B. Objections on Jurisdiction and Admissibility

The Applicant founded the Court's jurisdiction on Article 21(1) IA, but Greece questioned it on several grounds. Firstly, Greece invoked an exception in the jurisdictional clause (Article 21(2) IA), which refers in turn to Article 5(1) IA (above) and Resolution 817, and removes from the Court's jurisdiction ‘the difference … arisen over the name of the [Applicant]’. Second, Greece recalled that, under Article 22, the ‘Accord [could] 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’. Accordingly, since the challenged conduct was essential in order to perform a duty under the NATO regime, it allegedly fell outside the regulatory reach of the IA, including its jurisdictional clause.

Third, the Respondent maintained that FYROM's claim was directed against NATO's failure to invite it to the Bucharest Summit, therefore a finding of the Court would implicate a judgment on the legality of NATO's action, in violation of the Monetary Gold principle whereby the Court cannot pronounce on the rights and duties of parties that are not participating to the case, and have therefore not given their consent to its jurisdiction.Footnote ³ Lastly, Greece posited that the Court's decision could not have effective application, and in any case would frustrate the negotiations about the name. Therefore, even if the Court was deemed to have competence in the abstract, a finding of inadmissibility would be necessary to preserve the propriety of its judicial function, in Greece's opinion.Footnote ⁴

The Court rejected all these objections. It found that the dispute underpinning the Applicant's claim was only about the violation of Greece's obligation ‘not to object’ to FYROM's NATO aspirations. Since the exception of Article 21(2) only covered the different dispute about the ‘definitive name’ of the Applicant, it could not apply to the case at bar (Paragraph 34). An extensive reading of this clause, excluding the Court's competence on all controversies relating ‘to some extent’ to the name dispute, would frustrate the Accord, the purpose of which is precisely to isolate such dispute and make every other matter subject to a legal regime capable of being enforced before the Court (Paragraphs 36–7).

The objection under Article 22 was treated as a defence on the merits, and will be analysed below.Footnote ⁵ The Court further noted that its decision on the conduct of the Respondent would not implicate a determination of the responsibility of NATO or of its members, but solely of Greece's agents. Since the responsibility of any subject other than Greece lay outside the subject matter of FYROM's claim, the Monetary Gold objection failed (Paragraphs 43–4).

Moreover, the Court rejected the claims of inadmissibility. Noting that FYROM did not request a reversal of NATO's decision in the Bucharest Summit or a modification of the conditions for NATO membership, it considered that a declaration of violation would have a practical effect and serve as satisfactory remedy capable of being applied (Paragraph 50). The fact that negotiations were ongoing, finally, could not be deemed a legal obstacle ‘to the exercise by the Court of its judicial function’ (Paragraph 57).Footnote ⁶

C. Findings on the Merits

The Court, in order to ascertain whether a violation of Article 11(1) IA had occurred, clarified the meaning of the obligation ‘not to object’ contained therein, and whether Greece could invoke the second clause of Paragraph 1 (the ‘safeguard clause’), whereby it reserved the right to object ‘if and to the extent [that FYROM] is to be referred to’ in the international organization by any name other than ‘FYROM’.

The Parties agreed that the negative wording of the clause entailed that Greece had no positive duty to support FYROM's applications to international organizations (IOs) and posed an obligation of conduct, rather than one of result. Greece accordingly has no obligation to secure that FYROM's applications are ultimately successful, as long as it does not object thereto. On the other hand, this implicates that the actual impact of Greece's objection on the fate of FYROM's applications to IOs is irrelevant as regards its responsibility under Article 11(1). The Court rejected Greece's contention that Article 11(1) only barred it from casting a negative vote—or a veto—against FYROM's membership applications, and found that the obligation also applied in the NATO context, whose membership procedure does not require a formal vote (Paragraph 70).

