent seeks to
persuade the Court that:
(1) the exceptio non adimpleti contractus is a general principle of law
applicable to treaty relations between states;
(2) the non-performance of one treaty obligation that is not connected
totheperformanceofanotherobligationinthesametreatycangive
rise to the applicability of the exceptio; and
(3) the Applicant has violated other provisions of the Interim Accord
such as to give rise to a right to invoke theexceptio with respect to
Article 11(1).
5.51. Against this background it is plain that the Respondent has manifestly
failed to raise a credible defence. Specifically, and as described in the sections
that follow, the Respondent:
• has not demonstrated that theexceptio non adimpleti contractus is
available as a general principle of international law such as to serve
as a defence justifying its breach ofArticle 11(1);
• hasfailedtoestablishthatthe1969ViennaConventionallowsrecourse
to the exceptio in response to an alleged breach of treaty generally
outside of the conditions expressly provided by Article 60, and has
notshownthatArticle60ofthe1969ViennaConvention(andrelated
procedures) provides anything other than a complete set of rules and
procedures governing responses to a material breach by one party to
334
a treaty under the strict conditions established thereunder;
• hasfailedtoestablishthattheexceptioisrecognizedinanyformasa
principle justifying non-performance of treaty obligations under the
335
law of State responsibility;
334
See Memorial, paras. 5.20-5.40.
335 See Memorial, paras. 5.41-5.54.
- 149 - • further or in the alternative, even if the exceptio non adimpleti
contractuswas available under general international law or the law
oftreatiesorthelawofStateresponsibility,whichisdenied,hasfailed
to prove that it excuses breach of a treaty obligation as a response to
a wholly different and causally unrelated treaty obligation; and
• hasfailedtoprovefactsthatwouldjustifytheinvocationofanysuch
principle in defence to its violation of Article 11(1) of the Interim
Accord.
5.52. The Respondent fails on each of these points. As described in Chapter
336
1 of this Reply, and addressed in further detail below, the Respondent has
not provided an accurate account of the authorities on which it relies or the
commentary. As described below, theexceptio non adimpleti contractus is not
a principle or rule of law that has any application to this case, either as a matter
of treaty law within Article 60 of the 1969 Vienna Convention or the law of
State responsibility, or general international law. Even if it were, the treaty
obligationsundertheInterimAccordthatareinissueareunconnectedtoeachother
and/or not of a nature to permit of any applicability of anyexceptio principle
to the facts of this case. In these circumstances the litany of alleged violations
of the InterimAccord by theApplicant, which are without basis and which are
stronglydenied, areentirelyirrelevanttothedisputecurrentlybeforetheCourt
and need not be addressed by it.And it cannot be said that firm rejection of the
argument would leave the Respondent without a remedy. As described in the
Memorial and in Chapter II, at no point before it objected inApril 2008 did the
RespondentformallyassertinwritingtotheApplicantthatitwasinbreachofthe
Interim Accord. If the Respondent had had any serious concerns about alleged
violations of the InterimAccord, it could have formally raised those allegations
with the Applicant – in a manner consistent with the requirements of the 1969
ViennaConvention–beforeitobjectedtotheApplicant’sNATOmembership;it
neverdidso.UnderArticle21oftheInterimAccordtheRespondentcouldhave
336 See Reply, Chapter 1, para. 1.15.
337
See Memorial, paras 5.55-5.68.
- 150 -brought a claim to this Court: it did not do so. These failures to act are telling,
and they undermine the newly embraced argument based on the exceptio.
5.53. What the Respondent is not entitled to do – against the background of
the various options that were available to it under the InterimAccord, the 1969
Vienna Convention and the law of State responsibility – is to ignore established
proceduresandconjureupanovellegalargumentthat,ifacceptedasbeingeven
arguable,wouldintroducenewuncertaintiesintotreatyrelationsbetweenStates.
The Respondent’s argument has broad implications, justifying unilateral non-
performance of treaty obligations without any procedural safeguards, precisely
whatthedraftersofthe1969ViennaConventionsoughttoavoid.Ifaccepted,the
Respondent’sargumentwouldsetasidethebalancecarefullydrawninthelawof
treaties as to responses to material breach and in the law of State responsibility
astolawfulcountermeasures.Theimplicationshavebeenrecognizedbyleading
authorities, who have reasonably concluded that there are powerful reasons
against adding “another general excuse” for non-performance of international
obligations beyond those set out in the ILCArticles.338
B. T h eE x cEp t s N O TAP Pl iCl eAs A g eNe rAlP r iN CiPl elA W
5.54. TheRespondentassertsthatthe exceptioargumentderivesfromaprinciple
of reciprocity that allows a State to defend itself against a claim by another
State that the first State has failed to perform a treaty obligation, where it can
be shown that the second State has itself failed to perform an obligation arising
339
under the same treaty. Yet no international court or tribunal has recognized
that the exception of non-performance exists as a principle or rule of general
international law applicable in the modern system of treaty relations.
5.55. On what authorities, then, does the Respondent rely in support of its
claim that theexceptio is “a defence against a claim of non-performance of a
338 J. Crawford and S. Olleson: “The Exception of Non-Performance: Links between the Law
of Treaties and the Law of State Responsibility”1ustralian Yearbook of International
Law55, at p. 74.
339 Counter-Memorial, paras. 8.3 and 8.6.
- 151 - 340
conventional obligation”? Areview of its argument demonstrates that it rests
on limited and old authorities that predate the adoption of the modern rules of
international law on treaties and on State responsibility.
5.56. The Respondent invokes a dissentingopinionof 1937 of JudgeAnzilotti
in the Diversion of Water from the Meuse case. In that case, Belgium had
claimed that, by contracting works that were alleged to be contrary to a treaty,
theNetherlandshadforfeiteditsrighttoinvokethattreatyagainstBelgium.The
Permanent Court did not accept the argument, said nothing about the exceptio,
and decided that neither the Netherlands nor Belgium had violated their treaty
obligations. Some seven decades after Judge Anzilotti wrote that the principle
inadimplenti non est adimplendum “is one of these ‘general principles of law
recognized by civilized nations’which the Court applies in virtue ofArticle 38
of its Statute”,341 his view has yet to find favour with any international court
or leading commentator. The principle was not included in the 1969 Vienna
Convention on the Law of Treaties, outside ofArticle 60. To the extent that the
exceptio principle might be said to have an independent existence as a principle
of international law, it has been incorporated intoArticle 60 of the 1969 Vienna
Convention, as described below. The drafters of the Vienna Convention seem
to have kept in mind the prudent approach articulated by Judge Hudson, in an
Individual Opinion also in the Meuse case. 342
5.57. The Respondent relies on a 1983 award of an ICSID arbitral tribunal in
theKlöcknercase,butitiseasilydistinguishable:theICSIDtribunalinthatcase
applied theexceptio in relation to a claim made under a contract (not a treaty)
andonlyasaprincipleofFrenchlaw(notinternationallaw),theTribunalhaving
decided that “only that part of Cameroonian law that is based on French law
should be applied in the dispute. But in any event, even this limited finding
340
Counter-Memorial, para 8.6.
341 Diversion of Water from the Meuse (Netherlands v Belgium), Judgment of 28 June 1937,
P.C.I.J. Series A/B No. 70 (28 June 1937), Dissenting Opinion of M. Anzilotti at pp. 45 and 50.
342 Ibid., Individual Opinion of Judge Hudson, at pp. 73 and 77.
343 KlöcknerIndustrie-AnlagenvUnitedRepublicofCameroonandSociétéCamerounaisedes
Engrais, ICSID Case No. ARB/81/2, Award, 21 October 1983, 2 ICSID Rep 9 (1994), Decision
- 152 -does not assist the Respondent as the decision was subsequently annulled by an
Ad Hoc Committee. 344
5.58. The2000ILC’sArticlesontheResponsibilityofStatesforInternationally
WrongfulActsalsodonotincorporateanyreferencetothe exceptio.Itisoflittle
surprise, then that leading commentators concluded, at the time of the adoption
of the ILC Articles on State Responsibility, that “uncertainty remains as to
345
the status of the exception of non-performance in international law”. These
commentators went even further, writing that on the basis of a comparative
review that:
‘[o]necanhardlyavoidtheconclusionthattheexceptionofnon-performance
is under-theorised and that it has not established an independent
346
place as a rule or principle of international law’. [emphasis added]
5.59. AnanalysisofcomparativelawdoesnotassisttheRespondent.Itreveals
no consistent understanding of the status, availability and effect of the exceptio
in domestic legal systems, making it impossible to support the Respondent’s
far-reaching conclusion that it has achieved the status of a general principle of
law recognized by civilized nations. Having reviewed comparative practice,
leading commentators have concluded that the teachings of comparative law
on the exceptio,
“hardly justify categorising the exception as general principle of law in
the sense of Article 38(2)(c) of the Statute of the International Court of
347
Justice.”
oftheAdHocCommitteeonAnnulment,3May1985,1ICSIDReview-ForeignInvestmentLaw
Journal 89 (1986) (English translation of French original) at p.105.
344
Ibid., at p. 141, para. 170.
345 J. Crawford and S. Olleson: “The Exception of Non-Performance: Links between the Law
of Treaties and the Law of State Responsibility”, (201ustralian Yearbook of International
Law55, at p. 56.
346 Ibid., at p. 73.
347 J.CrawfordandS.Olleson,“TheExceptionofNon-Performance:LinksbetweentheLawof
TreatiesandtheLawofStateResponsibility”,(2001)2 A1ustralianYearbookofInternationalLaw
- 153 -5.60. An even more recent article, published in 2009, concludes that whilst it
maybesaidthattheexceptioisamaximoflong-standingandgeneralacceptance
in the civil law world,
“claims of the universality of the principle embodied by theexceptio
are overblown. No common law legal system states a general right of
creditors to suspend performance and, even within the civil law world,
there is not agreement”.348
5.61. This commentator adds that:
“[a]n international consensus therefore cannot be said to exist that
349
creditors have a general right to suspend performance.”
5.62. Againstthisbackground,theApplicantinvitestheCourttoconcludethat
theRespondenthasnotcomeevenclosetoestablishingthattheexceptionofnon-
performancehasanindependentexistenceasafreestandingprincipleoutsideof
thelawoftreatiesorthelawofStateresponsibilityorrulesofgeneralinternational
law that is in any way applicable or relevant to these proceedings.
C. T h eEx cEp t d Oe sN O TAssiTs Th r e sP Od eN TuNd e rTh lA WOf T r eATi e s
5.63. The Respondent asserts that the exceptio shares something with the
principle embodied in Article 60 of the Vienna Convention on the Law of
350
Treaties. Yet it also notes that during consideration of the law of treaties by
the International Law Commission, circumstances justifying non-performance
of treaty obligations, on the basis of reciprocity, were considered by the Special
55, at p. 73. The authors refer to Professor Treitel’s work on Remedies for Breach of Contract, in
which he observes that a comparative discussion of the reexceptioposes ‘unusually
intractable difficulties’.
348 J.Karton,“ContractLawinInternationalCommercialArbitration:TheCaseofSuspension
of Performance” (2009) 58 International and Comparative Law Quarterly 863, at p. 866.
349 Note 348supra, at p. 866.
350 Counter-Memorial, para. 8.13.
- 154 - 351
Rapporteur,SirGeraldFitzmaurice. Intheend,theonlyprovisionofthe1969
Vienna Convention which relates to theexceptio isArticle 60, the conditions of
which the Respondent recognizes it cannot meet.
5.64. TheApplicantandRespondentarepartiestothe1969ViennaConvention,
the relevant rules of which reflect customary international law.Article 60 of the
1969 Vienna Convention on the Law of Treaties sets out the circumstances in
whichaStatepartytoatreatymightsuspendorterminatethattreatyinresponse
to a material breach by another party, subject to the procedural requirements set
outinArticles65to68.TheseprovisionsarebindingonbothPartiesastreatylaw
and customary law, recognising that in 1971 the Court confirmed that the rules
reflected inArticle 60 “may in many respects be considered as a codification of
existing customary international law”. This conclusion has been confirmed
more recently by the Court’s judgment in the case concerning the Gabcikovo-
Nagymaros Project, noting the “limitative” scope of the conditions of Article
353
60. The 1969 Convention does not otherwise address consequences of non-
performance of treaty obligations.Article 42(2) provides that:
“Theterminationofatreaty,itsdenunciationorthewithdrawalofaparty,
may take place only as a result of the application of the provisions of the
treaty or of the present Convention.The same rule applies to suspension
of the operation of a treaty.”
5.65. This indicates that any suspension of a treaty or a part of it – such as the
obligation inArticle 11(1) of the InterimAccord not to object to theApplicant’s
membershipofinternationalorganizationsiftherequisiteconditionsaremet–is
to be assessed exclusively by reference to the conditions set out inArticle 60 of
354
the 1969 Convention.
351
InternationalLawCommission F,ourthReportontheLawofTreatib eyMr G.G.Fitzmauric ,e
Special Rapporteur, A/CN.4/120, at p. 46.
352
Namibia (South West Africa), Advisory Opinion, I.C.J. Reports 11. 16 at para. 95.
353 Case concerning the Gabcikovo-Nagymaros Proje,cIt.C.J. Reports 199, p. 7 at para. 47.
354 As regards retaliatory suspension of performance of treaty obligations, as distinct from
abrogationofthetreaty,LordMcNairnotedthatwhile‘[i]npractice,atanyrateinregardtominor
- 155 -5.66. The rationale of Article 60, its relationship to the exceptio, and its
purposely limited scope within the law of treaties, has been clearly recognized
by leading authorities:
“The underlying idea ofArticle 60 is the principle inadimplenti non est
adimplendum,accordingtowhichapartymaynotbeheldtorespecttreaty
obligations if the other party refuses to honour its obligations and if the
two obligations have a synallagmatic relationship. […] The drafters of
the Vienna Convention sought to balance two opposing interests: whilst
they wanted to promote the stability of treaty relations, they equally
wanted to take into account the interest of States to liberate themselves,
temporarily or permanently, from treaty obligations which would have
losttheireffectivenessbyreasonofapriorviolationbyadefaultingState.
Article60constitutestheresultofthisconciliationofcompetinginterests,
establishing an extremely complex regime … The main characteristics
of this regime … include its limitation to material breaches as the only
ones susceptible to allow a right to suspend [a treaty] ….” 355
5.67. Despite the clear rule set forthinArticle60,anditsunderlyingrationale,
the Respondent argues that the 1969 Convention does not address the subject
breaches of treaty, it is not uncommon for the injured State, by way of sanction, to suspend the
operation of a provision corresponding to, or analogous with, the provision br.eTnhe precise
juridical status of this practice is not clear, and little authoritshe practice seems to fall
into the category of non-forcible reprisals, and it does not evince an intention to abrogate either
the whole treaty or the portion of it which has been broken.’ Lord McNai:e Law of Treaties,
Oxford, Oxford University Press, 1961, at p. 573 [emphasis added].
355
B.SimmaandC.Tams,‘Article60’,inOlivierCortenandPierreKlein(eL des, onventions
de Vienne sur le droit des traités: Commentaire article par art,le006, volume [x], p. 2134-5
(informaltranslationfromFrench):“L’idéesous-jacenteàl’article60estleprinciip nadimplenti
nonestadimplendum ,selonlequelunepartienepeutêtretenuederespecterlesobligationsprévues
dans un traité si l’autre partie refuse d’honorer les siennes et si les deux obligations forment un
rapport synallagmatique. […] Les rédacteurs de la Convention de Vienne ont eu à établir un
équilibre entre deux intérêts opposés: alors qu’en général ils entendaient promouvoir la stabilité
des relations conventionnelles, ils n’en devaient pas moins prendre en compte l’intérêt des Etats
à se libérer, de manière temporaire ou permanente, des obligations d’un traité qui auraient perdu
leur efficacité en raison d’une violation antérieure par un Etat défaillant. L’article 60 constitue le
résultat de cette conciliation d’intérêts opposés, en instaurant un régime extrêmement complexe
…Autitredescaractéristiquesprincipalesdecerégime…l’onpeutmentionnerlalimitationaux
violations substantielles, seules retenues comme susceptibles d’ouvrir le droit de suspendre…”.
- 156 -of theexceptio in the law of treaties in an exhaustive manner and leaves open a
different exceptio principle to govern the consequences of other, non-material
breaches. The argument is obviously contradicted by Article 42 of the 1969
Convention, as noted above.
5.68. Accordingly, the argument must be firmly rejected by the Court. Its
acceptancewouldleadtotheunhappyresultthattheproceduralsafeguardsputin
placebythedraftersofthe1969Conventioncouldbecircumventedbythesimple
expedience of a State characterizing a breach as non-material. This would be a
recipe for disaster in the law of treaties, opening the door to unilateral decisions
and suspensions. The point has been powerfully put by leading commentators,
who succinctly and clearly explain the rationale for the limited approach to the
exceptio set forth inArticle 60:
“Doctrine establishes that the non-respect of a treaty by one party can
lead to its … suspension until the cessation of the violation; case-law
confirms the rule addressed by Article 60 of the Vienna Convention on
the Law of Treaties.
This principle, which may be [connected to] the traditional rule of
reciprocityandthelegalityofnon-militaryreprisals,appliedinresponse
to acts that are contrary to international law, … must nevertheless be
appliedwithcaution.Experienceprovesineffectthatonepartyfrequently
invokes an imaginary or anodyne violation to denounce unilaterally a
treaty that is inconvenient or to suspend its application. That is why
Article60limitsthepossibilityofapplyingtheprincipleon fonadimpleti
contractus exclusively to material breaches.” 356
356 th
Patrick Daillet & Alain Pellet,Droit International Public, 8 edition(2009),No.199
(informal translation of French original:)“La doctrine admet que le non-respect d’un traité par
une partie peut entrainer … sa suspension jusqu’a la cessation de la violation; la jurisprudence
confirme cette règle que consacre l’article 60 de la Convention de Vienne sur le droit des traités.
Ce principe qui peut être rapproché de la règle traditionnelle de la réciprocité et de la licéité des
représailles pacifiques, exercées en riposte a des actes contraires au droit international … doit
cependantêtreappliquéavecprudence.L’expérienceprouveeneffetqu’unepartieinvoquesouvent
une violation imaginaire ou anodine pour dénoncer unilatéralement un traité qui la gène ou en
suspendre l’application. C’est pourquoi l’article 60 limite la possibilité d’appliquer le principe
non adimpleti contractus au seul cas de violation substantielle”, at p. 10.
- 157 -5.69. TheRespondent’sargumentfacesanotherdifficulty:itassertsthroughout
its Counter-Memorial that the Applicant has acted in material breach of the
Interim Accord, and it was these acts that led the Respondent to object to the
Applicant’s membership of NATO. TheApplicant cannot have it both ways:
either the alleged breach or breaches were material, or they were not. If the
allegations relate to material breaches, then they are governed byArticle 60 of
theVienna Convention, and the Respondent should therefore have followed the
steps available to it under that Article andArticles 65 to 68. It did not do so. If
the allegations are not so related, then the Respondent is faced with the absence
of any rule in the 1969 Vienna Convention – or anywhere else in the law of
treaties – that could allow it to suspend unilaterally its obligation underArticle
11(1) of the InterimAccord.
5.70. All that is left to the Respondent is the possibility of invoking Article
73 of the 1969 Vienna Convention, which provides that the provisions of the
1969 Convention “shall not prejudge any question that may arise in regard to a
treaty … from the international responsibility of a State”. The interrelationship
betweenArticle 60 of theVienna Convention and the circumstances precluding
wrongfulness under the law of State responsibility was addressed by the
International Court in theCase concerning the Gabcikovo Nagymaros Project,
where it recognized that the doctrine of necessity (arising under the law of State
responsibility) could preclude wrongfulness in relation to the non-performance
of a treaty obligation. The Court ruled that:
“an evaluation of the extent to which the suspension or denunciation of
a convention, seen as incompatible with the law of treaties, involves the
responsibility of the State which proceeded to it, is to be made under the
law of State responsibility.” 358
5.71. The difficulty for the Respondent is that that the part of the law of State
responsibilityonwhichHungaryreliedintheGabcikovo-Nagymaroscase–the
357 Counter-Memorial, Chapter 8.
358
Case concerning the Gabcikovo-Nagymaros Proje,cIt.C.J. Reports 1, p. 7 at para. 47.
- 158 -doctrine of necessity – was already well established and defined in the ILC’s
draft articles. By contrast, in the present case there is nothing in the law of State
responsibility on which the Respondent can rely in relation to texceptio that
is remotely analogous to the well-developed doctrine of necessity, as discussed
in the following sub-section. Put simply, the law of State responsibility does
not support the Respondent’s reliance on theexceptio to justify its wrongful
actions,andthereforecannotsupportinvocationofArticle73ofthe1969Vienna
359
Convention.
D. T h eE x cEp tDiOe sN O TAssiTs Th r e sP d eN TuNd e rTh lA WOf s T AT
r e sP s iBiiyT
5.72. Recognising that its version of the exceptio is not part of the law of
treaties, the Respondent asserts that its approach is rooted in the law of State
responsibility.60This claim suffers from an immediate flaw: the ILC Articles
on State responsibility do not contain any principle of exceptio, whether as
characterized by the Respondent or otherwise.As described below, theexceptio
wasthesubjectofextensiveattentionbythemembersoftheILCintheelaboration
of theArticles, but a ‘narrow’(or ‘limited’) version of theexceptio for which a
drafttextwaspreparedwasultimatelydropped,andabroaderversionforwhich
the Respondent now argues never even got to the stage of a draft text, due to the
absence of support for such a version. Ultimately, both the narrow and broad
versions were rejected by the members of the ILC as having no place in the law
of State responsibility. In short, there is nothing in the ILC Articles as adopted
to support the Respondent’s argument.
5.73. AccordingtotheRespondent,aninjuredpartythatfacesthe“non-execution
ofaconventionalagreement”may“forthwithhaverecoursetotheexceptio”,on
the basis that the treaty will remain in force but the injured party “will be able
to withhold the execution of its own obligations, which are synallagmatic to the
359 Article 73: “The provisions of the present Convention shall not prejudge any question that
mayariseinregardtoatreatyfromasuccessionofStatesorfromtheinternationalresponsibility
of a State or from the outbreak of hostilities between States.”
360 Counter-Memorial, para. 8.13.
- 159 -ones not performed by the other Party”. If reliance on theexceptio does not
causethenon-performingpartytoresumecompliancewithitstreatyobligations
thentheinjuredpartycanhaverecoursetoitsrightsundertheprinciplesreflected
362
in Article 60 of the 1969 Vienna Convention. In this way, according to the
Respondent, the law of State responsibility introduces a whole new set of prior
rights and procedures into the 1969 Vienna Convention.
5.74. The Respondent has considerable difficulty in citing any provision of
the ILCArticles on which it might rely. It refers to a set of draft articles dealing
withthesuspensionofreciprocalobligations,asdistinctfromreprisals,thatwas
proposed by Special Rapporteur W. Riphagen in 1985. Unfortunately for the
Respondent,thatdraftgarneredlittlesupportandwasabandoned.However,the 364
Respondentassertsthat“thedistinctiondrawnbyRiphagenwasfirmlyendorsed
365
by the last Special Rapporteur of the ILC on the topic, J. Crawford”. Whether
or not that be the case – and it is a curious reading of the numerous and careful
writings of the “last Special Rapporteur” – the fact is that the approach did not
find support with the membership of the ILC.
