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The Authority of States to Use Names in International Law and the Macedonian Affair: Unilateral Entitlements, Historic Title, and Trademark Analogies

  • ILIAS BANTEKAS

Abstract

The international legal entitlement by which a state constitutionally designates its name, or a province therein, involves a unilateral act. Where, however, another state wishes to choose the same appellation, as is the case with the former Yugoslav Republic of Macedonia (FYROM), the matter can only be resolved by reference to the first user and the maxim prior in tempore potior in jure. The first user must provide evidence of continuous use and of protest in those cases where the same appellation was appropriated by a third state. Under such circumstances the entitlement becomes exclusive, rather than concurrent, because the prior user may be said to possess a sound historic title, such that has been recognized by international judicial bodies to determine acquisition of territory, effective administration, historic bays, and so on. The exclusivity of the entitlement is further reinforced by analogy with general principles derived from the law of trademarks. At a practical level, the application of the international law of geographical indications clearly demonstrates that the designation ‘Macedonia’ cannot be used for a significant number of products originating in FYROM, since the Greek province of Macedonia has for a long time branded and registered such products. This will create insurmountable problems for producers in FYROM when they try to brand their goods under the country's constitutional name. A change of name, particularly through the compromisory use of a compound, would alleviate legal, political, and financial concerns.

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1 The view that the principle of uti possidetis be applied to internationalize former administrative boundaries in the case of the SFRY was adopted by the EC Arbitration Commission on Yugoslavia and subsequently affirmed by the EC member states. See M. Craven, ‘The European Community Arbitration Commission on Yugoslavia’, (1995) 66 BYIL 333, at 335.

2 C. Warbrick, ‘Recognition of States: Part 2’, (1993) 42 ICLQ 433, at 438.

3 Greece imposed an embargo on FYROM on 16 February 1994 on the basis of then Art. 224 of the EC Treaty. The EC Commission subsequently commenced proceedings against Greece before the European Court of Justice (ECJ) on the grounds that the embargo hindered Community trade and distorted competition within the EU. Commission v. Hellenic Republic, Case C-120/94R, [1994] ECR I-3037. The Advocate-General, Mr Jacobs, sided with Greece's invocation of Art. 224 by arguing that ‘where a government and people are fervently convinced that a foreign state is usurping a part of their cultural patrimony and has long-term designs on a part of their national territory, it would be difficult to say that war is such an unlikely hypothesis that the threat of war can be excluded altogether’. The Commission subsequently dropped the case before reaching the merits stage, while Greece concluded an Interim Accord with FYROM on 13 September 1995, infra note 9. See C. Stefanou and H. Xanthaki, A Legal and Political Interpretation of Articles 224 and 225 of the Treaty of Rome: The Former Yugoslav Republic of Macedonia Cases (1997).

4 Initially Greek claims centred on particular provisions of the FYROM constitution, which together with the use of the name ‘Macedonia’, it argued, implied territorial claims against Greece. This was subsequently remedied by the FYROM Assembly on 6 January 1992 with the amendment of the constitution through two constitutional acts which provided that FYROM had no territorial claims against neighbouring countries and no intention of changing its borders, and that it would not interfere in the sovereign or other internal affairs of other states. However, it is the usurpation of the name ‘Macedonia’, with all its cultural and historic attributes, to which Greece was, and is, opposed. See Greek Memorandum to the UN Concerning the Application of FYROM for Admission to the United Nations, UN Doc. A/47/877-S/25158 (25 Jan 1993). See I. Janev, ‘Legal Aspects of the Use of a Provisional Name for Macedonia in the United Nations System’, (1999) 93 AJIL 155, at 159. On the basis of the amendments the EC Arbitration Commission on Yugoslavia stated that ‘the use of the name Macedonia cannot therefore imply any territorial claim against another state’. Opinion No. 6, (1992) 31 ILM 1507, at 1511. This article does not examine the validity of these territorial claims.