Turning to the facts in issue, the Court observed that on several occasions Greece's officials had issued public statements expressing its impatience with FYROM's attitude in the name dispute, and referring to the satisfactory conclusion of the negotiations as a precondition for FYROM's accession to NATO. FYROM also pointed to similar statements contained in the Greece's diplomatic correspondence with other NATO members and IOs circulated before and after the Bucharest Summit. Such evidence—unchallenged by Greece—was deemed sufficient to prove that ‘the Respondent manifested its objection’ to FYROM's admission to NATO (Paragraph 81).

The Court then considered whether FYROM's open intention to refer to itself in NATO by its constitutional name (‘Republic of Macedonia’) would justify Greece's use of the ‘safeguard clause’. The Court, noting that FYROM had consistently used its constitutional name when referring to itself since 1995, read Article 11(1) in its context—in light of the whole Accord and the UN Security Council resolutions referred therein—and observed that had the Parties actually intended to change FYROM's established conduct they would most likely have done it expressly, as they did in other provisions of the Accord, rather than by mere implication. As a consequence, the Court held that the exception could only operate if FYROM intended to be called ‘Republic of Macedonia’ by NATO, it being irrelevant how it would refer to itself within the organization.

Pursuant to Article 31(3)(b) of the Vienna Convention, the Court next considered the subsequent practice of the Parties,Footnote ⁷ noting that FYROM had joined various international organizations since the conclusion of the Accord, invariably being admitted under the provisional designation and referring to itself by the constitutional name. Greece had acquiesced to this practice, complaining only on rare occasions—after 2004—in any case only after FYROM's accession to the relevant organizations (Paragraph 99). Likewise, FYROM had had dealings with NATO before the Bucharest Summit (in the framework of the programmes Partnership for Peace and Membership Action Plan), using its constitutional name for self-reference purposes. The Court held in conclusion that FYROM's use of the constitutional name did not entitle Greece to object to FYROM's accession to NATO (Paragraph 101).

Greece also claimed that under Article 22 nothing in the Accord could prevent it from complying with its duties arising under prior agreements; it therefore retained the right to express its views on FYROM's candidature, as part of its duties as a NATO member. The Court simply noted that Greece had offered no persuasive evidence of the existence, in the NATO context, of such an obligation. Moreover if Greece's construction were to be upheld Article 22 ‘would erase the value of the first clause of article 11’ (Paragraph 111).

Finally, Greece advanced the view that its conduct's alleged wrongfulness was precluded in light of FYROM's previous breach of several obligations under the Accord. This defence, ultimately unsuccessful, is analysed below, with a particular focus on the exception on non-performance.Footnote ⁸

D. Remedies

The Court found that a declaration of the illegality of Greece's conduct was a satisfactory remedy. It deemed it unnecessary to order Greece to respect its obligations in the future; ‘[a]s a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed.’Footnote ⁹ In FYROM's opinion such remedy was necessary to prevent the repetition of equivalent behaviour on the part of Greece, particularly in the framework of the European Union (EU) application process.Footnote ¹⁰

Arguably, the possibility that Greece should again deliberately object to FYROM's membership to IOs (including NATO itself) is largely mitigated by the care with which the Court made clear the scope of the exceptions to the corresponding prohibition. The ICJ's detailed construction of the ‘safeguard clause’ in Article 11(1) and of Article 22 makes it relatively unlikely that Greece will invoke them in the same way it did in these proceedings. The Court considered, to use the words of Article 30(b) of the ILC articles on State Responsibility, that Greece was not obliged ‘to offer appropriate assurances and guarantees of non-repetition’ since the ‘circumstances [did not] so require’.Footnote ¹¹

Judge ad hoc Vukas held, in his declaration, that specific circumstances did indeed exist with respect to the EU, pursuant to Article 11(2). On his view, therefore, Greece did have a positive obligation to support FYROM's economic development in connection to the EU, which exceeds the mere duty ‘not to object’ under Article 11(1), and should have been adequately safeguarded by the Court prospectively.Footnote ¹²

E. Unprecedented Reference to the CJEU

On the issue of Greece's interpretation of Article 22, the Court noted the breadth of Greece's original contention that its rights and duties under prior agreements take precedence over its obligation not to object to admission by FYROM to IOs within the terms of Article 11(1). Such an interpretation of Article 22 would, if accepted, vitiate that obligation—as Greece could normally be expected to have a ‘right’ under prior agreements with third states to express a view on membership decisions.