5.75. As noted, and summarizing generally, theexceptio was considered in
twodistinctversionsintheworkoftheILConStateresponsibility:anarrow(or
limited)versionandabroadversion.Thenarrowversionpositedtheideathatthe
exceptio principle is available where one State has, by its unlawful act, actually
prevented the other from complying with its treaty or other obligations, that is
to say from complying with the same or a related obligation in the context of a
direct, causal link. This narrow version was the subject of a drafting effort by
the ILC Special Rapporteur in [1999], which provided that:
361 Counter-Memorial, para. 8.15.
362 Ibid.
363 Counter-Memorial, para 8.14.
364
InternationalLawCommission,SecondReportonStateResponsibility,MrJamesCrawford,
SpecialRapporteur,A/CN.4/498/Add.2Y ,earbookoftheInternationalLawCommission 192, vol
II, Part Two, p. 23, para. 151.
365 Ibid., note 363 supra.
366
Ibid., note 364 supra, at para. 326.
- 160 - “ThewrongfulnessofanactofaStatenotinconformitywithaninternational
obligation of that State is precluded if the State has been prevented from
actinginconformitywiththeobligationasadirectresultofapriorbreach
of the same or a related international obligation by another State.” 367
5.76. Itisimmediatelyapparentthatthisnarrowversionwouldnothaveassisted
the Respondent, even if it had been adopted, since it cannot be argued that the
Respondent was “prevented” from meeting its obligation underArticle 11(1) of
theInterimAccordasa“directresult”ofanallegedpriorbreachoftheApplicant.
The Respondent may not have wanted to meet its Article 11(1) obligation, but
there was nothing to stop it from doing so. In any event, the draft did not find
368
favour with the ILC, which rejected even this narrow version of the exceptio.
5.77. AgainstthisbackgroundtheRespondent’sefforttorelyonabroaderand
morefar-reachingversionofthe exceptioishopeless.Onthebroaderversionthere
isnodirectcausallinkbetweenthetwoobligations,sothatthenon-performance
of one obligation would not have the effect of preventing the performance of
the other obligation. This appears to be the version expressed by Judge Hudson
369
in Diversion of Waters from the Meuse case. This broader version was not
the subject of any drafting exercise by the ILC Special Rapporteur as the ILC’s
work on State responsibility was brought to a conclusion in the late 1990’s.The
Special Rapporteur recognized the same difficulties as his fellow members of
370
the ILC that were referred to above. He recommended that the issues raised
by the broad application of an exceptio should be dealt with by other means:
“Theunderlyingproblemisthatabroadviewofthe exceptiomayproduce
escalatingnon-compliance,negatingforpracticalpurposesthecontinuing
367 Ibid., note 364 supra, Article 30bis, at pp. 57-58.
368 In his 2000 Report, the International Law Commission’s Special Rapporteur described the
“narrow”exceptioas“butanapplicationofthegeneralprinciplethatapartyshouldnotbeallowed
torelyontheconsequencesofitsownunlawfulconduct”:InternationalLawCommissio Tnh,ird
ReportonStateResponsibility:Addendu ,UNDocA/CN.4/507/Add.1(15June2000),atpara.366.
369 Diversion of Water from the Meuse (Netherlands v Belgium), Judgment of 28 June 1937,
P.C.I.J. Series A/B No. 70 (28 June 1937), Individual Opinion of Judge Hudson, at pp. 73 - 77.
370 Patrick Daillet & Alain Pellet, Droit International Public, 8th edition (2009), No. 199 at p. 310.
- 161 - effectoftheobligation.ForthesereasonstheSpecialRapporteurisfirmly
of the view that the justification for non-compliance with synallagmatic
obligations should be resolved (a) by the law relating to the suspension
or termination of those obligations (which is sufficient to deal with most
371
problemsoftreatyobligations),and(b)bythelawofcountermeasures.”
5.78. TheSpecialRapporteuralsosuggestedthatthismattermightbeaddressed
by means of treaty interpretation. 372
5.79. TheILCacceptedtheSpecialRapporteur’srecommendationand,having
rejected the narrow version reflected inArticle 30bis, decided against including
in the law of State responsibility the broad version of theexceptio on which the
Respondent relies. Lest there be any doubt, the ILC Commentary prepared in
2001 makes the point clearly and without any hint of ambiguity:
“ChapterVsetsoutthecircumstancesprecludingwrongfulnesspresently
recognized under general international law. Certain other candidates
have been excluded. For example, the exception of non-performance
(exceptio inadimpleti contractus) is best seen as a specific feature of
certain mutual or synallagmatic obligations and not a circumstance
precluding wrongfulness.” 373
371 InternationalLawCommissionS,econdReportonStateResponsibility,MrJamesCrawford,
Special Rapporteur, UN Doc A/CN.4/498/Add.2, at para. 329. In his Third Report the Special
Rapporteur concluded that “There seems little doubt that in its broader form [i.e. not the 1999
Article 30 bis formulation] the exception of non-performance should be regarded as based upon
treaty or contract interpretation, performance of the same or related obligations being treated as
conditional”: International Law CommissionT,hird Report on State Responsibility: Addendu,m
UN Doc A/CN.4/507/Add.1 (15 June 2000), at paras. 363-366. The Respondent has not sought
to argue – and cannot argue – that its obligation under Article 11(1) of the Interim Accord is
conditional upon any of the other obligations being met.
372 International Law Commission,Third Report on State Responsibility: Addendum , UN
Doc A/CN.4/507/Add.1 (15 June 2000), at para. 366: “There seems little doubt that in its broader
form the exception of non-performance should be regarded as based upon treaty or contract
interpretation, performance of the same or related obligations being treated as conditional”.
373
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of
theInternationalLawCommissionontheWorkofItsFifty-thirdSession,UNGAOR,56thSess.,
Supp. No. 10, at 43, UN Doc. A/56/10 (2001), at p. 72.
- 162 -5.80. The record of the ILC’s efforts is fatal to the Respondent’s reliance on
the exceptio. Following the recommendation of the Special Rapporteur and the
decision of the ILC, the Respondent’s argument therefore falls to be addressed
by reference to the law set forth in Article 60 of the 1969 Vienna Convention
or the law of countermeasures.As noted above, the Respondent recognizes that
it cannot meet either set of conditions, and therefore has not sought to invoke
Article 60 or the law on countermeasures. That is the end of the matter.
E. T h eOBl iATiO Ns AissueiN Th er e sP d eN’s de fN CeA r eNO T
‘syN Al lAgM iC’Or d i C TlyC O NeC Te dAs AQ u iD p Q u o
5.81. Giventheabsenceofanysupportininternationallawforanindependent
exceptio principle, there is no need for the Court to address in any detail the
Respondent’s assertions to the effect that the Applicant has breached various
obligationsundertheInterimAccord,assertionsthattheApplicantfirmlyrejects.
However,itisimportanttounderscore,forthesakeofcompleteness,evenifthe
exceptioprincipleexistedandwereappliedinthiscase,itwouldfailtoassistthe
Respondentsincetheobligationsatissuearenotdirectlyconnectedtoeachother.
ContrarytotheRespondent’sclaim,thecommitmentsundertakenbytheParties
in the InterimAccord set out by the Respondent in Chapter 8, Section III of its
Counter-Memorial, are in no way “synallagmatic” or directly linked as a “quid
pro quo”. Therefore, the alleged breach of one commitment by one Party could
not, on any view, justify the breach by the other Party of another commitment.
5.82. The Respondent asserts that its commitment under Article 11(1) not to
objecttoitsmembershipininternational,multilateralandregionalorganizations
and institutions was given “in exchange” for three reciprocal commitments by
the Applicant, namely: (i) “to cease its irredentist and otherwise antagonizing
behavior”, (ii) “to be referred to as the FYROM in international▯ organizations,
and (iii) “to negotiate [a resolution of the difference over the name] in good
374
faith”. This assertion, which is the foundation for the Respondent’s entire
defence based on theexceptio is unsustainable. Contrary to the Respondent’s
374 Counter-Memorial, para. 8.31(i).
- 163 -assertion, the “conditions” on which it relies as “triggering recourse to the
exceptio” 375are unsubstantiated. In particular, the Respondent has:
• failed to provide any support whatsoever for its assertion that its
commitment under Article 11(1) was given “in exchange” for the
threemattersitlistsascommitmentsundertakenbyApplicant,orthat
the four commitments it asserts as being “synallagmatically” linked
were ever intended by the Parties to be so. 376
• failed to provide any support for its claim that the Applicant made
threedistinct commitments under the InterimAccord “in exchange”
for a single commitment on its part.
• ignored the fact that the commitments to negotiate in good faith
(Article 5) and to refrain from hostile activities (Articles 7(1) and
7(3)) are incumbent onbothParties, not just on theApplicant: these
were not undertakings given by the Applicant to the Respondent,
but obligations assumed byboth Parties: they could not thus have
been given by the Applicant alone “in exchange” for an obligation
incumbent solely on the Respondent.
• sought to imply into Article 11(1) an undertaking by the Applicant
to be referred to as, and to call itself, ‘the formerYugoslav Republic
ofMacedonia’:asthedetailedanalysisofArticle11(1)inChapterIV
has demonstrated, theApplicant made no such undertaking.
375 Counter-Memorial, p. 179.
376 In so doing, the Respondent has ignored the evidence it submitted to the Court which
suggests that, if any undertaking by the Applwtasever deemed by the Parties to be directly
linked to the Respondent’s Article 11(1) obligation, it was the undertaking by the Applicant to
changeitsnationalflag:seeCounter-Memorial,Annex148,draftc),reproducedatReply,Annex
61. The Applicant legislated to change its national flag on 6 October 1995, and duly changed
its flag on the coming into force of the Interim Accord: Memorial, para. 2.39. The Respondent
could therefore not assert that the Applicant is in breach of that obligation. See further, “Ruth
Wedgwood,“Macedonia:aVictoryforQuietDiplomacy C”,ristianScienceMonitor(19 October
1995): Reply, Annex 88.
- 164 -5.83. Giventhatthetreatyobligationsatissuearenotsynallagmaticorreciprocal,
theRespondent’sentirebasisforitspurportedrecoursetothe exceptioissimply
unsustainable.
f. Th er e sP Od eN s A l l ATiO Ns OfV iOlATiO Ns Of Th iN Te iMA C C r dBy
Th e AP Pl iC AANr eu NfOuNd e d
5.84. The Respondent’s factual assertions are equally unsupported. The
Respondent asserts that theApplicant is in breach ofArticles 5, 6(2), 7(1), 7(2),
7(3) and 11, which it claims were commitments given by the Applicant as a
“quid pro quo” for a commitment by the Respondent under Article 11(1). This
is strongly denied. The Applicant is not in breach of any article of the Interim
Accord. The allegations made by the Respondent in its Counter-Memorial are
simply not capable of amounting to breaches of the InterimAccord, much less
materialbreacheswarrantingtheRespondent’sobjectiontotheApplicant’sNATO
membership, in breach ofArticle 11(1). This is so for a number of reasons.
• The Applicant has also had cause to raise serious complaints with
the Respondent over the course of the past 15 years since the signing
377
of the InterimAccord, concerning breaches of the InterimAccord,
and repeated attacks and threats against its diplomatic premises 378
and citizens.379This belies the Respondent’s presentation of such
377 See,e.g.,Noteverbaledated26August2009fromtheApplicant’sLiaisonOfficeinAthensto
theRespondent’sMinistryofForeignAffairs:Reply,Annex3N7o;teverbale dated 22 March 2010
fromtheApplicant’sOfficeforConsular,EconomicandCommercialAffairstotheRespondent’s
Ministry of Foreign Affairs: Reply, Annex 5dote verbale dated 31 March 2010 from the
Applicant’s Liaison Office in Athens to the Respondent’s Ministry of Foreign Affairs: Reply,
Annex55.SeealsotheRespondent’sreply:Verbalnotedated30April2010fromtheRespondent’s
Ministry of Foreign Affairs to the Applicant’s Liaison Office in Athens: Reply, Annex 56.
378
See, e.g.,Note verbale dated 25 December 2003 from the Applicant’s Liaison Office in
Athens to the Respondent’s Ministry of Foreign Affairs: Reply, 3; te verbale dated 6
November 2007 from the Applicant’s Liaison Office in Athens to the Respondent’s Ministry of
ForeignAffairs:Reply,Annex25;andNoteverbale dated 10 February 2009 from the Applicant’s
Liaison Office in Athens to the Respondent’s Ministry of Foreign Affairs: Reply, Annex 34.
379 See,forexample,Noteverbaledated12May2008fromtheApplicant’sMinistryofForeign
Affairs to the Respondent’s Liaison Office in Skopje: Reply, Ann; ote verbale dated
15 May 2008 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison
- 165 - issues and incidents as being entirely one-sided or demonstrative
of a unilateral breach of the Interim Accord by the Applicant.
They are simply irrelevant to the dispute before the Court.
• A significant proportion of the Respondent’s allegations postdate
the Bucharest Summit. They are incapable, as a matter of fact, of
having impacted on the Respondent’s breach ofArticle 11(1), which
crystallized on 3April 2008.As a matter of law, they are necessarily
ofnoconsequenceinassessingthelegalityoftheRespondent’sprior
objection. 381They are therefore irrelevant to the claim before the
Court.Further,wherethemattersinquestionhavebeencommunicated
formally to the Applicant, the latter has provided the Respondent
382
with detailed responses, and taken action where appropriate. For
example, the symbol complained of by the Respondent at paragraph
Office in Skopje: Reply, Annex 31, andNote verbale dated 6 March 2009 from the Applicant’s
Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje: Reply, Annex 35.
380
See, e.g., Counter-Memorial, paras 4.7, 4.17 to 4.22, 4.25 to 4.26, 4.34, 4.53 to 4.55, 4.59
and 4.63. Many of the allegations made by the Respondent in its Counter-Memorial have been
raised with the Applicant in a steady flow of diplomatic notes which the Respondent has sent to
the Applicant since the initiation of the current proceedings: see paras. 2.68 and 5.57-5.60 of the
Memorial. See also, e.g., Memorial annexes 51, 52, 59, 60 and 64, and more recently: Verbal note
dated9November2009fromtheRespondent’sLiaisonOfficeinSkopjetotheApplicant’sMinistry
ofForeignAffairs:Reply,Annex44;Verbalnotedated12November2009fromtheRespondent’s
Liaison Office in Skopje to the Applicant’s Ministry of Foreign Affairs: Reply, Annex 46.
381
Memorial, para. 1.10.
382 See, e.g., Annexes 54-57 and 61-63 of the Memorial. See also, more recentl,te verbale
dated 26 August 2009 from the Applicant’s Liaison Office in Athens to the Respondent’s
Ministry of Foreign Affairs: Reply, Annex 38N ; ote verbaledated 8 October 2009 from the
Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje: Reply
Annex 41; Note verbale dated 15 February 2010 from the Applicant’s Ministry of Foreign
Affairs to the Respondent’s Liaison Office in Skopje: Reply, Annex 5N1;ote verbale dated 15
February 2010 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison
Office in Skopje: Reply, Annex 52; Where the Respondent has raised allegations of breach
of the Interim Accord with the Secretary General of the United Nations (see, e.g. Letter
dated 25 September 2009 from the Respondent’s Permanent Representative to the United
Nations, Anastassis Mitsialis, to the President of the General Assembly, UN doc. A/64/468
(2 October 2009): Reply Annex 21), the Applicant has responded in correspondence to the
United Nations: see, e.g., letters dated 17 November 2008 (Reply, Annex 19), 23 July 2009
(Reply, Annex 20) and 20 October 2009 (Reply, Annex: 22) from the Applicant’s Permanent
RepresentativetotheUnitedNations,SlobodanTašovski,totheUnitedNationsSecretary-General.
- 166 - 4.59 of its Counter-Memorial no longer features in the square of the
municipality in question. 383
• Conversely, a number of the other allegations made by the
Respondent relate to matters thatpredate the Bucharest Summit by
a considerable period of time and had long terminated by 3 April
2008. 384For example, the postage stamps of which the Respondent
complains at paragraph 4.61 of its Counter-Memorial ceased to be
issued in 2002. As such, even if they were capable of amounting
to a breach of the Interim Accord, which is strongly denied, they
were not ongoing in 2008, such as to be capable of justifying the
Respondent’s breach of Article 11(1), nor are they current disputes
with which the Court could now, on any view, be properly seized.
• The subject matter of the issues raised by the Respondent is also
incapable of constituting a breach of the Interim Accord, much less
capable of justifying the Respondent’s actions in objecting to the
Applicant’s NATO membership. For example, the Respondent’s
contention that an incident involving primary-school-age children
throwing a number of small pebbles from their school yard into
the neighbouring garden of the Respondent’s Ambassador 385was
part of a “systematic campaign to intimidate and terrorise the Greek
diplomatic staff in Skopje”, 386 is patently absurd. It is even more
absurdfortheRespondenttosuggestthatthisincident,takenaloneor
in conjunction with other incidents, demonstrates that theApplicant
“failed to take the necessary measures of protection required both
by diplomatic law and by the obligation set forth in Article 7 of
383 Note verbale dated 26 August 2009 from the Applicant’s Liaison Office in Athens to the
Respondent’s Ministry of Foreign Affairs: Reply, Annex 38.
384 See, for example, Counter-Memorial, paras. 4.61 and 4.76.
385 Counter-Memorial,para.4.54andVerbalNoteoftheRespondent’sLiaisonOfficeinSkopje,
No F. 010.GS/23/AS 720, dated 1 June 2009 and Verbal Note No 93-1741/4 of the Applicant’s
Ministry of Foreign Affairs of the Applicant dated 10 July 2009 in reply: Counter-Memorial,
Annex 73.
386 Counter-Memorial, para.4.56.
- 167 - 387
the Interim Accord”. To the contrary: the fact that the Applicant
arrangedforjuveniledelinquencyofficerstovisittheprimaryschool
to prevent the recurrence of any such incidents, that it enhanced
security at the Respondent’s Ambassador’s house (by increasing
police patrols in the neighbourhood), and that it offered to undertake
a full scenes of crime investigation into the incident testifies to the
utmost seriousness with which the Applicant deals with complaints
by the Respondent, however minor.
5.85. More particularly, and contrary to the Respondent’s assertions, the
Applicant is not in breach ofArticles 5, 6, 7 or 11 of the InterimAccord. It has
389
notnegotiatedinbadfaith.Ithasnoe tngagedin“irredentist”or“antagonizing”
behaviourinbreachofArticles6or7.Iitsreferredtoininternational,multilateral
and regional organizations and institutions of which the Respondent was a
prior member no differently than in resolution 817 (albeit that it undertook no
390
commitment to be so referred ). Ithas negotiated – and continues to negotiate
– in good faith to resolve the difference over theApplicant’s name.
1. Alleged Breach of Article 5(1)
5.86. PursuanttoArticle5(1),bothPartiesagreedtocontinuenegotiationsunder
the auspices of the United Nations, “with a view to reaching agreement on the
difference”overtheApplicant’sname.TheRespondent’sclaimthattheApplicanthas
failedtonegotiateingoodfaith,inbreachofthatarticle,hasnomerit.Itistellingthat
theRespondenthasnotbeenabletorelyonasinglestatementbytheUnitedNations
Special Envoy to the name negotiations, Mr Nimetz, or by any other independent
authority, in support of its contentions.To the contrary, Mr Nimetz has repeatedly
387 Ibid., note 386, supra.
388
Verbal Note No 93-1741/4 of the Ministry of Foreign Affairs of the Applicant dated 10 July
2009 in reply: Counter-Memorial, Annex 73.
389 Counter-Memorial, para 8.31(i).
390 See further, Chapter IV, Section II, supr.a
- 168 - 391 392
described the “serious” and “constructive” stance taken by both Parties in the
namenegotiations,underscoringthat“bothsideshaveaverystrongdesiretoresolve
393 394
this issue” and that “both governments are showing good faith”. Indeed, in
March2008,justamonthpriortotheBucharestSummit,MrNimetzcommendedthe
395
Applicantforits“seriousefforts”inseekingtoresolvethedifferenceoverthename.
5.87. The Respondent’s portrayal of the name negotiations is partial and
inaccurate. It fails to mention the proposals by Mr Nimetz accepted by the
Applicant as a basis for a solution, 396including the proposal of March 2008
of “Republic of Macedonia (Skopje)”, which was rejected outright by the
Respondent. It fails to mention the fact that the acceptance of those proposals
represented a departure by the Applicant from its preferred position and a 398
391 “Nimetz to intensify name talks”, Kathimerin(i24 August 2008): Reply, Annex 183.
392 “Mathew Nimitz: The Ohrid meeting one of the best thus far, yet no proposal for a new
name”,MacedonianInformationAgency(21 January 2008), accessed 25 May 2010: Reply, Annex
170; see more recently: Sinisa-Jakov Marusic: “Creativity Urged From Greece, Macedonia”,
BalkanInsight.com(25 September 2009): Reply, Annex 192.
393 EmbassyoftheRespondentinWashington,DC U,NmediatorNimetz’scompletestatement
following Monday’s meeting(27 March 2008): Reply, Annex 175.
394 Embassy of the Respondent, Washington, DCU , N Envoy Matthew Nimetz holds talks with
Greek, FYROM representatives (13 June 2008): Reply, Annex 184.
395 “UN mediator Nimetz has not brought new name proposal, leaves Skopje to Athens”
MacedonianInformationAgency(5March2008):Reply,Annex172.Seealsothepressstatement
by the Respondent’s Ambassador Mr Vassilakis in November 2007 in which he acknowledged,
following talks with the Applicant’s Ambassador to the name negotiations, Mr Nikola Dimitrov,
that “both want to find a solution”: Embassy of the Respondent, WashingtonGre,ece,FYROM
talks resume; UN’s Nimetz to visit Athens and Skopje (2 November 2007): Reply, Annex 168.
396
See, for example, “Another FYROM name proposal is shunnedK ”,athimerini(10 October
2005): Reply, Annex 162. See also: Stavros Tzimas: “Seeking a balance on the FYROM name
issue”,Kathimerini(25 January 2007): Reply, Annex 165.
397 “PM raps ‘falsity’ of name proposal”K, athimerini(28 March 2008): Reply, Annex 177;
“Greece irked by Nimetz’s new proposal”Kathimerini (27 March 2008): Reply, Annex 176;
“Greece dissatisfied with UN proposal on Macedonia nameS ”,audi Press Agency (26March
2008):Reply,Annex173;“Athensholdsitsgroundinnamedispute”Kathimer (i3n1i March 2008):
Reply, Annex 118; Embassy of the Respondent in Washington, DC P,M Karamanlis briefed on
new Nimetz proposal on FYROM name (27 March 2008): Reply, Annex 174.
398
See,e.g.,Letterdated11October2005fromtheApplicant’sAmbassador,NikolaDimitrov,
toAmbassadorMatthewNimetz(11October2005):Reply,Annex67;and“Athenshasfewoptions
left on name”, Kathimerini(29 March 2008): Reply, Annex 178.