5 SC Res. 817 (7 April 1993); GA Res. 47/225 (8 April 1993).

6 Application of FYROM for membership to the United Nations, UN Doc. A/47/876-S/25147, cited and commented on in Janev, supra note 4, at 159; for a similar view see L. Henkin, R. C. Pugh, O. Schachter, and H. Smit, International Law: Cases and Materials (1993), 253 and M. Craven, ‘What's in a Name? The Former Yugoslav Republic and Issues of Statehood’, (1995) 16 Australian Yearbook of International Law 199; nonetheless, while it is true that states are free, under international law, to pursue certain unilateral acts in accordance with their municipal law, particularly in matters of nationality and maritime delimitation, the validity of these acts with respect to other states depends ultimately upon international law. See UK v. Norway (Anglo-Norwegian Fisheries), (1951) ICJ Rep. 116, at 132, and Liechtenstein v. Guatemala (Nottebohm), (1955) ICJ Rep. 4, at 20–1.

7 ICG, ‘Macedonia's Name: Why the Dispute Matters and How to Resolve It’, ICG Balkans Report No. 122, 10 December 2001, 1–2, 12.

8 Ibid., at 16.

9 UN Interim Accord between the Hellenic Republic and the FYROM of 13 September 1995, available at www.hri.org/docs/fyrom/95-27866.html, Art. 7(2)–(3).

10 Bucharest Summit Declaration, Issued by the Heads of State and Government participating in the Meeting of the North Atlantic Council, Press Release (2008)049 (3 April 2008), point 20, available at www.nato.int/docu/pr/2008/p08-049e.html

11 Application of 17 November 2008, FYROM v. Greece, Dispute Concerning the Implementation of Article 11(1) of the Interim Accord of 13 September 1995, available at www.icj-cij.org/docket/files/142/14879.pdf. By a subsequent Order issued on 20 January 2009, the ICJ fixed the time limits for the submission of memorials and counter-memorials.

12 ILC, 7th Report on Unilateral Acts of States, UN Doc. A/CN.4/542 (22 April 2004), 7–43.

13 Ibid., 44–8.

14 Ibid., 48–70.

15 Ibid., 72–8.

16 France v. Turkey (Lotus), (1927) PCIJ Reports, Ser. A, No. 10.

17 Law No. 524 On Administrative Division and Administration of the New Countries, published in Government Gazette of the Hellenic Kingdom, vol. 404(A) of 31 December 1914.

18 A series of executive orders were made by the Governor-General of Macedonia (i.e. the Greek State) from 1914 onwards, a sample of which is contained in Museum of the Macedonian Struggle Foundation (eds.), Macedonia: A Greek Term in Modern Usage (2005), 29–31. Other laws concerning Macedonia were also promulgated in the immediate aftermath of the Second World War, such as Emergency Law No. 208 to Establish the General Administration of Northern Greece, Art. 1 of which encompassed therein ‘the general administrative units of Western Macedonia, Central Macedonia, Eastern Macedonia and Thrace’, published in Government Gazette Vol. 65, 21 March 1945; equally, Law No. 92 on the Reinstatement of the General Administrative Units and Abolition of Government Representatives, Art. 1 of which reinstated the General Administration of Macedonia, published in Government Gazette Vol. 13 of 20 January 1945. During the interwar period the Greek government had established a variety of public institutions that included the name ‘Macedonia’, such as the Agricultural Bank of Macedonia, the Supreme Administration of the Gendarmerie of Macedonia and others.

19 See McGibbon, I. C., ‘Some Observations on the Part of Protest in International Law’, (1953) 30 British Yearbook of International Law 298.

20 Anglo-Norwegian Fisheries, supra note 6, at 131.

21 El Salvador v. Honduras (Land, Island and Maritime Frontier Dispute), (1992) ICJ Rep. 351, 577, para. 364.

22 Anglo-Norwegian Fisheries, supra note 6, at 138; USA v. Mexico (Chamizal arbitration), (1911) 5 AJIL 807.

23 H. Poulton, Who Are the Macedonians? (2000), 171.

24 Greece's record on the protection of its minorities is generally poor. This is true also of its slavophone minority on which it imposed numerous unnecessary and harsh linguistic and other penalties in the mistaken belief that such measures would foster assimilation. Nonetheless, the European Court of Human Rights in Sidiropoulos et al. v. Greece, 4 ECHR (1998) 500, did not attempt to answer the question as to whether a distinct ethnic Macedonian minority should be recognized at a time when the Greek population of northern Greece is already designated as Macedonian. The Court clearly suggested, however, in paras. 37–39 that the intention to dispute ‘the Greek identity of Macedonia and its inhabitants and undermine Greece's territorial integrity’ constitutes a legitimate interference in the right of association (Art. 11 ECHR) with the aim of protecting national security and preventing disorder.