The Court said that, considering that the parties did not intend Article 22 to render meaningless the first clause of Article 11(1), it was unable to accept the ‘broad interpretation’ originally advanced by Greece (Paragraph 109). Here the Court found support in comparative law, as it pointed out that the Court of Justice of the European Union had rejected such an argument too:

It is apposite here to say a few words on the use of comparative law by the ICJ.Footnote ¹⁴ President Gilbert Guillaume has pointed out that ‘[t]o begin with, the International Court of Justice … exclusively cited its own judgments and advisory opinions’Footnote ¹⁵ but not decisions of other courts and tribunals. Thus, for example, in Chorzów Factory Footnote ¹⁶ the Permanent Court of International Justice did not cite the Spanish Zone of Morocco arbitration,Footnote ¹⁷ when drawing on Judge Max Huber's ruling in that case in which he famously characterized international responsibility as being the corollary of a right and entailing the duty to make reparations.Footnote ¹⁸ Subsequently, in the Nottebohm Case (Preliminary Objection), the Court not only relied on, but explicitly cited the Alabama Claims of the Geneva Tribunal of 1871–72,Footnote ¹⁹ as having established the principle according to which tribunals have comp étence–compétence:

The Court later, in Continental Shelf (Tunisia/Libyan Arab Jamahriya),Footnote ²¹ explicitly relied on and cited the arbitral award in Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic Footnote ²² by finding that ‘so substantial a feature as the Hurd Deep was not attributed such significance in the Franco–British Arbitration of 1977 concerning the Delimitation of the Continental Shelf’.Footnote ²³ Since 1990, the Court has regularly cited arbitral decisions—particularly in cases bearing on delimitation.Footnote ²⁴ Notably, these are not just instances of citation of jurisprudence as facts, as was the case in Navigational and Related Rights, where the International Court cited the judgment of 30 September 1916 of the Central American Court of Justice, as a part of the factual background of the case;Footnote ²⁵ these are citations that corroborate a judicial finding. In the early cases it was the Permanent Court of Arbitration and Arbitral Tribunals that were cited. More recently, for example in the Wall,Footnote ²⁶Genocide,Footnote ²⁷ and Diallo Footnote ²⁸ cases, the ICJ has also cited other international bodies such as the International Criminal Tribunal for the former Yugoslavia, the UN Human Rights Committee, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the European Court of Human Rights.

There might have been, in the first decades of the Permanent and International Courts’ jurisprudence, a reticence towards relying on, and citing the jurisprudence of permanent international tribunals, as opposed to arbitral tribunals. Subsequently, in the words of President Guillaume, a spirit reigned according to which the International Court ‘always abstained itself from the smallest reference to the rationales employed by the regional jurisdictions’.Footnote ²⁹ Now, with the reference also to the CJEU, this reluctance is once and for all consigned to history.

This is perhaps not least because individuals such as President Guillaume are no longer on the Court. Not only is the knowledge of EU law among the members of the Court second to none, with Judges Abraham and Gaja as natural ringleaders; similarly the knowledge of the case-law of other international tribunals is outstanding, with a former president of the Inter-American Court and a former Judge on the Special Court for Sierra Leone among the members. Against this background, it is only natural that the Court should open up its argument and explicitly cite also regional courts when it relies on their jurisprudence.

It has been convincingly argued by Mads Andenas that, by not shying away from explicit citation of decisions when it relies on the solutions found by other tribunals, the Court is not undermining its own role—which seems to be the main thrust of the misgivings brought out by commentators such as President Guillaume—but that this is rather an example of ‘the centre reasserting itself’.Footnote ³⁰ It is by engaging the different regimes of international law, and by explicitly citing its sources, that the International Court may assert itself not only as the principal judicial organ of the United Nations but also as the principal judicial arbiter of general international law.