- 169 -“compromise” , as confirmed by Mr Nimetz. 400As such the allegation by
the Respondent that “FYROM’s position on the name issue has undergone no
modification whatsoever” 401 is patently wrong. The Respondent also fails to
highlightitsownintransigenceinthenamenegotiations,involvinga“nationalred
line” position that it seeks to impose on theApplicant as the only solution to the
402
difference over the name. It fails to mention its rejection of several proposals
put forward by Mr Nimetz, and its criticism of the negotiator for presenting
403
compromise positions that do not match its own “red line” position. As the
textofArticle5makesclear,theprovisionisbindingon bothParties,notjuston
theApplicant.As such, the Respondent is also under an obligation to negotiate
in good faith, and not to insist “upon its own position without contemplating
any modification of it”. 404
399
See Embassy of the Respondent in Washington, DC,UN mediator Nimetz’s complete
statement following Monday’s meeting (27 March 2008): Reply, Annex 175.
400 “GreeceirkedbyNimetz’snewproposalK ”athimerini(27 March 2008): Reply, Annex 176;
“No progress in row over name of former Yugoslav Republic of Macedonia – UN envoU y”,
News Centre (25 March 2008): Reply, Annex 112.
401 Counter-Memorial, para. 4.9.
402 See Reply, Appendix III setting out articles in which the Respondent articulates its “red
line” in the name negotiations.
403 See, e.g., “PASOK spokesman on FYROM name issueA ”thens News Agency(22 April
2008); “Greece’s thin red line, athimerini(13 September 2008): Reply, Annex 181; “Another
FYROMnameproposalisshunned”K , athimerini(10 October 2005): Reply, Annex 162; “Greece
irked by Nimetz’s new proposal”Kathimerini(27 March 2008): Reply, Annex 176; and, “Last
toss of FYROM dice”, Kathimerin( i13 October 2005): Reply, Annex 163.
404 NorthSeaContinentalShel,fascitedatpara3.18oftheCounter-Memorial. TheRespondent
misrepresents its negotiating position in claiming to have undertaken a substantive change of
directionin2007-2008,whichitclaimsdemonstratesitsgoodfaithbyexpressingawillingnessto
acceptacompositenamethatwouldinclude‘Macedonia’(Counter-Memorial,paras.4.10-11and
Annex 54). In reality, this was not a “major change of the Greek position” (Counter-Memorial,
para. 4.1), since (i) the provisional reference accepted by the Respondent in 1993 already included
the term ‘Macedonia’, and (ii) the Respondent had in fact expressed a willingness to accept a
composite name including the term ‘Macedonia’ in the negotiations that followed the signing of
the Interim Accord as early as 1996 (Stephen Weeks: “Greece ready to compromise in Balkan
name dispute”,Reuters News(10 April 1996): Reply, Annex 161: “Greece, which in the past
has rejected any name with the word Macedonia, is now willing to compromise on a combined
name such as New Macedonia or Nova Makedonija, diplomats said”.). See also International
Crisis Group, “Macedonia’s name: why the dispute matters and how to resolve iIt”,ternational
Crisis Group Balkans Report No. 122 (10 December 2001) at p. 18: Reply, Annex 64: “Athens
has dropped its demand that Skopje not use the name ‘Macedonia’ in any form, in favour of a
- 170 -5.88. TheApplicant rejects in particular any assertion by the Respondent that
itsownuseofitsconstitutionalnameininternationalorganizationsorinofficial
correspondence, and/or its recognition by third States under its constitutional
name, demonstrated or were capable of demonstrating “intransigence” in the
name negotiations, in breach of Article 5(1). As set out in Chapters II and
IV of this Reply, the Applicant gave no undertaking under resolution 817, the
Interim Accord or otherwise to call itself by the provisional reference. The
406
fact of this matter is supported unequivocally by Mr Nimetz and Sir Jeremy
Greenstock. 407That the Respondent should seek to make such an assertion in
relationtoArticle5ispuzzling,giventhetermsofArticle5(2)whichreservesthe
rights of the Parties, consistent with “the specific obligations undertaken in this
InterimAccord” in relation to their “respective positions as to the name” of the
Applicant. There can be no doubt that theApplicant’s ‘position as to the name’
wasthatitwouldcallitselfbyitsconstitutionalname.ThefinalwordsofArticle
5(2), referring to “third parties” 409belies any suggestion by the Respondent
that this reservation of rights applied only to the Parties’ bilateral dealings. 410
2. Alleged Breach of Article 6(2)
5.89. The Respondent’s allegations against theApplicant of breach ofArticle
6(2)arealsoentirelyunfounded.PursuanttoArticle6(2),theApplicant“solemnly
declare[d] that nothing in its Constitution, and in particular in Article 49 as
amended, can or should be interpreted as constituting or will ever constitute the
basisforthePartyoftheSecondParttointerfereintheinternalaffairsofanother
State in order to protect the status and rights of any persons in other States who
compound name like ‘Upper Macedonia’....). The evidence before the Court does not establish a
“major change” in the Respondent’s policy in 2007-2008.
405 Counter-Memorial, para. 4.12.
406
See Chapter IV, para. 4.56.
407 See Chapter IV, para. 4.43.
408 Memorial, para. 2.35.
409 Interim Accord, Article 5(2), as set out in the Memorial, para. 2.35.
410
As claimed by the Respondent in its Counter-Memorial, para. 3.36.
- 171 -are not citizens” of theApplicant. The concern by theApplicant for the human
rightsofminoritygroups–asreferredtoinamendedArticle49ofitsConstitution,
and in relation to which it has undertaken firm commitments pursuant to
Article 6(2) – cannot reasonably be treated as constituting an interference in the
411
Respondent’sinternalaffairs. TheApplicantisnomoreguiltyof“interfere[ing]
inthesovereignrightsorinternalaffairs”oftheRespondentthantheCommissioner
forHumanRightsoftheCouncilofEurope,theUnitedNationsIndependentExpert
onMinorityIssuesortheEuropeanCommissionagainstRacismandIntolerance,
whohaveallvoicedconcernregardingthesituationofminoritygroups,including
thoseidentifyingthemselvesas‘Macedonian’intheterritoryoftheRespondent. 412
5.90. TheRespondent’sfurtherallegationthattheApplicant’schampioningof
the human rights of the Applicant’sown citizens – whether through financing
domesticnongovernmentalorganizations(includingthoserepresentingtherights
of refugees) , or through supporting citizens in their claims to the European
CourtofHumanRights –constitutes“meddlinginGreece’sinternalpolitics” 415
is also patently absurd.
411
See further Article 9(1) of the Interim Accord, whereunder the Parties undertook to “be
guided by the spirit and principles of democracy, fundamental freedoms, respect for human
rights and dignity, and the rule of law, in accordance with the Charter of the United Nations, the
Universal Declaration of Human Rights, the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the International Convention on the Elimination of all
Forms of Racial Discrimination, the Convention on the Rights of the Child, the Helsinki Final
Act, the document of the Copenhagen Meeting of the Conference on the Human Dimension
of the Conference on Security and Cooperation in Europe and the Charter of Paris for a New
Europe“: Interim Accord between the Applicant and the Respondent (New York, 13 September
1995): Memorial, Annex 1. See alsoN , ote Verbale dated 19 March 2009 from the Applicant’s
Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje: Memorial, Annex 57.
412
All of the aforementioned bodies have had cause to voice serious concern regarding the
status and circumstances of the minority group identifying itself as ‘Macedonian’ within the
Respondent’s territory. See, for example, reports and cases listed at footnote 24 of the Memorial.
Seealso,CouncilofEurope:EuropeanCommissionagainstRacismandIntoleran Ece,RI Report
on Greece (Fourth Monitoring Cycl)e, Adopted 2 April 2009, 15 September 2009, CRI(2009)31,
available at: http://www.unhcr.org/refworld/docid/4ab0ed6e0.html, accessed 27 May 2010.
413
Counter-Memorial,para.4.16.TheorganizationsmentionedaredomestictotheApplicant,
not organizations in the Respondent’s territory.
414
Counter-Memorial, para. 4.23.
415
Counter-Memorial, para. 4.15.
- 172 - 3. Alleged Breach of Article 7(1)
5.91. Article 7(1) provides that the Parties must “promptly take effective
measurestoprohibithostileactivitiesorpropagandabyState-controlledagencies
and to discourage acts by private entities likely to incite violence, hatred or
hostility against each other”. The Respondent alleges that the Applicant has
breachedArticle7(1)by“failingtoprotect”theRespondent’sdiplomaticoffices,
and the houses and vehicles, belonging to its consular staff and personnel, and
byeitherpositivelyengaginginorrefusingtocondemn“propaganda”activities.
Again, these allegations are simply unfounded.
5.92. TheRespondent’scomplaintsaboutthepurportedfailurebytheApplicant
to protect its diplomatic staff and property are incapable of evidencing a failure
to “discourage acts by private entities likely to incite violence, hatred or
hostility against each other”, in breach of Article 7(1). The Applicant denies
that it has failed to provide adequate protection to the Respondent’s diplomatic
416
staff and premises. Further, it has investigated the incidents referred to it
by the Respondent; where perpetrators have been identified, they have been
sanctioned accordingly; where it has transpired that the incidents alleged by
theRespondentdidnotinfacttakeplace,thishasbeenbroughttotheattentionof
418
the Respondent. As stated above, the subject matter of these complaints, such
416 Measures taken include the stationing of a permanent guard outside the premises of the
Respondent’sLiaisonOfficeinSkopje,andtheenhancingofsecuritymeasureswhenrequired.See,
e.g.,theApplicant’sMinistryoftheInterior:OfficialNotedated21February2008fromApplicant’s
Interior Ministry to the Applicant’s Head of Unit for External Security of Objects, (21 February
2008): Reply, Annex 71.See also,Note verbale dated 27 February 2008 from the Applicant’s
Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje: Reply, Annex 26.
417
See,e.g.,Noteverbaledated14April2008fromtheApplicant’sMinistryofForeignAffairs
totheRespondent’sLiaisonOfficeinSkopje:Reply,Annex2N 7;oteverbaledated15April2008
from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje:
Reply, Annex 28;Note verbaledated 21 April 2008 from the Applicant’s Ministry of Foreign
Affairs to the Respondent’s Liaison Office in Skopje: Reply, Annex 9;ote verbale dated 21
May 2008 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office
in Skopje: Reply, Annex 32 Note verbale dated 6 March 2009 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje: Reply, Annex 35. See also: Charge
sheet issued by the Applicant’s Interior Ministry, (21 February 2008): Reply, Annex 72.
418
See:VerbalnoteoftheHellenicRepublicLiaisonOfficeinSkopje,NoF.010.GS/24/AS758,
dated 2 June 2009 and Verbal Note No 93-1740/4 of the Applicant’s Ministry of Foreign Affairs
- 173 -as the scratching of small letters into the paintwork of cars, or the throwing
420
of pebbles by schoolchildren, although regrettable, is simply not capable of
constituting a breach ofArticle 7(1), much less one justifying the Respondent’s
objection to the Applicant’s NATO membership. Indeed, it is noteworthy in
this regard that, prior to 3 April 2008, the Respondent had never sought to
characterize the subject matter of these complaints as breaches of Article 7(1).
In circumstances where the Applicant’s diplomatic premises in Athens have
been the object of repeated threats and attacks, and where, despite repeated
requestsbytheApplicant,nocontinuouspermanentsecurityprotectionhasbeen
provided by the Respondent to protect the premises, it is extraordinary that
the Respondent should now seek to persuade the Court that this type of activity
constitutes a unilateral breach ofArticle 7(1) by theApplicant.
5.93. The Respondent’s assertions that the Applicant has encouraged or
“refus[ed] to intervene” in relation to “acts by private parties likely to incite
violence, hatred or hostility” are also simply wrong.As an example, contrary
to the Respondent’s claim that theApplicant refused to intervene in relation to
billboards insulting to the Respondent erected in Skopje by private individuals,
dated 10 July 2009 in reply: Counter-Memorial, Annex 74; see furthN erote verbale dated10
July2009fromtheApplicant’sMinistryofForeignAffairstotheRespondent’sLiaisonOfficein
Skopje:Reply,Annex36.TheRespondent’srepeatedcomplaintsofthepermanentguardstationed
at the Liaison Office being absent from his post have proven unfounded: see, e.g.Officialrequest
dated 22 February 2008 from the Applicant’s Interior Ministry to the Applicant’s Central Police
Service (22 February 2008): Reply, Annex 73.
419 See Verbal note of the Respondent’s Liaison Office in Skopje, No F. 640/5/AS 579, dated
10 April 2008: Counter-Memorial, Annex 53; and the Applicant’s replN y:ote verbale dated 15
April 2008 from the Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office
in Skopje: Reply, Annex 28.
420 Verbal note of the Respondent’s Liaison Office in Skopje, No F. 010.GS/23/AS 720, dated 1
June 2009, andNote verbale No 93-1741/4 of the Applicant’s Ministry of Foreign Affairs dated
10 July 2009 in reply: Counter-Memorial, Annex 73.
421
See, e.g., the followingnotes verbales from the Applicant’s Liaison Office in Athens to
the Respondent’s Ministry of Foreign Affairs, dated 25 December 2003 (Reply, Annex 23), 6
November 2007 (Reply, Annex 25), and 10 February 2009 (Reply, Annex 34).
422
Counter-Memorial, para. 8.48.
- 174 -theApplicantensuredthattheywereallremovedimmediately.Otherallegations23
under this heading are equally baseless. 424
5.94. The Respondent alleges that the Applicant is “promot[ing] irredentist
425
propaganda”, including by reference to concerns about certain textbooks and
maps. The allegations are entirely unfounded. The Respondent’s complaints
relate to differences concerning the history of the region. However, whatever
disagreementthePartiesmayhavewithcertainmapsandtexts,thesecannotpossibly
provideanybasisforabreachofArticle7(1). TheApplicanthassuggestedthat
thePartiesestablishajointcommitteeoneducationandhistorytoseektodevise
423 “MacedoniaExplains‘Offensive’GreekFlag” B,alkanInsight.com(31 March 2008): Reply,
Annex203.HarrydeQuetteville:“MacedoniarowovershadowsNATOsummiT th,e Telegraph
(2 April 2008): Reply, Annex 130.
424
For example, the constitutional name of the Applicant is the ‘Republic of Macedonia’ and
not‘Macedonia’aserroneouslysuggestedbytheRespondent(seeCounter-Memorial,para.2.19).
Contrary to the Respondent’s unsubstantiated assertions, made repeatedly by the Respondent
in numerous internationalfora, including the United Nations and NATO (see, e..,gMemorial,
Annexes 26 and 131, and Counter-Memorial, Annex 146), the Applicant has nevec rlaimed
exclusivityovertheuseofthename‘Macedonia’andithasneverraisedanyissuewiththenameof
theRespondent’snorthernprovinceof‘Macedonia’(see,e.g.,EdwardP.Joseph:“AvertingtheNext
Balkan War: How to Solve the Greek Dispute Over Macedonia’s NameS”p ,iegel Online(2 June
2008):ReplyMemorial,Annex204;seealsotheApplicantA ’si,deMémoire(March 2005): Reply,
Annex24. TheRespondent’srepeatedassertionsthattheApplicanthasinsomeunspecifiedway
“appropriated”thename‘Macedonia’(e.g.,Counter-Memorial,para.2.1)areequallyunfounded.
ThelocalpopulationoftheterritoryoftheApplicantengagedinanorganizedliberationmovement
for an autonomous ‘Macedonia’ against the Ottoman rule (see Andrew Rossos, “Macedonia and
the Macedonians: A History,” Hoover Institutions Press, Stanford University, Stanford, 2008,
Chapter 7), and fought a ‘People’s Liberation War of Macedonia’ against the occupying Axis
powers during the Second World War, leading to self-determination in 1945 for the Applicant’s
inhabitants with the establishment of the ‘People’s Republic of Macedonia’. Thereafter the name
of the Republic has always included the term ‘Macedonia’. The Respondent signed treaties with
the ‘People’s Republic of Macedonia’, without objection to the name of that Republic; see also
further paragraph 2.3 of the Memorial and corresponding footnotes and Annexes.
425 Counter-Memorial, para. 4.28.
426
The Respondent’s contention that the use of “maps of Greek Macedonia using outdated
Slav or Turkish names for Greek locations” is demonstrative of “irredentism” or of “a nationalist
ideology which the UN Charter, the Helsinki Final Act, and the modern system of international
lawingeneralshouldhaveputtorest”(Counter-Memorial,para.2.20)isparticularlyunfounded.
This is all the more so when the Respondent itself uses outdated Greek names for locations in
the territory of the Applicant in its school text books and governmental cartography (see, e.g.,
the Respondent’s Parliament,Historical Map of Greece, Issue IV (2003): Reply, Annex 83). The
Applicant does not consider the use of such terms by the Respondent to provide any evidence of
irredentism on its part.
- 175 -andteach“ajointandmulti-perspectivehistoryoftheBalkanregion”inorderto
fosterreconciliationandtoavoidthepotentialfor“historicaleventstofeedfuture
427 428
misunderstandings”, butthatsuggestionhasbeenrejectedbytheRespondent.
4. Alleged Breach of Article 7(2)
5.95. Article 7(2) concerns the use by the Applicant of the “symbol in all its
forms” previously “displayed on its national flag”. The Applicant denies that
it is in breach of this article. In response to the Respondent’s assertion that it
“continues to use” the symbol of the sixteen pointed sun, inter alia as “the
emblemoftheTechnicalRegimentoftheArmy”, theApplicantpointsoutthat
the regiment was disbanded in 2004, and the symbol of which the Respondent
complains is no longer in use. Further, as the text of Article 7(2) makes clear,
the commitment provided in theArticle is binding only on theApplicant, not on
theApplicant’scitizens.Assuch,theuseofthesymbolbyprivateindividualsor
entities, such as the Special Hospital for surgical diseases (a private hospital),
430
is not capable of amounting to a breach of the Accord. The Applicant, like
any State, is not in a position to exercise absolute control and pre-empt every
actiontakenbyeverypublicbodyintheState.However,wherecomplaintshave
427 This initiative is referred to in a letter dated 13 March 2009 from the Applicant’s Minister
for Foreign Affairs, Antonio Milošoski, to the Respondent’s Minister for Foreign Affairs,
Dora Bakoyannis: Memorial, Annex 55 and inN aote verbale dated 15 February 2010 from the
Applicant’s Ministry of Foreign Affairs to the Respondent’s Liaison Office in Skopje: Reply,
Annex 52. It is further mentioned in the Letter dated 20 October 2009 from the Applicant’s
Permanent Representative to the United Nations, Slobodan Tašovski, to the President of the
General Assembly, UN doc. A/64/500 (30 October 2009): Reply, Annex 22.
428 Letter from the Respondent’s Minister of Foreign Affairs to the Applicant’s Minister of
Foreign Affairs, dated 24 March 2009 under Reference 1024, forwarded through Verbal Note
F.141.1/24/AS 378, dated 27 March 2009 of the Liaison Office of the Hellenic Republic in Skopje:
Counter-Memorial,Annex70andverbalnotedated15April2009fromtheRespondent’sLiaison
OfficeinSkopjetotheApplicant’sMinistryofForeignAffairs,No.F.141.1/48/AS488:Memorial,
Annex 59.
429 Counter-Memorial, paras. 4.58, 4.76 and 8.54.
430 Assuch,theRespondent’scomplaintregardingtheWorldIntellectualPropertyOrganization
(Counter-Memorial, paras. 4.57-58) is misplaced. If the symbol were to be registered as a State
emblem exclusive to the Respondent, that would impact on the use of the symbol by private
individuals and entities in the Applicant State, which is not prohibited pursuant to the terms of
the Interim Accord.
- 176 -been raised directly with theApplicant by the Respondent, as in the case of the
431
main square in theApplicant’s municipality of Gazi Baba, or the website of a
government agency, the Applicant has acted accordingly: as the Respondent
is aware, the symbol is no longer displayed in the aforementioned square or 433
on the above website .As such, it is somewhat surprising that the Respondent
should seek to attempt to rely on these matters in its Counter-Memorial.
5. Alleged Breach of Article 7(3)
5.96. Article 7(3) concerns the use by one Party of “symbols constituting part
435
ofthehistoricorculturalpatrimony” oftheotherParty.Itdoesnotconcernthe
436
use of names or any other “elements of the historical and cultural patrimony”
of either Party.This is made abundantly clear by a review of the different drafts
of the InterimAccord, as introduced by the Respondent: whereas earlier drafts
covered the use of “symbols, names, flags, monuments or emblems”, this was
not agreed by the Parties and does not form part of the final text of the Interim
Accord.AlloftheallegationsofbreachofArticle7(3)madebytheRespondentin
itsCounter-Memorial concernnamesandstatuesratherthansymbols.Assuch,
they are not capable of falling under the remit of that article. The Respondent’s
allegations are therefore entirely unfounded.
5.97. Further, while early drafts of the Interim Accord impose anobligation
438
on both Parties to refrain from the use of such symbols, the final text of the
431 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: Memorial, Annex 60.
432 Ibid.
433 Note verbale dated 26 August 2009 from the Applicant’s Liaison Office in Athens to the
Respondent’s Ministry of Foreign Affairs: Reply, Annex 38.
434 Ibid.
435 Emphasis added.
436 Counter-Memorial, para. 4.61.
437 Counter-Memorial paras. 4.61 to 4.64, and 8.59.
438 Draft (e) (15 March 1995), at Article 7(2): Excerpt from Draft E of the Interim Accord from
the archives of the Respondent’s Ministry of Foreign Affairs, as printed in Annex 148 of the
- 177 -Interim Accord merely establishes a mechanism for the Parties to deal with
complaints concerning such usage. Where the Respondent has brought these
matters to the attention of the Applicant, the Applicant has responded in detail
and taken action where appropriate.
6. Alleged Breach of Article 11(1)
5.98. Article 11(1) is one of the few articles of the Interim Accord which is
directed to just one of the Parties.As such,Article 11(1) imposes an obligation
solely upon the Respondent: despite the Respondent’s efforts to establish the
contrary, the Applicant cannot be in breach of Article 11(1), given that the
Article imposes no obligation upon it.As set out in detail at Chapter IV of this
Reply, rather than imposing any obligation on theApplicant, the second clause
ofArticle 11(1) sets out a single condition in which the Respondent may object
to theApplicant joining organizations and institutions. If theApplicant is not to
be referred to within an organization or institution differently than in resolution
817, the Respondent is entitled to object to its membership, but theApplicant is
not forasmuch in breach of the Interim Accord. The examples provided by the
Respondent of purported breaches by theApplicant ofArticle 11(1) (as set out
in paragraph 8.60 of its Counter-Memorial and corresponding footnotes) are
incapable of amounting to breaches of the Interim Accord. As set out in detail
in Chapter IV of this Reply, the Applicant’s use of its constitutional name in
the United Nations and in other organizations and institutions of which it is a
member, does not constitute a breach of Article 11 (1), material or otherwise.