25 The rule on consistent objection is very important in this case, as it would determine whether a state may be estopped of its historical claims. See generally Charney, J. I., ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 British Yearbook of International Law 1. It has been argued that Greece's present opposition to the use of this particular name possibly contradicts its previous attitude when it adopted the 16 December 1991 ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, European Political Cooperation (EPC) Documentation Bulletin No. 91/464, 16 December 1991. Since the adoption of these Guidelines was only intended to formulate a common EC external policy on recognition it cannot be inferred that through its consent Greece tacitly accepted later claims on the issue of the name. See A. Peters, ‘Commission of the European Communities v. Hellenic Republic’, (1995) 89 AJIL 376, at 383.

26 In El Salvador v. Honduras, supra note 21, para. 45, the ICJ confirmed that the term ‘title’ encompasses not only documentary evidence, but also ‘any evidence which may establish the existence of a right, and the actual source of that right’.

27 Y. Z. Blum, Historic Titles in International Law (1965).

28 See Kaikobad, K., ‘Some Observations on the Doctrine of Finality and Continuity of Boundaries’, (1983) 54 British Yearbook of International Law 119, 130–2.

29 I. Brownlie, Principles of Public International Law (2003), 158.

30 (1982) 21 ILM 1245. Even so, Art. 10(6) of UNCLOS, which regulates the delimitation of bays, states that the entirety of Art. 10 does not apply to historic bays.

31 Tunisia v. Libya (Continental Shelf), (1982) ICJ Rep. 18, paras. 98–107; El Salvador v. Honduras, supra note 21, paras. 404 ff.

32 El Salvador v. Honduras, supra note 21.

33 UNCLOS, Art. 15.

34 Anglo-Norwegians Fisheries, supra note 6, at 138.

35 The historic method is extensively used in interstate disputes concerning title to territory. In the Minquiers and Ecrehos case ((1953) ICJ Rep. 47), for example, the ICJ examined the history of the islands as far back as 1066 ad. Ancient historical title was also claimed by Yemen in its case against Eritrea. Eritrea v. Yemen, Boundary Commission Decision (13 April 2002), (2002) 41 ILM 1057.

36 Institute of International, Political and Strategic Studies (eds.), The Macedonian Affair (1997), 7, citing among others the German historian Johann Gustav Droysen.

37 Ibid., citing the French historian Paul Lemerle.

38 Ibid., 8, citing Lord Salisbury who, as British representative at the Congress of Berlin, stated in his address of 19 June 1878 that ‘Macedonia and Thrace are as Greek as Crete’.

39 Parliamentary Papers – Accounts and Papers (PPAP), Vol. 75 (1867), 607.

40 Ibid., Vol. 67 (1861), 512, and Vol. 75 (1867), 618–19.

41 FO Public Records, FO Doc. 195/1849, Shipley to Blunt (Monastir, 31 March 1984), 103–7.

42 V. K. Gounaris, ‘The slavophones of Macedonia’, in K. Tsitselikis and D. Hristopoulos (eds.), The Minority Phenomenon in Greece (1997), 83–4.

43 Treaty between Great Britain, Austria-Hungary, France, Germany, Italy, Russia and Turkey for the Settlement of the Affairs of the East, signed at Berlin on 13 July 1878, contained in A. Oakes and R. B. Mowat (eds.), The Great European Treaties of the Nineteenth Century (1918), 332–60.

44 Preliminary Treaty of Peace between Russia and Turkey, signed at San Stefano on 3 March 1878, in ibid., at 377–90.

45 Available at www.hri.org/docs/fyrom/95-27866.html. In fact, Arts. 46 and 54 of this treaty, which concern the obligation to protect minorities on the territory of Greece and Bulgaria respectively, refer only to linguistic, racial, and religious minorities and not to ethnic minorities. Nor indeed is there any mention of an ethnic Macedonian group in the 1913 Bucharest Peace Treaty between Romania, Montenegro, Serbia, Bulgaria, and Greece, which related to those countries’ borders following the conclusion of the First World War, available at www.mtholyoke.edu/acad/intrel/boshtml/bos149.htm.

