The Former Yugoslav Republic of Macedonia vs.

Greece Judgment of 5 December 2011

Facts: Former Yugoslav Republic of Macedonia (hereinafter the Applicant) filed in the Registry of the Court an Application instituting proceedings against the Hellenic Republic (hereinafter the Respondent) in respect of a dispute concerning the interpretation and implementation of the Interim Accord signed by the parties on 13 September 1995, which entered into force on 13 October 1995. In particular, the Applicant sought to establish the violation by the Respondent of its legal obligations under Article 11, paragraph 1, of the Interim Accord and to ensure that the Respondent abides by its obligations under Article 11 of the Interim Accord in relation to invitations or applications that might be made to or by the Applicant for membership of NATO or any other international, multilateral or regional organization or institution of which the Respondent is a member". However, Greece reserves the right to object to any membership referred to above if and to the extent The former Yugoslav Republic of Macedonia is to be referred to in such organization or institution differently than in paragraph 2 of the United Nations Security Council resolution 817 (1993), i.e. as The former Yugoslav Republic of Macedonia. The former Yugoslav Republic of Macedonia contends, in particular, that Greece vetoed its application to join NATO because Greece desires to resolve the difference between the Parties concerning the constitutional name of the Applicant as an essential precondition for The former Yugoslav Republic of Macedonias membership of NATO. The Applicant argues that it has met its obligations under the Interim Accord not to be designated as a member of NATO with any designation other than the former Yugoslav Republic of Macedonia and it affirms that the subject of this dispute does not concern either directly or indirectly the difference that has arisen between Greece and itself over its name. Greece claims that the Court has no jurisdiction to hear the c ase or the case is inadmissible. Issue: 1) Whether or not the court has jurisdiction

2) Whether or not the Respondent has breached its obligations by objecting to the admission of the Applicant to NATO/ Whether or not the Applicant Failed to Comply with Its Obligations under the Interim Accord.

Held: 1) The court has jurisdiction to entertain the Application filed by the Former Yugoslav Republic of Macedonia on 17 November 2008 and that this Application is admissible. The parties included a provision conferring jurisdiction on the Court (Art. 21) in an agreement that also required them to continue negotiations on the dispute over the name of the Applicant (Art. 5, para. 1). Had the parties considered that a future ruling by the Court would interfere with diplomatic negotiations mandated by the Security Council, they would not have agreed to refer to it disputes concerning the interpretation or implementation of the Interim Accord. Accordingly, the Respondents objection to the admissibility of the Application based on the alleged interference of the Courts Judgment with ongoing diplomatic negotiations mandated by the Security Council cannot be upheld. 2) The Hellenic Republic, by objecting to the admission of the former Yugoslav Republic of macedonia to NATO, has breached its obligation under Article 11, paragraph 1, of the Interim Accord of 13 September 1995. The Respondent failed to comply with its obligation under Article 11, paragraph 1, of the Interim Accord by objecting to the Applicants admission to NATO at the Bucharest Summit. The prospect that the Applicant would refer to itself in NATO using its constitutional name did not render that objection lawful under the exception contained in the second clause of Article 11, paragraph 1. In the circumstances of the present case, Article 22 of the Interim Accord does not provide a basis for the Respondent to make an objection that is inconsistent with Article 11, paragraph 1.

Additional justifications invoked by the Respondent: The Court observes that while the Respondent presents separate arguments relating to the exceptio, partial suspension under Article 60 of the 1969 Vienna Convention, and countermeasures, it advances certain minimum conditions that are common to all three arguments. First, the Respondent bases each argument on the allegation that the Applicant breached several provisions of the Interim Accord prior to the Respondents objection to the Applicants admission to NATO. Secondly, each argument, as framed by the Respondent, requires the Respondent to show that its objection to the Applicants admission to NATO was made in response to the alleged breach or breaches by the Applicant, in other words, to demonstrate a connection between any breach by the Applicant and any objection by the Respondent. The Court begins with the Respondents claim that the second clause of Article 11, paragraph 1, imposes an obligation on the Applicant not to be referred to in an international organization or institution by any reference other than the provisional designation (as the former Yugoslav Republic of macedonia). The Respondent alleges that the Applicant has failed to comply with such an obligation. The Applicant, for its part, asserts that the second clause of Article 11, paragraph 1, does not impose an obligation on the Applicant, but instead specifies the single circumstance under which the Respondent may object to admission. The Court notes that on its face, the text of the second clause of Article 11, paragraph 1, does not impose an obligation upon the Applicant. The Court further notes that, just as other provisions of the Interim Accord impose obligations only on the Applicant, Article 11, paragraph 1, imposes an obligation only on the Respondent. The second clause contains an important exception to this obligation, but that does not transform it into an obligation upon the Applicant. Accordingly, the Court finds no breach by the Applicant of this provision. With regard to the issue concerning respondent's allegations that the Applicant breached several of its obligations under the Interim Accord, the Court however concludes that the Respondent has established only one

such breach. Namely, the Respondent has demonstrated that the Applicant used the symbol prohibited by Article 7, paragraph 2, of the Interim Accord in 2004. After the Respondent raised the matter with the Applicant in 2004, the use of the symbol was discontinued during that same year. Article 7, paragraph 2, provides: Upon entry into force of this Interim Accord, the Party of the Second Part shall cease to use in any way the symbol in all its forms displayed on its national flag prior to such entry into force. The Court finds that the record does support the conclusion that there was at least one instance in which the Applicants army used the symbol prohibited by Article 7, paragraph 2, of the Interim Accord. 3) The court rejects all other submissions made by the former Yugoslav Republic of Macedonia.