Themattersraisedcannotonanyunderstandinggiverisetoasituationjustifying
a quid pro quobreach of the Respondent of its obligation under Article 11(1),
based on an ill-founded rationale of “synallagmatic” obligations arising under
theArticle.
5.99. As demonstrated in the above paragraphs, the conditions relied upon by
the Respondent as “triggering” its purported recourse to the exceptioare simply
incapable of reasonably constituting a breach of the InterimAccord, much less
Respondent’s Counter-Memorial (15 March 1994): Reply, Annex 62.
- 178 -onewarrantingtheRespondent’sobjectiontotheApplicant’sNATOmembership
in circumstances where the Applicant was to be referred to no differently than
in resolution 817. The Respondent’sexceptiotheory is as unfounded in fact as
it is in law.
G. T h er e sP Od eN h As fAi l e dTfOOl lO WPrO Ce d url r e q u ieeN Ts
5.100. Only after the current dispute between the Parties crystallized in late
March / early April 2008 at the Bucharest Summit did the Respondent seek
to make to the Applicant formal, written allegations of breach of the Interim
Accord, in response to the Applicant’s formal claim that the Respondent was
itself in material breach of the Interim Accord. The Respondent’s new and
late allegations are reflected in a steady stream of diplomaticnotes verbales,
post-dating the Bucharest Summit, and often relating to matters that arose long
beforeApril 2008.Theseex post factodémarches do not assist the Respondent:
if the Respondent really believed that any or all of the allegations it has sought
to raise since May 2008 were breaches of the InterimAccord, as it now asserts,
it could have followed the clear and established procedure set out inArticle 65
439
of the 1969 Vienna Convention; it did not do so. It also could have brought
proceedings to the Court, pursuant to Article 21 of the Interim Accord; it did
not do so either.
5.101. The Respondent’s purported reliance on statements made by its
representatives to the press and in Parliament to substantiate its claim thattid
notify theApplicant is interesting, given its contradictory assertion that such
statements are “unilateral acts” which do not express an “intention to be bound
441
on the international plane”. However, such statements manifestly fail to meet
the standard set by Article 65 of the Vienna Convention, and do not amount to
the formal notification required by international law such that they could serve
to justify the Respondent’s breach. There is no existingexceptioregime under
439
See further Memorial, para. 5.27 et seq.
440 Counter-Memorial, para. 8.27.
441 Counter-Memorial, para. 5.54.
- 179 -internationallawthattrumpstherequirementofpriornotificationunderArticles
60and65oftheViennaConvention.Itfollowsthatthelackofformalnotification
and the failure to follow established process is fatal to the Respondent’s case.
Section IV. Conclusions
5.102. Contrary to the Respondent’s assertions, the Respondent’s breach of
Article 11(1) cannot be excused based onArticle 22 of the InterimAccord or a
principle of exceptio non adimpleti contractus.
5.103. The Respondent’s obligation inArticle 11(1) is not subordinated to any
pre-existing right or duty of the Respondent preserved by Article 22. This is
because Article 22 is exclusively concerned with the rights and duties of third
parties, not of the Parties to the InterimAccord. This is clear from the text and
context ofArticle 22, and from the practice of the Parties after the conclusion of
theInterimAccord.Further,weretheRespondent’sinterpretationtobecorrect,it
wouldevisceratetheobjectandpurposeofArticle11(1),renderingitessentially
meaningless.EvenifArticle22wereregardedasconcerningtherightsandduties
of the Parties, and even if itwere capable of evisceratingArticle 11(1) in some
circumstances where the Respondent had a right or duty at an organization in
relation to the admission of new members, the Respondent has not identified
any “right” or “duty” under the North Atlantic Treaty that would require the
Respondent to object to theApplicant’s membership. Insofar as the Respondent
has adiscretion pursuant to the NorthAtlanticTreaty to object to the admission
of new members to NATO, it accepted – pursuant to its commitment under
Article11(1)–thatitwouldnotusethatdiscretioninobjectingtotheApplicant’s
membership on the sole basis of the non-resolution of the difference over the
Applicant’sname.However,thisispreciselywhattheRespondentdidinobjecting
to theApplicant being invited to accede to NATO membership at the Bucharest
Summit. Were the Court to accept the Respondent’s interpretation of Article
22 in the current case, it would effectively give the Respondentcarte blanche
to object to the Applicant’s membership in all organizations and institutions in
- 180 -whichtheRespondentisinapositiontosoobject,anddenytotheApplicantone
of the key protections that the InterimAccord was intended to provide.
5.104. There is also no general defence ofexceptio non inadimpleti contractus
in international law that would justify the Respondent’s breach ofArticle 11(1)
of the Interim Accord, even if (which is denied) the Applicant had failed to
comply with any of its obligations under theAccord.Theexceptio is not part of
the law of treaties, save in the form articulated inArticle 60 of the 1969 Vienna
Convention. The ILC rejected the broader version of theexceptio for which the
Respondent contends, deciding that it does not form part of the law of State
responsibility.ThenarrowversionoftheexceptiocannotassisttheRespondent,
butinanyeventthattoowasexcludedfromthelawofStateresponsibilitybythe
ILC.The Respondent has not sought to justify its actions by reference toArticle
60ofthe1969ViennaConventionortothelawoncountermeasures,asreflected
in the ILCArticles on State Responsibility, and cannot do so. If the Court gives
any credence to the Respondent’s argument it will undermine the stability and
certaintyoftreatyrelationsbetweenStates.Moreover,incircumstancesinwhich
theInterimAccordprovidedforclearenforcementmechanisms,theRespondent’s
argument should be firmly and categorically rejected. This is all the more so
where the factual basis advanced by the Respondent for its purported recourse
to the exceptio is entirely unfounded.
5.105. Finally, theApplicant notes that the Respondent has referred in passing
to “other possible defences”, including counter-measures and the clean hands
doctrine (to the effect that the Applicant has nolocus standi to bring its claim,
an argument that, in the absence of any supporting judgment or award by
internationaljudicialorarbitralauthorityisplainlyunarguable). Theseclaims
are not elaborated in any way by the Respondent, which has stated in terms that
there is no need for them to be expressly invoked since all the conditions for the
443
exceptio are met.Accordingly, theApplicant does not address them further.
442 Counter-Memorial, para. 8.29-8.30.
443
As noted above the issues of Article 60 (law of treaties) and countermeasures (law of
State responsibility) were fully addressed in the Memorial, paras 5.21-5.40 and 5.41-5.54 and
- 181 - CHAPTER VI
THE RELIEF SOUGHT WOULD REMEDYTHE SITUATION
CONSISTENTLYWITH THE COURT’S PRACTICE
Introduction
6.1. AssetoutintheApplicant’sMemorialandintheprecedingChapterstothis
Reply, the Respondent has violatedArticle 11(1) of the InterimAccord without
lawfuljustification.Thatbreachconstitutesaclearviolationofinternationallaw
for which the Respondent is internationally responsible and in respect of which
the Applicant is entitled to relief. As set out in the Memorial, the relief sought
from the Court is in two forms:
(i) a declaration that the Respondent has violated its obligations under
Article 11(1) of the InterimAccord; and
(ii) anorderthattheRespondenttakeallnecessarystepstocomplywith
its obligations under Article 11(1) of the Interim Accord, so as to
restore theApplicant to thestatus quo ante, and to refrain from any
further action that violates those obligations.
6.2. TheApplicanthasalsoreservedforitselftherighttomodifyand/orextend
the grounds invoked and/or the relief sought, in the event of other breaches of
Article 11(1) of the InterimAccord by the Respondent.
6.3. The Court is referred to Chapter VI of theApplicant’s Memorial which
formulates in detail the relief sought by the Applicant. None of the arguments
advancedbytheRespondentinitsCounter-MemorialhavecausedtheApplicant
to seek to modify or revisit its prior submissions in any way. The Applicant
responds to those arguments in the following paragraphs.
accompanying text. The argument as to the “clean hands doctrine” is closely related to the
argument on exceptioand adds nothing to the Respondent’s case.
- 182 - Section I: The First Request
6.4. The Applicant’s first request is for declaratory relief, namely that the
Court “adjudge and declare thatthe Respondent, through its State organs and
agents” has acted illegally; no more and no less.
6.5. Itiswellrecognizedthatdeclaratoryreliefis“[o]neofthemostcommon
modalitiesofsatisfactionprovidedinthecaseofmoralornon-materialinjuryto
thestate”, andthe“mostcommonformofremedyinlitigationbeforethePCIJ
and ICJ”. The Court has granted declaratory relief in many cases, including:
446 447
the Avena, LaGrand, Certain Questions of Mutual Assistance in Criminal
448 449 450
Matters ,ArrestWarrantof11April2000, FisheriesJurisdiction andRight
451
of Passage over Indian Territory cases.
6.6. The Respondent argues against the grant of declaratory relief, on the
grounds that the Court has no jurisdiction to decide on the merits of the case,
444 International Law Commission,Responsibility of States for Internationally Wrongful
Acts 2001 , Article 37 and corresponding commentary inYearbook of the International Law
Commission, 2001, vol. II (Part Two) at p. 105. See also: International Law Commission, Fifty-
secondSession,ThirdreportonStateResponsibilitybyMr.JamesCrawford,SpecialRapporteur,
Addendum, UN Doc A/CN.4/507/Add.1 (15 June 2000) at para. 184; and Ian BrownlS iey,stem of
the Law of Nations: State Responsibility Part I (1983) at p. 201.
445
Brown:Remedies in International Adjudication(Oxford: Oxford University Press, 2007)
at p. 209. See also: Christine Gray:Judicial Remedies in International Law(Oxford: Oxford
University Press, 1990) at p. 96.
446 Case concerning Avena and other Mexican Nationals (Mexico v United States), Merits,
Judgment I.C.J. Reports 2004 , paras. 47-8 and 50-3.
447 LaGrand (Germany v. United States of America), Merits, Judgment, I.C.J. Reports 20 , 01
paras. 77, 91, 99, 109, 115, 116, and 127-8.
448 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Merits,
Judgment I.C.J. Reports 2008 , paras. 152, 201-5.
449
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Merits,
Judgment, I.C.J. Reports 200,2p. 3, at para. 557.
450
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J.
Reports 1974, p. 175, at pp. 205-6.
451 RightofPassageoverIndianTerritory(Portugalv.India),Merits,Judgment,I.C.J.Reports
1960, p. 6, at pp. 45-6.
- 183 -that the Respondent has not breached its obligation under Article 11(1) of the
Interim Accord, and that even if the Respondent had breached that obligation,
it was “entitled” to do so, “given the numerous material breaches of theAccord
attributable to the FYROM” .As demonstrated in Chapters II, III, IVandVof
this Reply, each and every one of the Respondent’s challenges to the grant of
declaratoryreliefiswithoutmerit:theCourt hasjurisdictiontodecidethemerits
of the current case, the Respondent did breach its obligation under Article
11(1), 454and there wasno legal justification for that breach. In particular, at
no stage prior to its objection to the Applicant being invited to join NATO at
the Bucharest Summit, did the Respondent formally allege in writing to the
Applicant that it was in material breach of the InterimAccord, and in any event
theApplicant was not and is not in material breach of that agreement.
6.7. The Respondent asserts in the alternative that, even if the Courthas
jurisdiction,adeclarationbytheCourtassoughtbytheApplicant“couldhaveno
effectandwouldbeincompatiblewiththeCourt’sexclusivelyjudicialfunction” 456
for two reasons: (i) the relief would necessarily be directed at NATO, and (ii)
the Court would be constrained to addressing the Respondent’s breaches of
the Interim Accord without adjudging the purported violations of the Interim
Accord by the Applicant (which the Respondent belatedly and erroneously
alleges against theApplicant).
6.8. In response to the first argument put forward by the Respondent, the
Applicant underscores the point it has consistently made, namely that the
relief sought is directed at the Respondent and not any other party; it is not
directed at NATO, nor any other State or body. Moreover, contrary to the
Respondent’s assertion, the declaratory relief granted against the Respondent
could not imply any direct or indirect responsibility of any entity other than the
452 Counter-Memorial, para. 9.3.
453 See Chapter III supra.
454
See Chapters II and IV supra.
455 See Chapter V supra.
456 Counter-Memorial, para. 9.4.
- 184 -Respondent. The “internationally wrongful act entailing the responsibility of
the Hellenic Republic” is the Respondent’sown objection to the Applicant’s
NATOmembershiponoraroundtheoccasionoftheBucharestSummitinApril
2008, in circumstances where theApplicant was not to be referred to in NATO
“differently than in paragraph 2 of Security Council resolution 817 (1993)”. 458
TheRespondent’sobjectionindirectbreachofArticle11(1)isaninternationally
wrongful act of the Respondent, acting independently and autonomously, and
459
retaining “complete sovereignty and responsibility for its own decisions”
and actions. It is an act that is distinct juridically from the Bucharest Summit
decision, or any acts taken by NATO. The Respondent’s efforts to conflate the
two are unjustifiable.
6.9. ThesecondreasonadvancedbytheRespondentisthat“itwouldbeunjust
for the Court to make the declaration requested by” the Applicant “without,
at the same time, taking account” of the Applicant’s own conduct. This is 460
wholly without merit. Prior to the Respondent’s objection to the Applicant’s
admissiontoNATO,theRespondentcouldhaveformallyassertedinwritingtothe
Applicant – in accordance with established procedures – that theApplicant was
inmaterialbreachoftheInterimAccord;itdidnotdoso.TheRespondentcould
havebroughtproceedingsbeforetheCourtinrespectofthoseassertions;itdidnot
doso.AtnopointpriortoApril2008didtheRespondentmakeanysuchformal,
written allegation to theApplicant, as its Counter-Memorial now confirms, and
it brought no proceedings before this Court, or engaged in any other means of
settlement available to it. It did not invoke any rights or procedures available
under the 1969 Vienna Convention (including Articles 60 and 65) or invoke
the right to bring lawful counter-measures under the law of state responsibility.
Rather, the Respondent has chosen to set out in its Counter-Memorial a “brief
summary” – running to 35 pages – in which it now belatedly and erroneously
457 Ibid.
458
Article 11(1) of the Interim Accord.
459 NATOHandbook,PublicDiplomacyDivision,2006,pp.33-41,183-190:Counter-Memorial,
Annex 22, page 35. See further Chapter II, Section III sup.ra
460 Counter-Memorial, para. 9.6.
- 185 -alleges breaches by theApplicant of its obligations under the InterimAccord. 461
As set out at Chapter V above, the matters raised do not constitute breaches
(whethermaterialorotherwise)oftheInterimAccord,andtheycannotjustifyany
of the actions of the Respondent. Moreover, on the Respondent’s own case, the
bulk of the purported breaches occurredafterApril 2008, or ended long before
April 2008.As such, they can have no bearing upon the Respondent’s objection
to the Applicant’s NATO membership at the Bucharest Summit. In view of its
own failure to act in a timely or proper manner, the Respondent is not entitled
to complain now that the remedy sought by theApplicant is “unjust”.
6.10. The circumstances of the case before the Court belie the Respondent’s
underlyingassertionthatadeclarationbytheCourtasrequestedbytheApplicant
wouldbe“hypothetical”and“couldhavenoeffect”,suchastobe“incompatible
with the Court’s judicial function”. To the contrary, the declaration sought
from the Court would serve two essential functions. First, it would provide an
authoritative interpretation of an obligation set forth in the InterimAccord, the
meaningofwhichisdisputedbytheParties;theinterpretationwouldbebinding
and, as such, would provide an authoritative point of departure for avoiding
future violations. Second, such a declaration would provide satisfaction to the
Applicant for the injury sustained by it as a result of the Respondent’s unlawful
objection.
6.11. As noted, the declaration sought by the Applicant would clarify that
the Respondent’s objection to the Applicant’s membership in an international
organization, in circumstances in which the Applicant is to be referred to no
differently than in resolution 817, constituted an internationally wrongful act,
in breach of Article 11(1). The Interim Accord remains in force in its entirety,
and constitutes the most comprehensive and far-reaching agreement between
the Parties, regulating their bilateral dealings. The declaratory relief sought
would have a clear “practical consequence”, “affect[ing] existing legal rights or
461 Counter-Memorial, Chapter 4.
462
Counter-Memorial, paras. 9.4 and 9.5.
- 186 - 463
obligationsoftheparties,thusremovinguncertaintyfromtheirlegalrelations”,
byprovidinganauthoritativeinterpretationofArticle11(1).Thisisofparticular
importance in circumstances in which the Applicant is seeking to join other
international organizations and institutions, including the European Union. 464
6.12. AsunderscoredinChapterVIoftheApplicant’sMemorial,thefirstrequest
has a dual function: it is retrospective, relating to the legality of past conduct of
theRespondentleadinguptoandattheBucharestSummit;anditisprospective,
recognizingthatadeclarationbytheCourtconcerningtheinterpretationofArticle
11(1) of the Interim Accord will have “forward reach[ing]” applicability and
effects (see theChorzow Factory (Interpretation)and theNorthern Cameroons
cases), whereArticle 11(1) is in play in the future.As such, in circumstances
wheretheApplicantisstillseekingmembershipin“international,multilateraland
regional organizations and institutions” of which the Respondent is a member,
the declaration sought by the Applicant will have an important and continuing
effect.
6.13. Second, the declaratory relief sought provides reparation for the moral
damage caused to theApplicant by the Respondent’s wrongful objection to the
Applicant’sNATOcandidacyattheBucharestSummit.Paragraph(7)oftheILC
Commentary to Article 31 of the ILC Articles on State Responsibility – which
establishes that damage for which relief may be granted by the Court can be
both “moral” and “material” – cites the agreement between the parties in the
Rainbow Warrior arbitration that:
463 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 295-296, para. 38, as cited by the Respondent at para. 9.5 of
its Counter-Memorial.
464 See: Letter dated 16 November 2009 from the President of the Applicant’s Assembly,
TrajkoVeljanoski,tothePresidentoftheRespondent’sParliament,PhilipposPetsalnikos:Reply,
Annex47;andLetterdated11November2009fromtheApplicant’sMinisterofForeignAffairs,
AntonioMilošoski,totheRespondent’sPrimeMinister,GeorgeA.Papandreou:Reply,Annex45.
465 Memorial, paras. 6.16 and 6.17.
466 Memorial, para. 6.9.
- 187 - “[u]nlawful action against non-material interests, such as acts affecting
thehonor,dignityorprestigeofaState,entitlethevictimStatetoreceive
adequate reparation, even if those acts have not resulted in a pecuniary
or material loss for the claimant State.” 467
6.14. The Arbitral Tribunal held that France’s breach of its international
obligations had:
“…provokedindignationandpublicoutrageinNewZealandandcaused...
non-material damage … of a moral, political and legal nature, resulting
from the affront to the dignity and prestige not only of New Zealand as
such, but of its highest judicial and executive authorities as well.”▯ 468
6.15. Inthepresentcase, theRespondent’sobjectiontotheApplicant’s NATO
membership at the Bucharest Summit, in contravention of its obligations under
Article 11(1), constituted an “unlawful action… affecting the dignity” of the
Applicant,incircumstanceswheretheApplicantwastobereferredtonodifferently
thaninresolution817,andhadagreedtobesoreferred.Giventheongoingdenial
bytheRespondentinitsCounter-Memorialofanyviolationbyitofinternational
law, coupled with the indication by the Respondent that it will continue to act in
a manner that violatesArticle 11(1) until the ongoing difference concerning the
Applicant’snameisresolvedtotheRespondent’ssatisfaction,apronouncement
bytheCourtonthewrongfulnessoftheconductoftheRespondentisavitalfirst
stepinrestoringtheApplicant’srightsundertheInterimAccordandsafeguarding
them for the future. The declaration sought would avoid further impunity.
6.16. Against this background, it is surprising that the Respondent should
assert that a declaration by the Court would be “hypothetical” and “could have
no effect”, such as to be “incompatible with the Court’s judicial function”. 470
467 Rainbow Warrior (New Zealand/France), UNRIAA, vol. XX, p,.a2t1p 7.(199,0)ara. 109.
468
Ibid., at para. 110.
469 See Appendices I and II.
470 Counter-Memorial, paras. 9.4 and 9.5.
- 188 -6.17. Forthesereasons,readinconjunctionwithparagraphs6.12to6.17ofthe
Applicant’s Memorial, theApplicant requests the Court to grant the declaratory
reliefsought.ItisentirelyconsistentwiththelongstandingpracticeoftheCourt
andwouldbeentirelyappropriateinthesecircumstances,reflectingaminimum
butnecessaryfirststepinbringingtheRespondentbackontoapathofcompliance
with the InterimAccord.
Section II: The Second Request
6.18. The Applicant’s second request is that the Court should “order that the
Respondent take all necessary steps to restore the Applicant to thestatus quo
anteandtorefrainfromanyactionthatviolatesitsobligationunderArticle11(1)
in the future.” The Respondent advances three objections to this request; first,
471
thattherequestedorder“doesnotcorrespondtothemeaning” ofArticle11(1);
472
second, that the Court “would act beyond its judicial function” in granting
it, because it is necessarily directed against NATO and/or does no more than
“statetheobvious,i.e.,thattheInterimAccord…mustbecompliedwith” and/ 473
or would have no effect as the statusof the Applicant pre- and post the NATO
Bucharest summit is the same; and third, that the grant of the order “would
amounttotheCourt’sendorsement,inadvance,ofthetypesofviolationswhich
the FYROM has been committing and would continue to commit in the future”
47. These three challenges to the grant of the requested order, dealt with in turn
below, lack any factual or legal basis.
6.19. First, it is surprising that the Respondent should claim that an order
requiring the Respondent to comply with its obligations under Article 11(1)
“doesnotcorrespondtothemeaningof”thesecondclauseofArticle11(1). In 475
471 Counter-Memorial, para. 9.10.
472
Counter-Memorial, para. 9.16.
473 Counter-Memorial, para. 9.16(b).
474 Counter-Memorial, para. 9.10.
475 Ibid.
- 189 -fact,suchanorderwouldsimplyservetorestateandre-emphasisetheobligation
undertaken by the Respondent under Article 11(1), and to set out the manner
476
through which the Respondent is to make reparation for its breach.
6.20. Second, in circumstances where the Respondent has failed to comply
with its clear obligation under Article 11(1), and where it has asserted that it
will continue not to comply in the future,it is remarkable that the Respondent
shoulddismissthesecondheadofreliefsoughtbytheApplicantasunnecessary
on the grounds that it does no more than “state the obvious, i.e. that the Interim
Accord… must be complied with”. In the present case, the Respondent has
demonstrated its continuing refusal to complysua sponte with its obligations
under Article 11(1). It has also adopted a similar position in relation to other
477
organizationsandinstitutions,mostnotablytheEuropeanUnion.Thisconfirms
why an order from the Court in the terms requested is absolutely necessary to
safeguard theApplicant’s rights under the InterimAccord.