F. The exception of non-performance

As intimated above Greece claimed that FYROM had violated the IA prior to the events relating to the Bucharest Summit.Footnote ³¹ In Greece's view, these violations justified its recourse to the Accord's partial suspension, alternatively under Article 60 of the VCLT,Footnote ³² as a lawful counter-measure under the ILC articles or pursuant to the exception of non-performance, whereby inadimpleti contractus non est adimplendum (performance is not due to the party who has defaulted on a contract). The Court rejected these arguments, noting that Greece had not proved any of FYROM's alleged breaches, except for a minor one.Footnote ³³ Accordingly, the wrongfulness of Greece's conduct was not precluded under any of the three legal constructions invoked, all premised on the existence of some previous violation of the Accord (paragraphs 161, 163, 164).

Lacking the prerequisites for its application, the Court deemed it ‘unnecessary … to determine whether [the exceptio] forms part of contemporary international law’, to the disappointment of Judges Simma and Bennouna, both of whom devoted a separate opinion to this issue. Indeed Greece argued that the exceptio qualifies as a general principle of international law under Article 38(1)(c) of the Court's Statute, and based one branch of its defence on this principle. This view was forcefully advocated by Judge Anzilotti more than 70 years before the Bucharest Summit:

Unfortunately for Greece, since 1937 the use of, or reference to, this exception has been very scant in international proceedings, and its under-theorization justifies doubts as to its very existence as an autonomous general principle. As argued below, however, its irrelevance in the case might be demonstrated as a matter of non-application, quite apart from the thorny question of its status.

The exceptio non adimpleti contractus is a principle of contract law, typical of civil law systems, governing the regime of the mutual obligations between the parties to one contract. It confers on a party, who is at the same time debitor and creditor in the framework of the same agreement, the faculty to paralyse the other party's request of performance, in light of the latter's previous non-performance. It is a remedy aimed at ensuring that the reciprocity of the obligations—the contractual συνάλλαγμα—is preserved not only when both parties honour their commitments, but also when one of them in fact does not. Grotius, after noting that ‘servanda[ ] … fide[s] etiam perfidis’,Footnote ³⁵ carves out an exception whereby the strict connection between the mutual obligations of the same instrument excuses the aggrieved party who refuses to perform.Footnote ³⁶

In order to assess whether it applies ‘in international relations also’ one must ascertain whether reciprocity in the case of non-performance is as desirable a guideline in the field of treaty obligations as in that of contractual commitments.Footnote ³⁷ Firstly it appears that in the world of international obligations there is a strongly felt need for stability, as well as an aversion for unfettered unilateral reactions. In other words the principle of pacta sunt servanda might prevail over the right of one party to resort to self-help. As the ILC observed: ‘a broad view of the exceptio may produce escalating non-compliance, negating for practical purposes the continuing effect of the obligation.’Footnote ³⁸

Crucially general principles apply when there is a gap, a lacuna in the fabric of international law.Footnote ³⁹ The exceptio governs the powers of one party facing another party's default on his duties. In the operative part, the principle entitles him to withhold performance, in response to the other party's wrongdoing. The factual scenario engaging the application of the principle, therefore, is non-performance inscribed in a framework of reciprocal obligations.

Article 60(1) of the Vienna Convention regulates the case of unilateral suspension of a bilateral treaty, justifying it only if it follows a material breach. The ILC Articles also govern cases of breach of international obligations, in Articles 22 and 49–53, providing that the creditor is entitled—subject to certain conditions—to adopt countermeasures, which are lawful even if they correspond, in abstract, to wrongful acts.

It thus seems that the existing norms on the operation of treaty obligations and State responsibility—two connected but distinct regimes, as the Court has clarifiedFootnote ⁴⁰—regulate precisely the matter covered by the exceptio (the authorization of wrongful acts to preserve the fairness in the relationship between the parties). In other words there seems to be no gap that the principle, were it proven to exist, could fill; the customary rules of State responsibility and the Vienna Convention operate as leges speciales in the respective areas will do the trick.Footnote ⁴¹ The Court could have simply rejected Greece's invocation of the principle on these grounds.Footnote ⁴²