6.21. Moreover, theApplicant reiterates that the order it seeks from the Court
isnotdirectedatNATOoranyotherorganizationorinstitution,whetherdirectly
or indirectly: as paragraph 6.19 of theApplicant’s Memorial made crystal clear,
“the effect of the Order should be to require thatthe Respondentcommunicate
to all members of NATO that it does not object to theApplicant’s membership
ofNATO”incircumstanceswheretheApplicantistobereferredtoinNATOno
differently than in paragraph 2 of resolution 817. The order is directed only at
the Respondent, which retains full responsibility for its objection in the NATO
context. The Respondent alone is “in a position to take some retroactive or
prospectiveactionoravoidanceofaction,whichwouldconstituteacompliance
with the Court’s judgment”. The order sought doesnot require NATO to take
476
ThemeaningofArticle11(1)issetoutaboveindetailinChapterIV,andnotrehearsedhere,
save to emphasise that the Respondent’s analysis of the meaning of Article 11(1) set out at para.
9.10 of its Counter-Memorial, on which its objection to the second request is based, is unsound.
477
See further note 489 below, and Appendix III to this Reply.
478 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 1963, p., as cited by the Respondent at para. 9.12 of its Counter-Memorial.
- 190 -or refrain from any action.As such, the order sought is in line with the Court’s
479
jurisprudence and the Court’s inherent judicial function.
6.22. Fortheavoidanceofdoubt,andrespondingtotheRespondent’sassertions,
the order sought is only to be applied “by the Respondent vis-à-vis its own
authorities”.480Contrary to the Respondent’s claim at paragraph 9.14 of its
CounterMemorial,theRespondentin sotrequiredtopossessortoexercise“some
sortofauthoritywithinNATOwhichwouldcompelthatOrganisationtochange
itsopinionabout[theApplicant’s]admission”.RathertheRespondentwouldbe
required to inform itsown authorities to act in a manner that is consistent with
the InterimAccord. Such action by the Respondent would restore theApplicant
to the status quo ante of a NATO aspirant State, the accession of which to
NATOwasnotblockedbyanunlawfulobjectionbytheRespondent,ongrounds
impermissibleunderArticle11(1)oftheInterimAccord,incircumstanceswhere
the consent or acquiescence of all NATO Member States is required in order for
consensus on NATO enlargement matters to be reached.
6.23. Third, as noted in detail in Chapter V of this Reply, and contrary to the
Respondent’s erroneous and unsupported assertions, the Applicant is not in
breach of Article 5 of the Interim Accord. Contrary to the Respondent’s claim,
the order sought by the Applicant would not amount to an “endorsement, in
advance” of any such breach by theApplicant.The relief sought seeks to ensure
that the Respondent adheres to its obligations underArticle 11(1), no more and
no less.
6.24. For the reasons set out above, read in conjunction with paragraphs 6.18
to 6.25 of its Memorial, theApplicant reiterates its request that the Court grant
the order sought under the second head of relief.
479 Memorial, paras. 6.23 to 6.25.
480
Counter-Memorial, para. 9.14.
- 191 - Section III: The Reservation of Rights
6.25. The Applicant’s Memorial included a short paragraph setting out its
reservationofrights. TheRespondenthasmadealengthychallengetothisshort
482
paragraph, variously describing the approach as “sibylline and inconsistent”,
483 484
“sweeping and essentially vacuous” and “serv[ing] no obvious purpose”.
The Respondent’s arguments demonstrate a misunderstanding of the function
of such clauses.
6.26. Reservationsofrightsformanordinaryandusualpartofsubmissionstothe
InternationalCourtofJustice,andtheirinclusioninmemorialsandapplications
to the Court is now routine. Contrary to the Respondent’s assertion, they do
not require the Court “to anticipate hypothetical situations and to decide on
486
them before they have arisen”. Rather, as stated in terms in the Application
and Memorial, they “reserve the right” “to modify and extend” the terms of
the Application, the grounds invoked and the relief sought “in the event that
further acts of the Respondent” require it. The inclusion of a reservation of
rightsclauseisparticularlypertinentinthepresentcase,incircumstanceswhere
the dispute before the Court, concerning “the application of Article 11(1) of
the Interim Accord of 13 September 1995”, arises not only in relation to the
481 Memorial, para. 6.26.
482 Counter-Memorial, para. 9.2.
483 Counter-Memorial, para. 9.19.
484
Counter-Memorial, para. 9.20.
485
Examplesinclude:MémoiredelaRépubliqueArgentinefP orlpMillsontheRiverUruguay
(Argentina v. Uruguay), 15 January 2007 at para. 9.2: “La République argentine se réserve la
possibilitédecompléteretamenderlecaséchéantlesprésentesconclusions,notammentenfonction
de l’évolution de la situation”; Memorial of Mexico for thease Concerning Avena and Other
Mexican Nationals (Mexico v. United States of America2 ),0 June 2003 at para. 40: “Mexico
reserves the right to modify or extend the terms of its requested judgment, as well as the grounds
invoked in this Memorial”; the Application instituting proceedings in the Fisheries Jurisdiction
(Spain v. Canada)case, filed in the Registry of the Court on 28 March 1995, at Section 7: “The
Kingdom of Spain reserves the right to modify and extend the terms of this Application, as well
as the grounds invoked”.
486
Counter-Memorial, para. 9.20(iii).
487 Title of proceedings.
- 192 -Applicant’s membership in NATO, but also in other “international, multilateral
andregionalorganizationsandinstitutions”ofwhichtheRespondentisamember.
Of particular concern to theApplicant is the Respondent’s stance in relation to
theApplicant’smembershipoftheEuropeanUnion. TheApplicant’sconcerns
are not “hypothetical”, as recent pronouncements by the Respondent in relation
489
to the European Union make clear.
6.27. The Respondent asserts that theApplicant’s reservation of rights serves
no purpose and merely restates the obvious. However, this assertion is based on
the Respondent’s own reformulation of the reservation of rights sought by the
490
Applicant.
6.28. The Respondent also asserts that the Applicant’s “threat to implement
its “reservation of rights” would materially modify and extend the scope of
491
the dispute as clearly defined in the Memorial.” This assertion is untenable:
the Applicant’s concerns as expressed in its reservation of rights relate to the
very same subject matter of the dispute that is before the Court, namely the
“applicationofArticle11(1)oftheInterimAccordof13September1995”.This
is reflectedinter alia in the title of the case. As such, the reservation of rights
does not to transform “the subject of the dispute originally before the Court”.
488 See, e.g.,Note verbale dated 22 September 2009 from the Applicant’s Ministry of Foreign
AffairstotheRespondent’sLiaisonOfficeinSkopje:Reply,Annex39;andtheRespondeA ntise
Memoire(30 September 2009): Reply, Annex 40; see further the ApplicantA ’side Memoire(1
March 2010): Reply, Annex 53; and Verbal note dated 18 December 2009 from the Respondent’s
Liaison Office in Skopje to the Applicant’s Ministry of Foreign Affairs, with attached Letter
dated 14 December 2009 from the Respondent’s President, Karolos Papoulias to the Applicant’s
President, Gjorge Ivanov: Reply, Annex 49. See also George Gilson, “Fyrom name a priority”,
Athens News(15 March 2010): Reply, Annex 198; “Hope for deal on Macedonia name row: UN
official”,Agence France Presse(24 February 2010): Reply, Annex 196; and “EU/FYROM: EP
changes stance on Macedonia name dispute” European Report(25 April 2008): Reply, Annex
154.
489
See Appendix III to this Reply. For the avoidance of doubt, such statements and actions
are without doubt capable of establishing a “dispute” for the purposes of establishing the Court’s
jurisdiction, given that they undoubtedly constitute “a disagreement on a point of law or fact, a
conflictoflegalviewsorofinterestsbetween”theParties,asformulatedbythePermanentCourt
in the Mavrommatis Palestine Concessions, P.C.I.J., Series A, No,.2. 11 (1924).
490 Counter-Memorial, paras. 9.17-9.26; the reformulation is presented at para. 9.20.
491 Counter-Memorial, para. 9.23.
- 193 -The Case Concerning Territorial and Maritime Dispute between Nicaragua
and Honduras in the Caribbean Sea cited in the Counter Memorial does not2
assist the Respondent. The paragraphs that immediately follow those cited by
the Respondent make this clear:
“However, the mere fact that a claim is new is not in itself decisive for
the issue of admissibility. In order to determine whether a new claim
introduced during the course of the proceedings is admissible the Court
will need to consider whether, “although formally a new claim, the
claim in question can be considered as included in the original claim
in substance” (Certain Phosphate Lands in Nauru (Nauru v. Australia),
PreliminaryObjections,Judgment,I.C.J.Reports1992,pp.265-266,para.
65).Forthispurpose,tofindthatthenewclaim,asamatterofsubstance,
hasbeenincludedintheoriginalclaim,itisnotsufficientthatthereshould
be links between them of a general nature. Moreover,
“[a]nadditionalclaimmusthavebeenimplicitintheapplication(Temple
of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36) or must
arise ‘directly out of the question which is the subject-matter of that
Application’ (Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland),Merits,I.C.J.Reports1974,p.203,para.72)”(CertainPhosphate
LandsinNauru(Nauruv.Australia),PreliminaryObjections,Judgment,
I.C.J. Reports 1992, p. 266, para. 67).” [emphasis added]
6.29. In the present case, were the Applicant to exercise its rights under the
reservationofrights,anyadditionalclaimwouldarise“directlyoutofthequestion
which is the subject matter of [the] Application”, namely “the application of
Article 11, paragraph 1 of the InterimAccord of 13 September 1995”.
6.30. Forthereasonssetoutabove,andincircumstanceswheretheRespondent
persistsindenyingitsbreachofArticle11(1),andcontinuestothreatentofurther
492
Counter-Memorial, para. 9.24 and fn. 559: International Court of Justice, Judgment of 8
October2007,CaseconcerningterritorialandmaritimedisputebetweenNicaraguaandHonduras
in the Caribbean Sea(Nicaragua v. Honduras,)at para. 104.
493
Ibid., at para. 105.
- 194 -object to theApplicant’s membership in international, multilateral and regional
institutions and organizations in which the Applicant is to be referred to no
“differently than in paragraph 2 of Security Council resolution 817 (1993)”, the
Applicant’s reservation of right is entirely appropriate.
- 195 -- 196 - SUBMISSIONS
On the basis of the evidence and legal arguments presented in this Reply, the
Applicant
Requests the Court:
(i) torejecttheRespondent’sobjectionsastothejurisdictionoftheCourt
and the admissibility of theApplicant’s claims;
(ii) to adjudge and declare that the Respondent, through its State organs
and agents, has violated its obligations under Article 11, paragraph
1 of the InterimAccord; and
(iii) to order that the Respondent immediately take all necessary steps
to comply with its obligations under Article 11, paragraph 1 of the
Interim Accord, and to cease and desist from objecting in any way,
whether directly or indirectly, to the Applicant’s membership of the
NorthAtlanticTreatyOrganizationand/orofanyother“international,
multilateralandregionalorganizationsandinstitutions”ofwhichthe
Respondent is a member, in circumstances where theApplicant is to
be referred to in such organization or institution by the designation
provided for in paragraph 2 of United Nations Security Council
resolution 817 (1993).
8 June 2010
-----------------------------------------------
Nikola Dimitrov
Co-Agent of the Republic of Macedonia
- 197 -- 198 - 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
- 199 -- 200 -APPENDICES
- 201 -- 202 - APPENDIX 1
SELECTION OF INTERNATIONALPRESSARTICLES REPORTING
THE RESPONDENT’S OBJECTION TO THEAPPLICANT’S
MEMBERSHIPOF NATO
Articles Reported on the Official Websites of the Respondent
1. Embassy of the Respondent in Washington, DC, “Speech of FM Ms.
Bakoyannisbeforethegoverningparty’sParliamentaryGroup”(27March
2008), accessed 21 May 2010: Memorial,Annex 89:
“…In this way, our government gradually built – step by step, in a
methodical and well-organised manner – the option of exercising
its inalienable right of veto as a NATO member state. We thus
succeeded in making clear the positionwe 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.” 494
2. Embassy of the Respondent in Washington, DC,PM Karamanlis briefed
on new Nimetz proposal on FYROM name (27 March 2008), accessed 21
May 2010: Reply,Annex 174:
“AskedbyreporterswhethertheprospectofGreecevetoingFYROM
membership in NATO continued to stand, Bakoyannis replied:
‘Greece’s position is clear, and I don’t need to repeat it. However, I
will say it again:If there is no mutually acceptable solution on the
name, Greece cannot consent to allied relations with Skopje’.”
494 ItalicshereandinthesubsequentquotedextractsdenoteanemphasisaddedbytheApplicant.
- 203 -3. Consulate Office of the Respondent in LosAngeles, CA,Prime Minister
addresses off-the-agenda discussion on FYROM issue (11 April 2008),
accessed 21 May 2010: Reply,Annex 147:
“Thepremier[PrimeMinisterCostasKaramanlis]alsounderlined,in
hisreplytotheotherpartyleaderslaterthesamesessionthaG t reece
will not budge from its proclaimed position as long the name issue
remains unsolved. ‘Only a solution will lead to an invitation to join
NATO.Only a solution will lead to establishing a date for the start
of accession negotiations into the EU’, he stressed…”
4. Embassy of the Respondent in Washington, DC,Greece steadfast on ‘no
FYROM name solution means no NATO invitation’, just hours ahead of
crucial Alliance summit (3 April 2008), accessed 21 May 2010: Reply,
Annex 137:
“Greecereiterateditssteadfastpositionthatnomutuallyacceptable
solutiontotheFYROMnameissuewouldmeannoNATOmembership
invitation to the neighboring country. This statement was made
on Wednesday just hours before a crucial North Atlantic Treaty
Organization summit opened in Bucharest, with the enlargement
of theAlliance being a top item on the agenda.
Foreign Minister Dora Bakoyannis reiterated that ‘no solution of
the name issue means no invitation’, speaking to reporters after a
final meeting with Prime Minister Costas Karamanlis and Defense
Minister Evangelos Meimarakis at the government headquarters
ahead of the Summit…
In response to aquestion on whether a ‘trilateral’meeting between
US, Greek and FYROM officials would be held on the sidelines
of the summit, Bakoyannis said that there was no information to
that effect, adding that theGreek position was ‘crystal-clear’even
thoughitpossiblydidnotcoincidewiththepositionsofotherNATO
member countries.”
- 204 -5. MinistryofForeignAffairsoftheResponden Mt,essageofPrimeMinisterMr.
KostasKaramanlis(3April2008),accessed21May2010:Memorial,Annex99:
“Due to Greece’s veto, FYROM is not joining NATO.
Ihadsaidtoeveryone–ineverypossibletoneandineverydirection
– that ‘a failure to solve the name issue will impede their invitation’
to join the Alliance. And that is what I did. Skopje will be able to
become a member of NATO only after the name issue has been
resolved.”
Articles from the Respondent’s Press
6. “Athens won’t back FYROM’s EU and NATO entry without mutually
agreed solution, gov’t says”,Athens News Agency (5 November 2004):
Reply,Annex 91:
“The spokesman was responding to questions on whether Greece
would veto FYROM’s future NATO and EU entry, in the wake of
a recently announced U.S. decision to recognize the republic with
its constitutional name ‘Republic of Macedonia’ that is disputed
by Greece as historically inaccurate and concealing designs on a
northernGreekprovinceofthesamename.Notingthattheaccession
ofaEuropeancountryintotheEUandNATOrequiredtheunanimous
agreement of existing members, he stressed that Greece would not
go along with such a decision unless a solution was found.”
7. DoraAntoniou: “FYROM solution lies in compound name”K , athimerini
(15 October 2007), accessed 21 May 2010: Reply,Annex 167:
“Is Greece ready to do everything in its power to achieve that, in
view of Skopje’s prospects of joining NATO?
The answer is yes. Greece believes that good-neighborly relations
and the resolution of problems is a condition for participation in an
alliance. [Minister Dora Bakoyannis]”
- 205 -8. “PremierdanglesFYROMveto”K , athimerini(23February2008),accessed
21 May 2010: Memorial,Annex 80:
“PrimeMinisterCostasKaramanlisforthefirsttimeyesterdaymade
knownhisviewsontheproposalsbyUNmediatorMatthewNimetz
ontheMacedonianamedisputeand warnedthatGreecewouldblock
the Former Yugoslav Republic of Macedonia’s bid to join NATO
unless a mutually acceptable solution is found.”
9. “Name dispute hampers NATO’s Balkan plans”,Kathimerini (7 March
2008), accessed 21 May 2010: Reply,Annex 107:
“The three Balkan nations are hoping to be invited to join NATO
at an alliance summit early next month in Bucharest, Romania. ut
Greece has threatened to veto FYROM’s entry because of a dispute
over the country’s name…
‘As long as there is no solution (on the name) there will be an
insurmountableobstacle,’toFYROMjoiningNATOortheEuropean
Union, said Foreign Minister Dora Bakoyannis.”
10. “AthenstalkstoughonFYROM”,Kathimerini(15March2008),accessed
21 May 2010: Reply,Annex 109:
“Athens upped the stakes yesterday in its name dispute with the
Former Yugoslav Republic of Macedonia (FYROM) when Prime
Minister Costas Karamanlis suggested that any solution would rest
on a composite name with a geographical qualifier.
Karamanlis insisted yesterday that Greece would stick to its line of
vetoing FYROM’s bid unless the name dispute is resolved.”
11. “FYROM veto seems likely”,Kathimerini (1 April 2008), accessed 21
May 2010: Reply,Annex 122:
“Athens yesterday dug its heels in further on the Macedonia name
dispute,sayingitwouldvetoSkopje’sbidtojoinNATOatanalliance
- 206 - summit this week unless a compromise is reached on the Balkan
country’s name.
‘We have stated our position repeatedly - I will say it again: No
solution means no invitation,’ Foreign Minister Dora Bakoyannis
said yesterday in the face of growing pressure fromWashington for
a last-ditch settlement.”
12. “Greek diplomats brace for pressure at NATO summit”,Kathimerini (2
April 2008), accessed 21 May 2010: Reply,Annex 128:
“Greece’s top diplomats have the whole country behind them in
barringSkopje’sbidtojoinNATOforaslongastheMacedonianame
disputeremainsunresolved,ForeignMinisterDoraBakoyannissaid
yesterdayasshepreparedtotraveltoBucharestforacrucialalliance
summit. ‘We have the country’s full political backing,’Bakoyannis
said yesterday after briefing the Inner Cabinet on diplomatic
preparations for the summit, which is to extend membership
invitations to Albania, Croatia and the Former Yugoslav Republic
of Macedonia (FYROM)…
Bakoyannis, due in Bucharest today along with Prime Minister
Costas Karamanlis, explained Greece’s stance in an opinion piece
published in the International Herald Tribune yesterday. ‘As long
as this problem persists we cannot and will not endorse FYROM
joining NATO or the European Union. No Greek government will
ever agree to it,’she wrote.
Karamanlisalsotriedtomustersomeinternationalbacking,reportedly
telephoning German Chancellor Angela Merkel and other foreign
leaders.
According to sources, Karamanlis and Bakoyannis analyzed the
possiblescenariosthatwouldfollowaGreekvetoofFYROM’sbid
to join theAtlantic alliance.
Meanwhile opposition leaders were unanimous in their calls for a
veto.”
- 207 -13. “FYROMremainsoutofNATObecauseofGreekvetoovernamedispute”,
Phantis (3April 2008), accessed 21 May 2010: Reply,Annex 138:
“During its ongoing Summit in Bucharest NATO decided not to
extend a membership invitation to the Former Yugoslav Republic
of Macedonia (FYROM) for the time beingbecause Greece vetoed
the move after the dispute over the name of the former Yugoslav
republic remained unresolved.”
14. “Greece blocks FYROM but still wants to talk”,Kathimerini (4 April
2008), accessed 21 May 2010: Reply,Annex 142:
“Karamanlis and the Greek delegation had come under pressure,
mainlyfromWashington,toacceptadealthatwouldallowFYROM
tobegintheprocessofjoiningNATO,albeitasFYROMratherthan
its constitutional name of Republic of Macedonia.But the prime
minister underlined that Greece was not willing to budge from its
position that the name dispute must be settled before FYROM’s
membership bid can proceed.”
15. George Gilson: “Fyrom name a priority”,Athens News (15 March 2010),
accessed 21 May 2010: Reply,Annex 198:
“WashingtoniseagertoadmitFyromintotheNatomilitaryalliance,
a move Greece blocked at the April 2008 Bucharest summit.”
Article reported on NATO’s Official Website
16. “Rice Backs SpeedyAccession of Macedonia into NATO”N , ATO Off the
Wire(8 May 2008), accessed 21 May 2010: Reply,Annex 152:
“SecretaryofStateCondoleezzaRicereiteratedWednesdaythatthe
United States supports full NATO membership for Macedonia as
soonaspossible.GreecelastmonthblockedMacedonia’sentryinto
the alliance because of the dispute over Macedonia’s name.”
- 208 - Articles from the NorthAmerican Press
United States of America
17. “Greece May Block Macedonia’s NATO, EU Bids Over Name Issue”,
Dow Jones International News (5 November 2004), accessed 21 May
2010: Memorial,Annex 67:
“TheGreekgovernmentsaidFridaythatitwouldblockneighboring
Macedonia from joining the North Atlantic Treaty Organization or
theEuropeanUnionunlessanamedisputewiththeBalkanrepublic
is resolved first.”
18. Anthee Carassava: “NATO Could Block Macedonia Over Name”, The
NewYorkTimes(4March2008),accessed21May2010:Reply,Annex99:
“Macedonia, a former Yugoslav republic hopes to win NATO’s
invitation to join the 26-member military alliance at a meeting of
leadersinBucharest,Romania,inApril.ButGreecehasthreatened
to veto those plans if its northern neighbor does not relinquish its
name, which Greece contends is its exclusively. Greece says that
using the name implies a claim to the northern Greek province of
the same name.”
19. “The Republic Formerly KnownAs…”,The New York Times (30 March
2008), accessed 21 May 2010: Reply,Annex 116:
“NATO is holding its summit meeting next week, and wants to
bring in three Balkan states — Albania, Croatia and Macedonia.
But Greece, a NATO member since 1952, is threatening to veto
Macedonia’s membership over its name.”
20. David Brunnstrom and Justyna Pawlak: “Greece stands by NATO veto
threat for Macedonia”,Reuters (2 April 2008), accessed 21 May 2010:
Reply,Annex 131:
- 209 - “GreecestoodbyitsthreatonWednesdaytovetoNATOmembership
for Macedonia despite pressure from U.S. President George W.
Bush to resolve a name dispute that could fuel instability in the
Balkans.
Bush urged Greece not to use its veto as an alliance member to
preventNATOinvitingtheethnicallymixedex-Yugoslavrepublic’s
to join during a summit this week in Bucharest.
Athens has said it will prevent Skopje joining unless it changes its
constitutional name, which is the same as Greece’s northernmost
province, birthplace ofAlexander the Great.
‘We have said that no solution (to the name dispute) means no
invitation(forMacedonia),’GreekForeignMinisterDoraBakoyanni
told reporters after meeting Prime Minister Costas Karamanlis
shortly before leaving for Bucharest.”
21. Peter Baker: “For Macedonia, NATO Summit a Disappointment”,The
WashingtonPost(4April2008),accessed21May2010:Reply,Annex143:
“For 17 years, Greece has quarreled with its northern neighbor
about the name it chose after winning independence from the
collapsing Yugoslavia. But now this obscure, seemingly trivial
dispute has erupted into an international incident asGreece single-
handedly blocked NATO membership for the country it refuses to
call Macedonia….
The impasse disrupted the alliance’s carefully laid plans to expand
deeperintotheonce-troubledBalkansbyadmittingAlbania,Croatia
and Macedonia during the summit that ended here Friday.Because
itoperatesonconsensus,embarrassedNATOleadershadnochoice
but to bow to Greek objections and cross Macedonia off the list…
EveryNATOmemberagreedthatMacedoniahadmetallthecriteria
for membership, but the name issue was a deal-killer for Greece.”
22. MetodijaA. Koloski: “Aname to reckon with”,The Washington Times (4
May 2008), accessed 21 May 2010: Reply,Annex 151:
- 210 - “The recent Greek veto of the Republic of Macedonia’s NATO
membership during the NATO Bucharest Summit earlier this month
was unfounded and contrary to the principles of NATO and its
member states.
Macedonia fulfilled all of the membership criteria set forth by
NATO and all other NATO members supported its admission into
the alliance.”
23. DraganaIgnjatović:“ProgressRemainsElusiveinFYRMacedonia-Greece
name talks” Global Insight (26 March 2010): Reply,Annex 199:
“Greece has remained stringent on its position of vetoing further
Euro-AtlanticintegrationforFRYMacedoniauntilthenamedispute
is resolved. To date,Greece has vetoed FYR Macedonia’s NATO
accessionaswellaspreventedtheEUfromgivingtheBalkancountry
a start date for accession negotiations.”
Canada
24. “Name dispute drags on; Greece holds veto in scrap with NATO hopeful
Macedonia”, Windsor Star (29 March 2008): Reply,Annex 115:
“Macedonia’s government is ready to ask parliament to consider
a new name for the country to end a dispute with Greece that is
blocking its NATO membership bid…
Greece threatens to veto Macedonia’s bid unless it changes its
name…”
25. “GreecemayvetoMacedonia”,CalgarySun(2April2008):Reply,Annex
125:
“GreecehasthreatenedtovetoMacedonia’sinvitationtojoinNATO
if the former Yugoslav republic does not change its constitutional
name, which is the same as Greece’s northernmost province,
birthplace ofAlexander the Great.”
- 211 -26. “Bush to push for Ukraine and Georgia”,Winnipeg Free Press (2 April
2008): Reply,Annex 124:
“Greece… is threatening to block Macedonia’s membership
application because of a dispute over Macedonia’s name.”
27. “GreecemayvetoMacedoniaC ”,algarySun(2April2008):Reply,Annex125:
“GreecehasthreatenedtovetoMacedonia’sinvitationtojoinNATO
if the former Yugoslav republic does not change its constitutional
name…”
28. AntonioMilošoski(theApplicant’sForeignMinister):“WhywasNATO’s
doorslammedinourface?;Greeceuseditsvetoagainstacountrythatdares
speak its name”,The Globe and Mail (29April 2008): Reply,Annex 150:
“GreecehasblockedNATOmembershipfortheRepublicofMacedonia.
It has done it by abusing the right of veto, with incredible ease.”
Articles from the European Press
29. “Karamanlis: Greece to veto Macedonia’s EU, NATO bids if name issue
not resolved”,Southeast European Times (7 September 2007), accessed
21 May 2010: Memorial,Annex 71:
“Prime Minister Costas Karamanlis saidThursday (September 6th)
evening thatGreece will veto Macedonia’s accession to NATO and
the EU if the longstanding name dispute between the two countries
is not resolved.”
30. “Greece, FYROM to meet over name dispute”, European Report (7
December 2007): Reply,Annex 169:
“AthenshasthreatenedtovetotheFYROM’sbidtoenterbothNATO
and the EU unless Skopje agrees on a compromise.”
- 212 -31. “Greece threatens to veto Macedonia’s NATO bid”,European Voice (27
March 2008), accessed 21 May 2010: Reply,Annex 113:
“Seizing the leverage offered by Macedonia’s NATO membership
bid, Greece is therefore determined to impose a veto unless and
until an agreed solution is found. Macedonia has been recognised
by some 120 countries but has to use ‘Former Yugoslav Republic
of Macedonia’in multilateral settings.”
32. Aleksandar Matovski: “Macedonia after Bucharest: Avoiding another
European Failure in the Balkans”,ISS Opinion (13 June 2008), accessed
21 May 2010: Reply,Annex 205:
“AttheSummit,however,Macedonia’smembershipbidwasblocked
byitsfirstneighbourGreece–thesoleNATOmemberopposingthe
invitation of membership to Macedonia.”
The Applicant
33. “Canadian Defense Minister asks for change in NATO consensus on
admitting new members”, Macedonian Information Agency (8 March
2009), accessed 21 May 2010: Reply,Annex 153:
“AtameetingwithhisUScounterpartRobertGatesinWashington,
McCay [Canadian Defense Minister] asked NATO to revise the
article for consensus in order to avoid any possible failures due to
bilateral issues, such as those between Greece and Macedonia and
Slovenia and Croatia,which result in blocking the Alliance while
admitting new members.”
The Balkans
34. “NATO Urges Macedonia solution”,BalkanInsight.com (3 March 2008),
accessed 21 May 2010: Reply,Annex 98:
- 213 - “AthensisthreateningtoblockSkopje’sNATObidifthecountrydoes
not change its constitutional name ‘Republic of Macedonia’…
Senior NATO officials have said over the past few months that the
name of Macedonia is not a precondition for NATO accession but
they remain concerned over a possible Greek veto.”
35. Sinisa-Jakov Marusic: “Greece uncertain on Macedonia’s EU Progress”,
BalkanInsight.com (22 September 2009), accessed 21 May 2010: Reply,
Annex 156:
“Last year,Athens blocked Skopje’s NATO entry over the row and
threatenedtoimposeasecondvetoonMacedonia’sEUaccessionbid.”
United Kingdom
36. Marcin Grajewski: “Greece threatens Macedonia NATO veto”,Reuters
UK (6 March 2008), accessed 21 May 2010: Reply,Annex 103:
“Greek Foreign Minister Dora Bakoyanni [sic] said she told NATO
foreign ministers at a meetinginBrusselsthatMacedonia’sattitude
could leave Athens no alternative but to use its veto at an alliance
summit in Bucharest next month…
Athens has said it will block Macedonia’s NATO and European
UnionaccessionuntilthetwoagreeonanameforGreece’snorthern
neighbour, which broke away from Yugoslavia in 1991.”
37. “GreecerejectsMacedoniaNatobid”B ,BCNews(6March2008),accessed
21 May 2010: Reply,Annex 104:
“Greece has said it cannot support Macedonia’s bid to join Nato,
because of an unresolved dispute over its Balkan neighbour’s
name.
GreekForeignMinisterDoraBakoyannistoldreportersinBrussels
thatAthensbackedinvitingAlbaniaandCroatiabutcouldnotconsent
to asking Macedonia.”
- 214 -38. “Greece pressed over Macedonia”, The Independent (7 March 2008):
Reply,Annex 108:
“Nato nations cranked up pressure on Greece yesterday to allow
Macedonia to join the Alliance, warning that leaving the Balkan
nation isolated could add to regional instability… Greece has
threatened to veto Macedonia’s entry because of a dispute over the
country’s name.”
39. SpencerP.BoyerandJamesD.Lamond:“NATO:ExpansionandDivision”,
The Henry Jackson Society (22 March 2008), accessed 21 May 2010:
Reply,Annex 76:
“Macedoniahasmetthenecessarycriteriatoobtainaninvitationfor
NATOmembership,andexpandingmembershiptotheBalkanswill
helpcreateandmaintainstabilityinthisvolatileregion.Macedonia
hasalsobeenhelpfultoNATOinKosovoandelsewhereintheworld.
It shouldn’t be held hostage to the insecurities of Greece.
… NATO should push Greece to moderate its unreasonable stance
and reach compromise with Macedonia.”
40. “GermanyadvocatesNATOmembershipforMacedoniaB ”,BCMonitoring
Europe (2April 2008): Reply,Annex 127:
“Skopje and Athens have been disputing the name Macedonia
since 1991. For this reason, until nowthe accession of the former
Yugoslav republic to NATO has threatened to fail because of a veto
by Greece.”
41. “NATO to admit Croatia andAlbania but delays Macedonia”R , euters (2
April 2008), accessed 21 May 2010: Reply,Annex 132:
“‘Forthemoment,Greeceisnotinapositiontoagreetotheentryof
Macedoniaand it will be Croatia andAlbania first,’Moratinos told
Spanish reporters after the leaders discussed NATO enlargement at
a summit dinner in Bucharest.
- 215 - Greece had said it would veto the former Yugoslav republic’s entry
until a dispute over the use of the name Macedonia, shared with the
most northerly Greek province, is resolved…”
42. Anne Penketh: “US and Ukraine challenge Russia on NATO expansion”,
TheIndependent(2April2008),accessed21May2010:Reply,Annex134:
“A third invitation had been expected for Macedonia. However,
GreecerepeatedyesterdaythatitwouldvetoMacedoniajoini unless
there was an agreement with Athens on the country’s name.”
43. HarrydeQuetteville:“MacedoniarowovershadowsNATOsummit”T ,he
Telegraph (2April 2008), accessed 21 May 2010: Reply,Annex 130:
“…Greece has repeatedly warned that however trivial the issue
may appear to outsiders,it is willing to veto FYROM’s candidacy
for Nato unless its neighbour backs down over claims to the name
Macedonia.”
44. JulianBorger:“KarzaiSeeksBiggerRoleforLargerAfghanArmy:Move
Cheers NATO Leaders Split over New Members: French Troop Pledge
Falls Short of Partners’ Hopes”,The Guardian(3 April 2008), accessed
21 May 2010: Memorial,Annex 100:
“The summit was split on whether to offer membership prospects
toGeorgiaorUkraine,whileGreecewasabletoblockMacedonian
membership single-handed.
GreecewasbitterlyopposedtotheaccessionofMacedonia,favoured
bytherestofthealliance,becauseoftheformerYugoslavrepublic’s
name,whichAthensarguesimpliesaterritorialclaimonthenorthern
Greek province of Macedonia. ‘For the moment,Greece is not in a
position to agree to the entry of Macedonia and it will be Croatia
andAlbaniafirst,’Spain’sforeignminister,MiguelÁngelMoratinos
told reporters late last night.”
- 216 -45. Oana Lungescu: “Nato Macedonia veto stokes tension”,BBC News (4
April 2008), accessed 21 May 2010: Reply,Annex 140:
“Macedonia’s bid was blocked by Greece because of a 17-year row
over the country’s name.”
46. MichaelEvans,FrancisElliot:“SummitsetbackforNatoexpansionplan”,
The Times (4April 2008): Reply,Annex 141:
“The hitch over Fyrom also spoilt what was supposed to be a
celebration of three new Balkan countries joining the alliance —
Albania, Croatia and Fyrom itself.All three had passed the tests for
membership, but Greece vetoed Macedonia on the ground that it
had the same name as its northern province.After failing to reach a
compromise,NatoleaderswereforcedtoputtheinvitationtoFyrom
on hold until the clashing names could be resolved.”
Denmark
47. MinistryofForeignAffairsofDenmark,BrusselssaysNATOmembership
would help EU hopefuls (2 April 2008), accessed 21 May 2010: Reply,
Annex 133:
“…Macedonia’s future hinges on Greek demands that it change
its name. Greece signalled Wednesday that, barring a last-minute
compromise,it would veto a formal invitation to Macedonia to join
NATO, as the transatlantic alliance opened a three-day summit.”
France
48. “Greece to veto Macedonia’s EU, NATO accession if no deal on name:
reports”, Agence France Presse (5 November 2004), accessed 21 May
2010: Memorial,Annex 66:
“EUandNATOmemberGreecewillvetoMacedonia’spossibleentry
intobothorganisationsifthetwocountriesreachnodealonthename
- 217 - bywhichMacedoniaisinternationallyrecognized ,thepressquoted
Friday Greek Prime Minister Costas Karamanlis as saying.”
49. “Greece rejects Macedonia’s NATO entry in name row”,Agence France
Presse (6 March 2008): Reply,Annex 102:
“Greece stood firm Thursday and refused to allow Macedonia to
join the NATO military allianceuntil a row over its name, that has
festered for more than 17 years, has been resolved…
AsNATOforeignministersconsideredwhethertohandmembership
invitations to Macedonia, Albania and Croatia next month,Greek
ForeignMinisterDoraBakoyannissaidhercountrycouldonlyback
two of the candidates.
‘Greece supports the candidacy of Albania and Croatia,’ she said,
but added that‘issues which are intertwined do not allow us to take
the same position’for Macedonia.
According to NATO officials and diplomats, the so-calledAdriatic
Threehavealllargelymetthetechnicalcriteriatojointhe26-national
transatlantic alliance.
ButGreece is blocking Macedonia because its name is the same as
a northern Greek province.
NATOSecretaryGeneralJaapdeHoopSchefferunderscoredthatthe
militaryallianceisaconsensusorganisationthatworksonunanimity,
and that Greece had the upper hand as a member nation.”
50. “Greece says it will block NATO invite to Macedonia”,Agence France
Presse (2April 2008): Reply,Annex 126:
“GreecesignalledWednesdaythat,barringalast-minutecompromise,
itwould veto a formal invitation to Macedonia to join NATO, as the
transatlantic alliance opened a three-day summit.
‘As long as this important problem persists, Greece cannot give its
consentfortheinvitation,’aGreekforeignministryspokesmansaid.
- 218 - ‘I am afraid that we are running out of time dramatically regarding
this summit.’
Macedonia -- the southernmost of the former Yugoslav republics
-- is keen to join the North Atlantic Treaty Organization, but its
ambitions have been challenged by neighbour Greece in a dispute
over its official name.”
51. Despic-Popovic: “La fragile Macédoine déstabilisée par l’intransigeance
d’Athènes” Libération (14April 2008): Reply,Annex 149:
“La Macédoine a fait l’objet d’un veto de la Grèce qui lui reproche
d’usurper un nom qui n’appartient qu’au patrimoine hellénique.
Admiseàl’ONUsouslenomd’ancienneRépubliqueyougoslavede
Macédoine(Arymou,plusutilisé,Fyrom,enanglaisl)a , Macédoine,
indépendante depuis 1991, s’était dite prête à un ultime compromis
en prenant le nom de République de Macédoine (Skopje). Mais
cela n’a pas été suffisant pour calmer Athènes….Le veto grec a
relancé les frustrations nationalistes de la majorité macédonienne
qui pourrait se détourner de l’Europe et de tout compromis avec la
minorité albanaise. Car rien ne dit qu’Athènes ne mettra pas son
veto à l’entrée de Skopje dans l’Union européenne.”
Germany
52. “Greece Blocking NATO Expansion –Which MacedoniaWasAlexander
the Great From?”, Spiegel Online (29 March 2008), accessed 21 May
2010: Reply,Annex 114:
“To outsiders, the dispute seems absurd: Athens is blocking
Macedonia’sNATOmembershipbecauseGreecewantsitsneighbor
to the north to change its name…
[T]he Name Game has thrown a wrench in the NATO expansion
works.Greece,amemberofthealliance,saysthatitwillonlyagree
to accept Macedonia if it changes its name. The controversy will
- 219 - notonlyovershadowtheNATOsummitinBucharest,Romanianext
week. It could seriously jeopardize the planned expansion of the
alliance and plunge Macedonia into a domestic political crisis.”
53. “Croatia: invitation to join NATO”,Wieninternational.at (9April 2008),
accessed 21 May 2010: Reply,Annex 144:
“There was some criticism of Greece’s veto of membership by
Macedonia. Greece is obstructing NATO enlargement because it
claims the name Macedonia for itself.”
54. “NATO Wannabe Macedonia Demands ‘Freedom and Justice’”,Spiegel
Online (7 March 2008), accessed 21 May 2010: Reply,Annex 105:
“…Greece onThursday once againthreatened to veto the country’s
membership in NATO if it doesn’t change its name…
AthensisconcernedthatwereMacedoniathecountrytoshareaname
withMacedoniatheprovince,thenSkopjemightlayclaimtoabigchunk
ofnorthernGreece.FollowingMacedonia’ssecessionfromYugoslavia
in1991,GreeceagreedtoallowthefledglingrepublicintotheUNand
otherinternationalorganizationsonlyundertheprovisionalnameof
theFormerYugoslavRepublicofMacedonia--orFYROMforshort.
Now, the Greeks are saying they won’t even allow Macedonia into
NATO under the acronym, saying that the long-standing dispute
has to be solved first.”
Ireland
55. “GreecemayvetoMacedonia’sbidtojoinNato”,TheIrishTimes(1April
2008): Reply,Annex 123:
“OntheeveofNato’ssummitinRomania,Macedoniaisstillunsure
whether Greece will veto its invitation to join the bloc…
…GreeceistheonlyNatomembertoopposemembershipforanyof
the Balkan trio – and only until the name dispute is settled…”
- 220 - Romania
56. “Greek opposition postpones Macedonia’s accession to NATO”, BBC
Worldwide Monitoring and Rompres (3 April 2008), accessed 27 May
2010: Reply,Annex 136:
“Bucharest,April3(Rompres)–TheNATOleadersexpressedtheir
hope that Macedonia will be invited as soon as possible to join the
Alliance, asGreece announced that as long as a compromise is not
[in] reach on the name issue,the Athens administration is against
accepting the northern neighbour, the press agencies inform.
NATOspokesmanJamesAppathuraisaidonWednesdayeveningthat
the Greek delegation clearly explained that Macedonia’s accession
is impossible before the dispute on the name is solved.”
Russia
57. “GreecerebuffsMacedonia’sNATOmembershipovernamechange” Ria
Novosti (31 March 2008), accessed 28 May 2010: Reply,Annex 119:
“Dora Bakoyannis told journalists: ‘Our position is known: no
solution to the problem - no invitation.’An invitation to join NATO
can only be given if all alliance member countries agree.
Macedonia, which hopes to receive an invitation to join NATO at a
NATO summit in Bucharest in April, is holding talks with Greece
to try and resolve the issue.”
Serbia
58. “Greece will veto Macedonia’s NATO bid”,B92 (8 September 2007),
accessed 21 May 2010: Reply,Annex 93:
“UnlessthereisacompromiseoveritsnameM , acedonia’ssouthern
neighbor Greece will veto Skopje’s effort to join NATO… The
- 221 - statement came Friday, from the Greek prime minister, Kostas
Karamanlis.
‘It is out of the question for Skopje to become a member of any
organization,beitNATOortheEU,unlessthatcountryoptsforadopting
anameacceptabletoall,”hesaidduringateleviseddebateinAthens.’
Karamanlis went on to say thathis country will use veto to block
Macedonia’s membership in both organizations.”
Slovakia
59. “SlovakiasupportsMacedonia’sefforttojoinNATO,EU”P ,eople’sDaily
Online (12 March 2008), accessed 21 May 2010: Memorial,Annex 86:
“CrvenkovskisaidthatMacedoniahasnotyetsolveditslong-lasting
dispute with Greece over its name, which hasthreatened to block
Macedonia’s entry to NATO and the European Union.”
60. Hristo Ivanovski: “Interview: Janez Jansa, Former Slovenian Prime
Minister - Macedonia was a Victim in Bucharest”,Dnevnik (21 March
2009), accessed 21 May 2010: Memorial,Annex 105:
“InBucharestGreecevetoedMacedonia’sNATOmembership.This
was the sole obstacle to the country’s accession to membership of
the Alliance, since everybody agreed that Macedonia had fulfilled
all the membership criteria...”
61. Goran Momirovski: “Janez Jansa: The decision not to invite Macedonia
to membership was adopted because of the Greek veto on Macedonia”,
Kanal5TV(25June2009),accessed21May2010:Memorial,Annex106:
“If one country does not give its consent then there can be no
invitation to membership. So no consensus was reached regarding
their position. Instead, all those of us who were in agreement that
Macedonia should be invited to membership, did not have the
agreement of one lone country, and that country was Greece.”
- 222 - Turkey
62. “NATOconsiderBalkanmembershipasGreeksthreatenvetT o”,kishPress.
com (6 March 2008), accessed 21 May 2010: Reply,Annex 101:
“NATO foreign ministers debatedThursday whether to invite three
Balkanscountriestojointhemilitaryalliance,asGreecethreatened
to veto the entry of Macedonia.
… [I]n an organisation where every nation holds a veto, Greece
willhavethefinalwordontinyMacedonia,whichisstrivingtojoin
less than seven years after NATO helped end an ethnic Albanian
uprising there.”
Articles from theAustralasian Press
Australia
63. “Greece opposes NATO bid – Macedonia Dispute”,Sydney MX(7 March
2008): Reply,Annex 106:
“Greece has said it cannot support Macedonia’s bid to join NATO,
becauseofanunresolveddisputeoveritsBalkanneighbour’sname.”
Articles from theAsian Press
China
64. “U.S.vowstosupportMacedonia’sNATObid”X , inhua(17March2008):
Reply,Annex 111:
“Greece has threatened to use its NATO-member status to veto
Macedonia’s accession efforts at the NATO’s April 2-4 submit in
Bucharest, Romania, if there is no agreement on the name issue by
then.”
- 223 -65. “NATO leaders agree to invite Croatia,Albania to join allianc, inhua
(3April 2008), accessed 21 May 2010: Reply,Annex 135:
“For the third aspirant country, Macedonia, the leaders hoped that
it can be invited as soon as possible given the fact thatGreece, a
NATO ally, has made clear that it will veto the invitation unless
Macedonia changes its official name.
He[NATOspokesmanJamesAppathurai]saidtheGreekdelegation
made very clear on Tuesday night that Macedonia’s accession to
NATO would be impossible before the settlement of the name
dispute.”
Lebanon
66. UffeEllemann-Jensen:“TwodangeroussignalsfromtheBucharestNATO
summit”, The Daily Star (10April 2008): Reply,Annex 146:
“…GreecesuccessfullyvetoedmembershipforMacedonia,amove
thatreflectedthetwocountries’unresolvedconflictoverMacedonia’s
name…”
Saudi Arabia
67. “GreecedissatisfiedwithUNproposalonMacedonianame”S , audiPress
Agency (26 March 2008), accessed 21 May 2010: Reply,Annex 173:
“…Greece has threatened to veto Macedonia’s upcoming bid to
join NATO over the use of the name, which it has objected to since
Macedonia gained independence in 1991…”
- 224 - APPENDIX II
SELECTION OF STATEMENTS MADE BYTHE RESPONDENT’S
REPRESENTATIVES VOICING ITS OPPOSITION TO THE
APPLICANT’S MEMBERSHIPOFTHE EUROPEAN UNION UNTIL
SUCH TIMEAS THE NAME DIFFERENCE IS RESOLVED TO ITS
SATISFACTION
1. Respondent’sMinistryofForeignAffairs,AlternateFMDroutsas’speech
atthejointsessionoftheParliamentaryStandingCommitteesonDefense
andForeignAffairsandonEuropeanAffairs(22January2009),accessed
21 May 2010: Reply,Annex 190:
“‘The condition for further progress is crystal clear.In order for
the Former Yugoslav Republic of Macedonia to start accession
negotiations with the EU, there must be a mutually acceptable
solution on the name issue: a solutionin line with our national red
line.’”
2. Respondent’sMinistryofForeignAffairs,StatementsofForeignMinister
Bakoyannis following the EU General Affairs and External Relations
Council (27 July 2009), accessed 21 May 2010: Reply,Annex 155:
“Journalist: Are you worried about the possibility of the European
Commission proposing the start of accession negotiations with
FYROM in the fall?
Ms. Bakoyannis:The Greek position is well known.Greece cannot
consent to the start of negotiations without prior resolution of the
name issue… There are various levels on which counterparts,
partners and allies have been briefed. We have been following a
specificpolicyforaverylongtime,wehavebriefedNATO,wehave
been briefing the European Union and the countries with which
Greece has bilateral relations, as well as our partners and allies.
- 225 - This time we thought it was necessary to do that at the level of the
Council, and so we did.”
3. Respondent’s Ministry of Foreign Affairs, Alternate Foreign Minister
Droutsas’presentation of the basic parameters of Greece’s foreign policy
to diplomatic correspondents (22 October 2009), accessed 21 May 2010:
Reply,Annex 157:
“Within this framework, we will also work for Skopje’s accession
course, but I stress once again,prior resolution of the name issue is
a prerequisite, and let me make the reminder once more – to avoid
anymisunderstandings–thatthematteroftheopeningofaccession
negotiations is exclusively up to the member states, and thus it is
up to Greece.”
4. Respondent’s Ministry of Foreign Affairs, Interview of Alternate FM
Droutsas on ‘Thema 98.9’radio, with journalists B. Koutras & R. Bizogli
(29 October 2009), accessed 21 May 2010: Reply,Annex 158:
“Mr. B. Koutras: So Mr. Droutsas, if the name issue is not resolved
at the December summit, Greece will veto the start of accession
negotiations for Skopje. Isn’t that right?
Mr. D. Droutsas: I would prefer the wording that I’ve repeatedly
used …
Mr. B. Koutras: Go ahead.
Mr. D. Droutsas:The start of accession negotiations is within the
exclusivecompetencyoftheEuropeanUnion’smemberstates,soitis
also up to Greece, whose precondition for the opening of accession
negotiations with Skopje is the prior resolution of the name issue.
AndtheGreekpositiononthisissue–ournationalredlineaswe’ve
called it – is clear and well known to everyone.
- 226 -5. Respondent’s Ministry of Foreign Affairs, Alternate Foreign Minister
Droutsas’interview on NETradio with journalist S. Trilikis (4 November
2009), accessed 21 May 2010: Reply,Annex 159:
“Mr.Droutsas:Wehavesaidthatonthiscoursethereareprerequisites.
Each country has to meet criteria and prerequisites. And I stress
once again – so that we can be clear on this – what we have said
repeatedly.ForSkopje,thismeansthatifitwantstobeginaccession
negotiations with the European Union, it first needs to resolve the
name issue. This is a prerequisite for us.
And on the name issue, there is the well known national red line,
from which Greece will not make any deviation.”
6. Respondent’s Ministry of Foreign Affairs, Interview of Alternate FM
Droutsas in the “Real News” daily (22.11.09) (22 November 2009),
accessed 21 May 2010: Reply,Annex 194:
“The veto is one of the tools at our disposal, just like any other
NATO and EU member state. FYROM’s leadership has to prove
to every EU member state that it has complied with all the criteria
and prerequisites; that it respects the rules on good neighbourly
relations, abandons intransigence and nationalism and comes to
the negotiations under the auspices of the UN with a constructive
mindset in order to find a definitive solution on the name issue.
Therecannotbeastartofaccessionnegotiationswithoutthisissue’s
resolution. It’s plain and simple.”
7. Respondent’s Ministry of Foreign Affairs, Briefing of diplomatic
correspondents by Alternate FM Droutsas and Deputy FM Kouvelis –
presentation of the basic axes of Greek foreign policy (11 January 2009),
accessed 21 May 2010: Reply,Annex 187:
“Rememberthatjust10daysaftertheelections–on14October–the
EuropeanCommissionissueditsprogressreportsonTurkeyandthe
FormerYugoslavRepublicofMacedonia.Thesereportswereapoor
- 227 - point of departure for our interests.They contained positions and
recommendations that created a false pictures [sic] and contained
viewsthatIwouldcalldangerous,likethatonbilateraldisputesthat
should not impact the accession courses of candidate countries.
In this environment, we began to work ahead of the December
Council, and I believe that fast and decisive moves were made
immediately, during our first weeks in office. Moves that set the
toneoftheforeignpolicythatthegovernmentwillexercises,ending
the necessary messages to our neighbours and partners. In short,
the inert and timid Greece of the Karamanlis government is a thing
of the past...
In the European Union’s December Conclusions, we put things
back into their real perspective,despite the efforts of the Swedish
Presidency and certain member states. We made it clear that a
solution on the name issue is a precondition for the opening of
accession negotiations... .”
8. Respondent’sMinistryofForeignAffairs,AlternateFMDroutsas’speech
atthejointsessionoftheParliamentaryStandingCommitteesonDefense
andForeignAffairsandonEuropeanAffairs(22January2009),accessed
21 May 2010: Reply,Annex 190.
“And finally I come to Skopje. Our country supported the Former
YugoslavRepublicofMacedoniathroughdifficulttimesinitshistory.
We actively supported its European perspective. But there must
not be any misinterpretations.The condition for further progress
is crystal clear. In order for the Former Yugoslav Republic of
MacedoniatostartaccessionnegotiationswiththeEU,theremustbe
a mutually acceptable solution on the name issue, a solution in line
withournationalredline.Anergaomnesnamewithageographical
qualifier.”
- 228 -9. Respondent’s Ministry of Foreign Affairs, Alternate FM Droutsas’
statements following the GAC and FAC (Brussels) (22 February 2010),
accessed 21 May 2010: Reply,Annex 160.
“Journalist: I see various EU and U.S. officials saying that they
see a window of opportunity in the coming months. Do you agree
with that outlook?And if there isn’t any progress in June, what will
happen at the Summit Meeting?
Mr.Droutsas:I’llstartwithyoursecondquestion.TheGreekposition
has been clear and well known and consistent from the very outset.
Without prior resolution of the name issue, there is no question of
openingaccessionnegotiationswiththeformerYugoslavRepublicof
Macedonia.That is clear, and everyone knows it. Moreover, it was
set down in the Conclusions of the December European Council.”
- 229 - APPENDIX III
THE RESPONDENT’S ‘RED LINE’POSITION INTHE
NEGOTIATIONS OVERTHE NAME
1. “Name talks are under way; Karamanlis says Greece will not accept dual
solution to FYROM dispute”Kathimerini(1 March 2008), accessed 21
May 2010: Reply,Annex 171.
“…Prime Minister Costas Karamanlis made it clear that Athens
would not accept a dual name as solution to the dispute…
KaramanlisconfirmedthisinParliamentyesterdaywhenhesaidthat
Greece would not accept any name that refers to the type of polity
in FYROM, such as Constitutional Republic of Macedonia.”
2. “Greece’s thin red line”Kathimerini (13 September 2008), accessed 21
May 2010: Reply,Annex 191.
“The mediator’s new suggestion regarding the recognition of a
‘Macedonianminority’aloneindicatesthathisproposalhac srossed
one of the red lines set by Greece’s foreign policy makers…
However,theUnitedNationsmediatoralsohastorealizethatthere
are some red lines that are non-negotiable for Greece.”
3. Respondent’s Ministry of Foreign Affairs,Statements of Alternate FM
Droutsas and Bulgarian Deputy FM Raykov following their meeting, 11
January 2009 (11 January 2009), accessed 21 May 2010: Reply, Annex
186.
“Within this framework, I [Alternate FM Droutsas] had the
opportunitytobriefMr.Raykov–onceagain–onGreece’sposition
on the FYROM name issue: our wellknown national ‘red line’for
a name with a geographical qualifier, for all uses – erga omnes.”
- 230 -4. Respondent’s Ministry of Foreign Affairs, Briefing of diplomatic
correspondents by Alternate FM Droutsas and Deputy FM Kouvelis –
presentation of the basic axes of Greek foreign policy (11 January 2009),
accessed 21 May 2010: Reply,Annex 187.
“In this way, we wanted to show the whole world that Greece is
coming to the negotiations on this issue with an open mind and
constructive stance – but also with a crystal clear position, our
national red line: a name with a geographical qualifier for use in
all instances, ‘erga omnes’.”
5. Respondent’sMinistryofForeignAffairs,AlternateFMDroutsas’speech
atthejointsessionoftheParliamentaryStandingCommitteesonDefense
andForeignAffairsandonEuropeanAffairs(22January2009),accessed
21 May 2010: Reply,Annex 190.
“In order for the Former Yugoslav Republic of Macedonia to start
accession negotiations with the EU, there must be a mutually
acceptable solution on the name issue. a [sic] solution in line with
our national red line. An erga omnes name with a geographical
qualifier.”
6. Respondent’s Ministry of Foreign Affairs, Alternate Foreign Minister
Droutsas’presentation of the basic parameters of Greece’s foreign policy
to diplomatic correspondents (22 October 2009), accessed 21 May 2010:
Reply,Annex 157.
“Greece’s position on this issue is well known and clear; everyone
knows it. It is ournational red line: a name with a geographical
qualifier, for use by everyone and in all instances.”
7. Sinisa-Jakov Marusic: “Greece Reiterates ‘Red Line’ For Macedonia”,
BalkaIinsight.com (10 November 2009), accessed 21 May 2010: Reply,
Annex 193.
- 231 - “TheGreekprimeministermadeitabsolutelyclearthataprecondition
for FYROM’s [Macedonia’s UN provisional reference] accession
course is the solving of the neighbouring country’s name, in
accordance with ‘national red lines’that have been set on the part
of Greece”,ANA-MPAsaid.
8. Respondent’s Ministry of Foreign Affairs, Interview of Alternate FM
Droutsas in the “Real News” daily (22.11.09) (22 November 2009),
accessed 21 May 2010: Reply,Annex 194.
“Mr. Droutsas: Greece has a national red line today, which is
supported by the majority of the country’s political forces.We are
onlydiscussinganergaomnescompoundnamewithageographical
qualifier.Thisisthepositionwealsosupportedasthemainopposition
party and we imposed it. It consolidates national interests, provides
a solution without winners and losers.This solution will strengthen
regional security and release our neighbouring country’s Euro-
Atlantic perspective.”
9. “Droutsas:GreeceNotAfraidofDirectContactwithFYROM ”,eekNews
(25 January 2010), accessed 21 May 2010: Reply,Annex 195.
“ ‘We have laid down the national ‘red line’, which is a solution
based on a geographical qualification and a single name for all
purposes,’ the minister emphasised. ‘There is only one solution,
as this is laid out by our national red line: A definitive composite
namewithgeographicalqualificationofthetermMacedonia,forall
purposes (erga omnes) and for all uses,’Droutsas underlined.
‘So long as Greece’s neighbour did not abandon its intransigent
and obstructive stance at the UN, the further it would distance itself
from its European future, the minister said, adding that Greece was
nowwaitingtoseehowGruevskiwouldreadAthensclearand non-
negotiable message’.”
- 232 -10. Respondent’s Ministry of Foreign Affairs, Text of Alternate Foreign
Minister Droutsas’ reply to a current question in Parliament (1 March
2010), accessed 21 May 2010: Reply,Annex 197.
“EquallygivenandclearisGreece’spositionwithinthisframework,
the national red line, with which a large majority of the parties here
in parliament agrees:Aname with a geographical qualifier, for use
in relation to everyone, erga omnes.”
11. Respondent’sMinistryofForeignAffairA s,lternateFMDroutsas’Interview
intheAthensdaily“RealNews”,withjournalistKatiaMakri(3April2010)
(5April 2010), accessed 21 May 2010: Reply,Annex 200.
“Mr. Droutsas: Throughout these years, successive leaderships in
Skopje have avoided the negotiations and played hide-and-seek
behind Mr. Nimetz’s proposals. Playtime is over. We are talking
clearly and we are taking the steps we need to take. And we are
saying to everyone that Greece wants a solution. And we want
a solution soon. We can arrive at a solution, but it will require
political will on the part of Skopje, as well. We are very clear: A
name with a geographical qualifier, for use in relation to everyone.
Ageographicalqualifierthatmakescleartherealityofthesituation,
and for use in relation to everyone so that the hide-and-seek can
stop and a definitive solution can be found.”
12. Respondent’s Ministry of Foreign Affairs, Briefing of diplomatic
correspondents by Foreign Ministry spokesman Gregory Delavekouras
(29April 2010), accessed 21 May 2010: Reply,Annex 202.
“…And I must say that Greece’s position is clear. We are talking
about a name with a geographical qualifier that will be used in
relation to everyone, erga omnes.
ThesetwocomponentsIamreferringtoareabsoluteprerequisitesfor
our being able to reach a solution. We have to have a geographical
- 233 -qualifier that will describe the reality of the situation: that the part
cannot represent the whole. And it has to be used in relation to
everyone–ergaomnes–sothatwedon’thaveacontinuationofthe
currentsituation,inwhichweessentiallyhaveevasionandperpetual
violationsofUNresolutionsandoftheInterimAccordthathasbeen
concluded between the two countries.
So that is why we are talking abouta name with a geographical
qualifier for use in relation to everyone, erga omnes. ‘Republic of
Northern Macedonia”’ provided it is used in relation to everyone,
obviously satisfies these prerequisites.
Ms. Ristovska: Again on the name issue. I would like to ask about
‘ergaomnes’:IsthatforbilateralrelationswithGreece,international
organisations and domestic use, i.e., inside the country?
Mr. Delavekouras:Erga omnesmeans “toward all”, I do not need
to analyse it.”
- 234 - LIST OFANNEXES
VOLUME II
NATO DOCUMENTS, CORRESPONDENCE, OFFICIALSTATEMENTS
AND PRESS RELEASES
Annex 1 NATO On-line Library, “Consensus decision-making at NATO”,
NATO Publications, accessed 21 May 2010
Annex 2 NATOOn-lineLibrary,“NATO’srelationswiththeformerYugoslav
RepublicofMacedonia”N,ATOPublications,accessed21May2010
Annex 3 NATO On-line Library, “NATOTransformed: How NATOWorks”,
NATO Publications, accessed 21 May 2010
Annex 4 NATO,JointPressPointwithNATOSecretaryGeneralJaapdeHoop
SchefferandthePresidentoftheformerYugoslavRepublicofMacedonia,
Branko Crvenkovski (5 October 2007), accessed 21 May 2010
Annex 5 NATO,Press Briefing by the NATO Spokesman James Appathurai
(5 March 2008), accessed 21 May 2010
Annex 6 Letter dated 31 March 2008 from the Respondent’s Prime Minister,
Kostas Karamanlis, as sent to all NATO Member Countries (31
March 2008)
Annex 7 NATO Press ConferenceN, ATO Secretary General Jaap de Hoop
Scheffer following the North Atlantic Council Summit meeting (3
April 2008), accessed 21 May 2010
UNITED NATIONS DOCUMENTSAND CORRESPONDENCE
Annex 8 Personal Letter dated 18 September 1992 from Cyrus Vance and
David Owen to the Co-Chairman of the Secretary-General of the
United Nations, Dr Boutros Boutros-Ghali (18 September 1992)
Annex 9 Cyrus Vance,Statement to the Security Council on the Situation in
the former Yugoslavia (13 November 1992)
- 235 -Annex 10 Letterdated23November1992fromtheUnitedNationsSecretary-
GeneralAddressedtothePresidentoftheSecurityCouncil,UNdoc.
S/24851 (25 November 1992)
Annex 11 United Nations Security Council,eport of the Secretary-General
on the Former Yugoslav Republic of Macedonia, UN doc. S/24923
(9 December 1992)
Annex 12 The Kingdom of Morocco, Non Paper (6 February 1993)
Annex 13 UnitedNationsCommissiononHumanRights,Forty-ninthSession,
SituationofHumanRightsintheTerritoryoftheFormerYugoslavia,
UN Doc. E/CN.4/1993/50 (10 February 1993) [excerpt]
Annex 14 UnitedNationsGeneralAssembly,Forty-seventhsessA ion, ission
of New Members to the United Nations,A/47/L.54 (7April 1993)
Annex 15 Letter dated 17 February 1994 from the Applicant’s Permanent
RepresentativetotheUnitedNationstothePresidentoftheSecurity
Council, UN Doc. S/1994/194 (18 February 1994)
Annex 16 Letterdated5April1995fromtheApplicant’sPermanentRepresentative
totheUnitedNationstotheSecretary-General,UNDoc.S/1995/260
(6April 1995)
Annex 17 United Nations Department of Public Informatin, ited Nations
Protection Force, Former Yugoslavia - UNPROFOR, Profi(l3e1
August 1996), accessed 28 May 2010
Annex 18 Eighth United Nations Conference on the Standardization of
Geographical Names, 27 August - 5 September 200R 2,eport on
the current status of the United Nations romanization systems for
geographical names, E/CONF.94/CRP.81 (18 June 2002)
Annex 19 Letter dated 17 November 2008 from the Applicant’s Permanent
Representative to the United Nations to the Secretary-General, with
Annexes, UN Doc.A/63/552-S/2008/718 (19 November 2008)
Annex 20 Letterdated23July2009fromtheApplicant’sPermanentRepresentative
to the United Nations, Slobodan Tašovski, to the United Nations
Secretary-General, UN doc.A/63/934-S/2009/381 (24 July 2009)
- 236 -Annex 21 Letter dated 25 September 2009 from the Respondent’s Permanent
Representative to the United Nations, Anastassis Mitsialis, to the
PresidentoftheGeneralAssembly,UNdoc.A/64/468(2October2009)
Annex 22 Letter dated 20 October 2009 from the Applicant’s Permanent
Representative to the United Nations, Slobodan Tašovski, to the
PresidentoftheGeneralAssembly,UNdoc.A/64/500(30October2009)
DIPLOMATIC CORRESPONDENCEAND DOCUMENTS
Annex 23 Noteverbaledated25December2003fromtheApplicant’sLiaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 02-01-1342/03
Annex 24 TheApplicant, Aide Memoire (March 2005)
Annex 25 Note verbale dated 6 November 2007 from theApplicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 01-777/07
Annex 26 Note verbale dated 27 February 2008 from theApplicant’s Ministry
ofForeignAffairstotheRespondent’sLiaisonOfficeinSkopje,No.
117-543/3
Annex 27 Note verbale dated 14 April 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
117-1007/2
Annex 28 Note verbale dated 15 April 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
117-1016/2
Annex 29 Note verbaledated 21 April 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
117-963/4
Annex 30 Note verbaledated 12 May 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
20-3388/1
- 237 -Annex 31 Note verbaledated 15 May 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
20-3388/3
Annex 32 Note verbale dated 21 May 2008 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
117-1436/2
Annex 33 PermanentObserverMissionoftheRespondenttotheOrganization
ofAmerican States,Washington, D.C., “Aide Memoire: Greece and
the Former Yugoslav Republic of Macedonia (FYROM), The name
issue and OAS member states”, as attached to a letter dated 1 June
2008 from the Respondent’s Permanent Observer Mission to Heads
of Delegation, the Secretary-General and the Assistant Secretary-
General of the Organization ofAmerican States (1 June 2008)
Annex 34 Note verbale dated 10 February 2009 from theApplicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 79/1/09
Annex 35 Note verbale dated 6 March 2009 from theApplicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
32-2162/1
Annex 36 Note verbale dated 10 July 2009 from the Applicant’s Ministry of
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
93-1740/4
Annex 37 Note verbale dated 26 August 2009 from the Applicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 01-475/09
Annex 38 Note verbale dated 26 August 2009 from the Applicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 32-4354/2
Annex 39 Noteverbaledated22September2009fromtheApplicant’sMinistry
ofForeignAffairstotheRespondent’sLiaisonOfficeinSkopje,No.
32-7032/1
- 238 -Annex 40 The Respondent, Aide Memoire (30 September 2009)
Annex 41 Noteverbaledated8October2009fromtheApplicant’sMinistryof
Foreign Affairs to the Respondent’s Liaison Office in Skopje, No.
32-4355/2
Annex 42 Note verbale dated 26 October 2009 from theApplicant’s Ministry
ofForeignAffairstotheRespondent’sLiaisonOfficeinSkopje,No.
32-8031/1
Annex 43 Letter of invitation dated 4 November 2009 from the Applicant’s
President, Gjorge Ivanov, to the Respondent’s President, Karolos
Papoulias (4 November 2009)
Annex 44 Verbal note dated 9 November 2009 from the Respondent’s Liaison
Office in Skopje to theApplicant’s Ministry of ForeignAffairs, No.
F. 141.1/139/AS 1491
Annex 45 Letter dated 11 November 2009 from the Applicant’s Minister of
Foreign Affairs, Antonio Milošoski, to the Respondent’s Prime
Minister, GeorgeA. Papandreou (11 November 2009)
Annex 46 Verbalnotedated12November2009fromtheRespondent’sLiaison
Office in Skopje to theApplicant’s Ministry of ForeignAffairs, No.
F. 141.1/144/AS 1531
Annex 47 Letterdated16November2009fromthePresidentoftheApplicant’s
Assembly, Trajko Veljanoski, to the President of the Respondent’s
Parliament, Philippos Petsalnikos (16 November 2009)
Annex 48 Letter dated 14 December 2009 from the Respondent’s Director
General for Political Affairs in the Ministry of Foreign Affairs,
Tryphon S. Paraskevopoulos to the Applicant’s Ambassador, H.E.
Blagoj Handziski (14 December 2009)
Annex 49 Verbalnotedated18December2009fromtheRespondent’sLiaison
OfficeinSkopjetotheApplicant’sMinistryofForeignAffairs,with
attached Letter dated 14 December 2009 from the Respondent’s
President, Karolos Papoulias to the Applicant’s President, Gjorge
Ivanov, No. F. 141.1/163/AS 1756
- 239 -Annex 50 Letterdated3February2010fromtheApplicant’sPresident,Gjorge
Ivanov, to the Respondent’s President, Karolos Papoulias
Annex 51 Note verbale dated 15 February 2010 from theApplicant’s Ministry
ofForeignAffairstotheRespondent’sLiaisonOfficeinSkopje,No.
32-1124/1
Annex 52 Note verbale dated 15 February 2010 from theApplicant’s Ministry
ofForeignAffairstotheRespondent’sLiaisonOfficeinSkopje,No.
32-1125/1
Annex 53 TheApplicant, Aide Memoire (1 March 2010)
Annex 54 Note verbale dated 22 March 2010 from the Applicant’s Office for
Consular, Economic and Commercial Affairs to the Respondent’s
Ministry of ForeignAffairs, No. 01-108/1
Annex 55 Note verbale dated 31 March 2010 from the Applicant’s Liaison
Office in Athens to the Respondent’s Ministry of Foreign Affairs,
No. 01-02-195/10 & 44-513/1
Annex 56 Verbal note dated 31April 2010 from the Respondent’s Ministry of
ForeignAffairstotheApplicant’sLiaisonOfficeinAthens,No.582
OTHER DOCUMENTS
Annex 57 DirectGov(UKGovernment’sDigitalService),“NATO:HowNATO
Works”, Directgov, accessed 21 May 2010
Annex 58 Letters related to the InterimAccordU1NTS I-32193, at 12-18
Annex 59 Statement of Sir Jeremy Greenstock, (29 May 2010)
Annex 60 Excerpt from Draft B of the InterimAccord from the archives of the
Respondent’s Ministry of Foreign Affairs as printed in Annex 148
of the Respondent’s Counter-Memorial (17April 1994)
Annex 61 Excerpt from Draft C of the InterimAccord from the archives of the
Respondent’s Ministry of Foreign Affairs, as printed in Annex 148
of the Respondent’s Counter-Memorial (23April 1994)
- 240 -Annex 62 Excerpt from Draft E of the InterimAccord from the archives of the
Respondent’s Ministry of Foreign Affairs, as printed in Annex 148
of the Respondent’s Counter-Memorial (15 March 1994)
Annex 63 RobinO’Neill,ReporttothePresidentoftheCouncilofMiniste irs
MichalisPapakonstantinou(eAd.) olitician’sDiary:TheInvolvement
of Skopje, Third Edition (Estia Booksotres, Athens) (1 December
2001)
Annex 64 International Crisis Group, “Macedonia’s name: why the dispute
matters and how to resolve I,nternational Crisis Group Balkans
Report No. 122 (10 December 2001)
Annex 65 UnitedStatesCongressionalResearchServic Re,portforCongress
– NATO’s Decision-Making Procedure (5 May 2003)
Annex 66 Leo Michel, “NATO Decisionmaking:Au Revoir to the Consensus
Rule?”, Strategic Forum, No. 202 (August 2003)
Annex 67 Letterdated11October2005fromtheApplicant’sAmbassadorNikola
Dimitrov toAmbassador Matthew Nimetz (11 October 2005)
Annex 68 StatementmadebytheRespondent’sPrimeMinister,KostasKaramanlis,
duringaforeignpolicydebateintheRespondent’sParliam Seesti,on
of the Greek Parliament Held on 31 October 2005 [excerpt]
Annex 69 CouncilofEurope,DirectorGeneraM l,emorandum(8March2007)
Annex 70 United States Department of State, Report on United States-Greek
Relations,Washington,DC(14November2007),accessed21May2010
Annex 71 Official Note dated 21 February 2008 from Applicant’s Interior
Ministry to the Applicant’s Head of Unit for External Security of
Objects, No. 169/21.02.2008 (21 February 2008)
Annex 72 ChargesheetissuedbytheApplicant’sInteriorMinistry,(21February
2008)
Annex 73 Officialrequestdated22February2008fromtheApplicant’sInterior
Ministry to the Applicant’s Central Police Service, No. 17.8.4-112
(22 February 2008)
- 241 -Annex 74 Official note dated 22 February 2008 from Applicant’s Interior
Ministry to the Applicant’s Central Police Service, (22 February
2008)
Annex 75 Statement made by the Respondent’s Prime Minister, Kostas
Karamanlis,duringaforeignpolicydebateheldintheRespondent’s
ParliamentSession of the Greek Parliament Held on 22 February
2008 [excerpt]
Annex 76 Spencer P. Boyer and James D. Lamond, “NATO: Expansion and
Division”,The Henry Jackson Society(22 March 2008), accessed
21 May 2010
Annex 77 Statement made by the Respondent’s Prime Minister, Kostas
Karamanlis, in the Respondent’s ParliamenS,ssion of the Greek
Parliament Held on 28 March 2008 [excerpt]
Annex 78 “TimetoabolishthenationalvetoonnewNATOandEUmembers”,
TheHenryJacksonSociety(31March2008),accessed21May2010
Annex 79 Statement made by the Respondent’s Foreign Minister, Dora
Bakoyannis, in the Respondent’s ParliamenS,ssion of the Greek
Parliament Held on 10 April 2008 [excerpt]
Annex 80 BritishHouseofCommonsDefenceCommittee,T fhtureofNATO
and European defence: Government response to the Committee’s
Ninth Report of Session 2007-08, Eight Special Report of Session
2007-08, HC 660 (19 June 2008) [excerpt]
Annex 81 CouncilonForeignRelationT ,anscript:RemarksbyFormerNATO
Secretary-General (25 February 2009), accessed 21 May 2010
Annex 82 United States Congressional Research Service,reece Update (16
December 2009)
Annex 83 The Respondent’s ParliamentH, istorical Map of Greece, Issue IV
(2003)
Annex 84 [Intentionally blank]
Annex 85 [Intentionally blank]
- 242 - PRESSARTICLESAND STATEMENTS
1. The Interim Accord
Annex 86 Farhan Haq, “Greece-Macedonia: both sides agree to end dispute,
embargo”, IPS-Inter Press Service (13 September 1995)
Annex 87 “Foreign Press Center briefing withAmbassador Matthew Nimetz,
specialWhiteHouseEnvoysubject:Macedonia-Greekagreements”,
White House Briefing (18 September 1995)
Annex 88 Ruth Wedgwood, “Macedonia: a Victory for Quiet Diplomacy”,
Christian Science Monitor (19 October 1995)
2. The Respondent’s Objection
Annex 89 “Greek office says report on blocking of FYROM NATO, EU Bids
‘Misunderstanding’”, MIA Daily Report (25 January 2001)
Annex 90 “GreeceannouncessupportforMacedonia’sEntranceinNATOand
EU”, MIA Daily Report (23 May 2004)
Annex 91 “Athenswon’tbackFYROM’sEUandNATOentrywithoutmutually
agreed solution, gov’t says”,Athens News Agency(5 November
2004)
Annex 92 AleksandarMatovski,“MacedoniaafterBucharest:AvoidingAnother
European Failure in the Balkans”, ISS Opinion (13 June 2008)
Annex 93 “GreecewillvetoMacedonia’sNATObiB d”9,2(8September2007),
accessed 21 May 2010
Annex 94 “AthenswillnotdareapplyvetoS”k,opjeVreme(14September2007)
Annex 95 Press Office of the Respondent’s Embassy in Washington DC,
Bakoyannis on use of veto against FYROM (16 November 2007),
accessed 21 May 2010
Annex 96 Embassy of the United States of America in Skop,NA news
agencySkopjeInterviewwithU.S.AmbassadorinMacedoniaGillian
Milovanovic (13 February 2008), accessed 21 May 2010
- 243 -Annex 97 Embassy of the Respondent in Washington,Cr,ime Minister on
FYROM: ‘No solution means no invitation’ (29 February 2008),
accessed 21 May 2010
Annex 98 “NATO Urges Macedonia solution”B,alkanInsight.com (3 March
2008), accessed 21 May 2010
Annex 99 Anthee Carassava, “NATO Could Block Macedonia Over Name”,
The New York Times (4 March 2008), accessed 21 May 2010
Annex 100 EmbassyoftheRespondentinWashington,D ICt,erviewofForeign
Minister Ms. D. Bakoyannis on MEGAChannel’s evening news,
withjournalistOlgaTremion4March2008(5March2008),accessed
21 May 2010
Annex 101 “NATO consider Balkan membership as Greeks threaten veto”,
TurkishPress.com (6 March 2008), accessed 21 May 2010
Annex 102 “Greece rejects Macedonia’s NATO entry in name roA”,ence
France Presse (6 March 2008)
Annex 103 Marcin Grajewski, “Greece threatens Macedonia NATO veto”,
Reuters UK (6 March 2008), accessed 21 May 2010
Annex 104 “Greece rejects Macedonia Nato bB,BC News(6 March 2008),
accessed 21 May 2010
Annex 105 “NATO Wannabe Macedonia Demands ‘Freedom and Justice’”,
Spiegel Online (7 March 2008), accessed 21 May 2010
Annex 106 “Greece Opposes NATO Bid – Macedonia DisputeSy,dney MX(7
March 2008)
Annex 107 “Name dispute hampers NATO’s Balkan plans”K,athimerini(7
March 2008), accessed 21 May 2010
Annex 108 “Greece pressed over Macedonia”,The Independent (7 March
2008)
Annex 109 “Athens talks tough on FYROM” ,athimerini(15 March 2008),
accessed 21 May 2010
- 244 -Annex 110 ConsulateGeneraloftheRespondent,SanFrancisco,C Int,erview
of FM Ms. Bakoyannis with the German daily Suddeutsche Zeitung
(17 March 2008), accessed 21 May 2010
Annex 111 “U.S. vows to support Macedonia’s NATO bi”i,nhua (17 March
2008)
Annex 112 “No progress in row over name of former Yugoslav Republic of
Macedonia–UNenvoyU ”,NNewsCentre(25March2008),accessed
21 May 2010
Annex 113 “GreecethreatenstovetoMacedonia’sNATObid ”,ropeanVoice
(27 March 2008), accessed 21 May 2010
Annex 114 “Greece Blocking NATO Expansion – Which Macedonia Was
Alexander the Great From?”,Spiegel Online(29 March 2008),
accessed 21 May 2010
Annex 115 “Name dispute drags on; Greece holds veto in scrap with NATO
hopeful Macedonia”, Windsor Star (29 March 2008)
Annex 116 “The Republic Formerly Known As…” T,he New York Times (30
March 2008), accessed 21 May 2010
Annex 117 US Department of Stat, aily Press Briefing, Tom Casey, Deputy
Spokesman,Washington,DC(31March2008),accessed21May2010
Annex 118 “Athens holds its ground in name dispute”, Kathimerini (31 March
2008), accessed 25 May 2010
Annex 119 “GreecerebuffsMacedonia’sNATOmembershipovernamechange”,
Ria Novosti (31 March 2008), accessed 28 May 2010
Annex 120 DonaldSteinberg,“WhichMacedonia? n,ternationalCrisisGroup
(1April 2008), accessed 25 May 2010
Annex 121 “Government on Karamanlis-Papandreou talks over name issue”,
Athens News Agency (1April 2008)
Annex 122 “FYROM veto seems likely”,athimerini(1April 2008), accessed
21 May 2010
- 245 -Annex 123 “Greece may veto Macedonia’s bid to join Nat”,e Irish Times
(1April 2008)
Annex 124 “Bush to push for Ukraine and Georgia”,innipeg Free Press (2
April 2008)
Annex 125 “Greece may veto Macedonia”, Calgary Sun (2April 2008)
Annex 126 “Greece says it will block NATO invite to MacedoniaA,gence
France Presse (2April 2008)
Annex 127 “Germany advocates NATO membership for Macedonia” ,BC
Monitoring Europe (2 April 2008)
Annex 128 “GreekdiplomatsbraceforpressureatNATOsummK ia,thimerini
(2April 2008), accessed 21 May 2010
Annex 129 Embassy of the Respondent in Washington, DCP, sends letters
to leaders of NATO members - states on FYROM (2 April 2008),
accessed 21 May 2010
Annex 130 HarrydeQuetteville:“MacedoniarowovershadowsNATOsummit”,
The Telegraph (2April 2008), accessed 21 May 2010
Annex 131 David Brunnstrom and Justyna Pawlak: “Greece stands by NATO
vetothreatforMacedonia”R,euters(2April2008),accessed21May
2010
Annex 132 “NATOtoadmitCroatiaandAlbaniabutdelaysMacedon Ra”,ers
(2April 2008), accessed 21 May 2010
Annex 133 Ministry of Foreign Affairs of Denmark,Brussels says NATO
membership would help EU hopefuls (2 April 2008), accessed 21
May 2010
Annex 134 AnnePenketh:“USandUkrainechallengeRussiaonNatoexpansion”,
The Independent (2April 2008), accessed 21 May 2010
Annex 135 “NATO leaders agree to invite Croatia, Albania to join alliance”,
Xinhua (3April 2008), accessed 21 May 2010
Annex 136 “Greek opposition postpones Macedonia’s accession to NATO”,
BBC Worldwide Monitoring and Rompres (3April 2008)
- 246 -Annex 137 EmbassyoftheRespondentinWashington,DG Cr,eecesteadfaston
‘no FYROM name solution means no NATO invitation’, just hours
aheadofcrucialAlliancesummit(3April2008),accessed21May2010
Annex 138 “FYROM remains out of NATO because of Greek veto over name
dispute”, Phantis (3April 2008), accessed 21 May 2010
Annex 139 EmbassyoftheRespondentinWashington,D Ca,koyannis:Greece
satisfied with NATO result on FYROM (4 April 2008), accessed 21
May 2010
Annex 140 Oana Lungescu: “Nato Macedonia veto stokes tenBB,C News
(4April 2008), accessed 21 May 2010
Annex 141 MichaelEvans,FrancisElliot:“SummitsetbackforNatoexpansion
plan”, The Times (4April 2008)
Annex 142 “GreeceblocksFYROMbutstillwantstotalK ka,thimerini(4April
2008), accessed 21 May 2010
Annex 143 Peter Baker: “For Macedonia, NATO Summit a Disappointment”,
The Washington Post (4April 2008), accessed 21 May 2010
Annex 144 “Croatia: invitation to join NA, ien International (9 April
2008), accessed 21 May 2010
Annex 145 EmbassyoftheRespondentinWashington,DF CY,ROM:Articleby
FMspokesmanMrG.KoumoutsakosintheAthensdailyKathimerini,
entitled‘Bucharest:Thedayafter’(9April2008),accessed21May
2010
Annex 146 Uffe Ellemann-Jensen: “Two dangerous signals from the Bucharest
NATO summit”, The Daily Star (10April 2008)
Annex 147 Consulate Office of the Respondent in Los Angeles,P,rime
Minister addresses off-the-agenda discussion on FYROM issue (11
April 2008), accessed 21 May 2010
Annex 148 Respondent’s Ministry of Foreign AffP,arliamentarySpeech
of Foreign Minister Dora Bakoyai11April 2008), accessed 30
May 2010
- 247 -Annex 149 Despic–Popovic:“LafragileMacédoinedéstabiliséeparl’intransigeance
d’Athènes”, Libération (14April 2008), accessed 21 May 2010
Annex 150 Antonio Milošoski (the Applicant’s Foreign Minister): “Why was
NATO’s door slammed in our face?; Greece used its veto against a
country that dares speak its namT,he Globe and Mail (29 April
2008)
Annex 151 Metodija A. Koloski: “A name to reckon withT”,he Washington
Times (4 May 2008), accessed 21 May 2010
Annex 152 “Rice Backs Speedy Accession of Macedonia into NATO N”,TO
Off the Wire (8 May 2008), accessed 21 May 2010
Annex 153 “Canadian Defense Minister asks for change in NATO consensus
on admitting new members”M , acedonian Information Agency (8
March 2009), accessed 21 May 2010
3. The Respondent’s Stance on the Applicant Joining the European Union
Annex 154 “EU/FYROM: EP changes stance on Macedonia name dispute”,
European Report (25April 2008)
Annex 155 Respondent’s Ministry of Foreign AffairS,tatements of Foreign
MinisterBakoyannisfollowingtheEUGeneralAffairsandExternal
Relations Council (27 July 2009), accessed 21 May 2010
Annex 156 Sinisa-Jakov Marusic: “Greece uncertain on Macedonia’s EU
Progress”,BalkanInsight.com (22 September 2009), accessed 21
May 2010
Annex 157 Respondent’sMinistryofForeignAffaiA rlt,ernateForeignMinister
Droutsas’presentation of the basic parameters of Greece’s foreign
policytodiplomaticcorrespondents(22October2009),accessed21
May 2010
Annex 158 Respondent’sMinistryofForeignAffaiI rs,terviewofAlternateFM
Droutsas on ‘Thema 98.9’radio, with journalists B. Koutras & R.
Bizogli (29 October 2009), accessed 21 May 2010
- 248 -Annex 159 Respondent’sMinistryofForeignAffairlt,ernateForeignMinister
Droutsas’ interview on NET radio with journalist S. Trilikis (4
November 2009), accessed 21 May 2010
Annex 160 Respondent’s Ministry of Foreign Affs,lternate FM Droutsas’
statements following the GAC and FAC (Brussels) (22 February
2010), accessed 21 May 2010
4. Name Negotiations
Annex 161 Stephen Weeks: “Greece ready to compromise in Balkan name
dispute”, Reuters News (10April 1996)
Annex 162 “Another FYROM name proposal is shunned”K , athimerini(10
October 2005), accessed 25 May 2010
Annex 163 “LasttossofFYROMdiceK ”,athimerini(13October2005),accessed
25 May 2010
Annex 164 “PMonforeignoffensiveK”,athimerini(1November2005),accessed
25 May 2010
Annex 165 Stavros Tzimas: “Seeking a balance on the FYROM name issue”,
Kathimerini (25 January 2007), accessed 25 May 2010
Annex 166 “GreekPrimeMinisterDeniesNegotiationsonMacedonia‘Dropped’”,
NET Television Network (7 September 2007)
Annex 167 DoraAntoniou:“FYROMsolutionliesincompoundn Kamtem, erini
(15 October 2007), accessed 21 May 2010
Annex 168 EmbassyoftheRespondent,Washington,D Cr,eece,FYROMtalks
resume;UN’sNimetztovisitAthensandSkop (eNovember2007),
accessed 25 May 2010
Annex 169 “Greece, FYROM to meet over name dispute”,ropean Report(7
December 2007),
Annex 170 “Mathew Nimitz: The Ohrid meeting one of the best thus far, yet
no proposal for a new nam, acedonian Information Agency (21
January 2008), accessed 25 May 2010
- 249 -Annex 171 “Nametalksareunderway;KaramanlissaysGreecewillnotaccept
dual solution to FYROM dispute, athimerini(1 March 2008),
accessed 21 May 2010
Annex 172 “UN mediator Nimetz has not brought new name proposal, leaves
fromSkopjetoAthens”M, acedonianInformationAgenc(5March
2008), accessed 26 May 2010
Annex 173 “Greece dissatisfied with UN proposal on Macedonia e”, di
Press Agency (26 March 2008), accessed 21 May 2010
Annex 174 Embassy of the Respondent in Washington, PM, Karamanlis
briefedonnewNimetzproposalonFYROMname(27March2008),
accessed 21 May 2010
Annex 175 EmbassyoftheRespondentinWashington,U DC,mediatorNimetz’s
complete statement following Monday’s meeting (27 March 2008),
accessed 21 May 2010
Annex 176 “Greece irked by Nimetz’s new propos”,athimerini (27 March
2008), accessed 25 May 2010
Annex 177 “PMraps‘falsity’ofnameproposalK”,athimerini(28March2008),
accessed 25 May 2010
Annex 178 “Athens has few options left on nam, athimerini (29 March
2008), accessed 25 May 2010
Annex 179 “MacedoniamullsnamechangeT ”,heIndependet29March2008)
Annex 180 Vladimir Lazarevik: “Letter, Macedonia Responds to Ge”,eT
New York Times (4April 2008), accessed 21 May 2010
Annex 181 “PASOKspokesmanonFYROMnameissue A”t,hensNewsAgency
(22April 2008)
Annex 182 Respondent’s Ministry of Foreign Affairs,Minister of Foreign
Affairs,AntonioMilošoski,givesinterviewfortheGreeknewspaper
‘Eleftherotypia’ (10August 2008), accessed 25 May 2010
Annex 183 “Nimetz to intensify name tal,athimerini (24 August 2008),
accessed 25 May 2010
- 250 -Annex 184 Embassy of the Respondent, Washington, DC, UN Envoy Matthew
Nimetz holds talks with Greek, FYROM representatives3 June
2008), accessed 25 May 2010
Annex 185 Embassy of the Respondent, Washington, DCF ,M Bakoyannis:
Name solution the only subject of the negotiation with FYROM (27
August 2008), accessed 25 May 2010
Annex 186 Respondent’sMinistryofForeignAffaS ira,tementsofAlternateFM
DroutsasandBulgarianDeputyFMRaykovfollowingtheirmeeting,
11 January 2009 (11 January 2009), accessed 21 May 2010
Annex 187 Respondent’s Ministry of Foreign AffaiB,riefing of diplomatic
correspondentsbyAlternateFMDroutsasandDeputyFMKouvelis
– presentation of the basic axes of Greek foreign policy (11 January
2009), accessed 21 May 2010
Annex 188 [Intentionally blank]
Annex 189 Respondent’sMinistryofForeignAffaiS rp,eechofFMBakoyannis
at an event hosted by the Constantine Karamanlis Institute for
Democracy (16 February 2009), accessed 21 May 2010
Annex 190 Respondent’s Ministry of Foreign Affas,lternate FM Droutsas’
speechatthejointsessionoftheParliamentaryStandingCommittees
onDefenseandForeignAffairsandonEuropeanAffa (isJanuary
2009), accessed 21 May 2010
Annex 191 “Greece’sthinredline”,athimerini(13September2008),accessed
21 May 2010
Annex 192 Sinisa-JakovMarusic:“CreativityUrgedFromGreece,Macedonia”,
BalkanInsight.com (25 September 2009), accessed 25 May 2010
Annex 193 Sinisa-JakovMarusic:“GreeceReiterates‘RedLine’ForMacedonia”,
BalkanInsight.com (10 November 2009), accessed 21 May 2010
Annex 194 Respondent’sMinistryofForeignAffairs,InterviewofAlternateFM
Droutsasinthe“RealNews”daily(22.11.0( 92)2November2009),
accessed 21 May 2010
- 251 -Annex 195 “Droutsas: Greece Not Afraid of Direct Contact with FYROM”,
GreekNews (25 January 2010), accessed 21 May 2010
Annex 196 “HopefordealonMacedonianamerow:UNofficA ile,nceFrance
Presse (24 February 2010)
Annex 197 Respondent’sMinistryofForeignAffairT s,xtofAlternateForeign
MinisterDroutsas’replytoacurrentquestioninParliament(1March
2010), accessed 21 May 2010
Annex 198 George Gilson, “Fyrom name a priority”,thens News (15 March
2010), accessed 21 May 2010
Annex 199 DraganaIgnjatovic:“ProgressRemainsElusiveinFYRMacedonia-
Greece name talks” Global Insight (26 March 2010)
Annex 200 Respondent’s Ministry of Foreign Affais,lternate FM Droutsas’
Interview in the Athens daily “Real News”, with journalist Katia
Makri (3 April 2010) (5April 2010), accessed 21 May 2010
Annex 201 TranscriptofatelevisioninterviewwithRobinO’Neillforthetelevision
programme “Otvoreno so Narodot”, broadcast onMacedonian
TelevisionMTV) on 10 May 2010
Annex 202 Respondent’s Ministry of Foreign Affair,riefing of diplomatic
correspondentsbyForeignMinistryspokesmanGregoryDelavekouras
(29April 2010), accessed 21 May 2010
5. Other Press Articles
Annex 203 “Macedonia Explains ‘Offensive’Greek FlagB”, lkanInsight.com
(31 March 2008), accessed 26 May 2010
Annex 204 Edward P. Joseph: “Averting the Next Balkan War: How to Solve
theGreekDisputeOverMacedonia’sName Sp,iegelOnline(2June
2008) accessed 21 May 2010
- 252 -
Reply of the former Yugoslav Republic of Macedonia