46 Unpublished, on file with the author.

47 Gounaris, supra note 42, at 96–7. Despite the subsequent refusal by the Greek parliament to ratify the Politis-Kalfof Protocol, the justified disillusionment of the Greek slavophone population was hard to repair.

48 E. Koufos, The Macedonian Question: The Politics of Mutation (1987), 3–4. Tito's intentions in this regard are generally undisputed.

49 S. Fish, Is There a Text in the Class? The Authority of Interpretative Communities (1982); I. Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’, (2003) 14 EJIL 437, at 444.

50 The first president of FYROM, Kiro Gligorov, stated that ‘We are Slavs who came to this area in the sixth century . . . we are not descendants of the ancient Macedonians.’ Foreign Information Service Daily Report, Eastern Europe, 26 February 1992, 35; statements to the same effect were printed in the Toronto Star, 15 March 1992.

51 See ICG Report, supra note 7, 12–15.

52 This option of ‘New Macedonia’ has reportedly surfaced unofficially following the last round of negotiations between the two countries in February 2008, but no official source has confirmed it. See P. Karajkov, ‘Macedonia Name Dispute Enters Critical Phase’, 15 April 2008, available at www.newropeans-magazine.org/content/view/7502/259/.

53 One could also make use of Arts. 22–24 of TRIPS, relating to the protection of geographical indications. These provisions serve to protect indications that identify a good as originating in a particular territory, ‘where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’. As will become evident in the next section of this article, the maintenance of the name ‘Macedonia’ in both Greece and FYROM carries with it significant dangers with regard to the designation of products or services originating in the two countries.

54 See generally Reckitt and Colman Ltd v. Borden Inc, [1990] 1 RPC 344.

55 Paris Convention for the Protection of Industrial Property, Art. 4.

56 See supra note 9 and infra note 68.

57 Under Art. 149 of UNCLOS, all objects of an historic or archaeological nature found on the seabed beneath the high seas shall be preserved for the benefit of mankind, with particular regard paid ‘to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of archaeological or historical origin’. This confirms that the state where such objects are situated exercises exclusive sovereignty over them, whereas, if not situated on that state's territory, the latter may have only sovereign rights of unknown quantity. By analogy to the present case, Art. 148 confirms that a state exercises exclusive jurisdiction over all historic or cultural elements found on its territory.

58 Adopted 16 November1972, repr. (1972) 11 ILM 1358.

59 Arts. 1 and 2.

60 UNCLOS, Art. 137.

61 ILC's Articles on State Responsibility, Art. 1.

62 Ibid., Art. 16.

63 The 1883 Paris Convention for the Protection of Industrial Property (as amended), available at www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html, Arts. 9 and 10, directs member states to seize upon importation all goods bearing ‘direct or indirect false indications of the source of the goods’. Art. 10 bis prohibits indications that are misleading, but does not refer to geographic origin. See S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection I–III (1975), 1579. Thereafter, Art. 4 of the 1891 Madrid Agreement for the Repression of False or Deceptive Indication of Source of Goods (as amended) prohibits member states from treating regional geographic indications of wine as generic terms. The strongest protective measures for geographical indications have, however, come about as a result of Arts. 22–24 of TRIPS, at the insistence of the EC and Switzerland during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). Art. 22(1) of TRIPS simply states that ‘a given quality, reputation or other characteristic of the good is essentially attributable to’ the product's place of origin, which could be either a name or a symbol. There exist two types of protection, one in respect of wines and spirits and a general protection for all other products. A product is not protected if it is not registered as such in the country of origin (Art. 24(9)), as well as where it involves a generic term in a member state (Art. 24(6)). A. Conrad, ‘The Protection of Geographical Indications in the TRIPS Agreement’, (1996) 86 Trademark Reporter 11.

64 E.g. 1910 US–Portugal bilateral agreement, whereby the designations ‘Porto’ and ‘Madeira’ were agreed to be protected in the United States. See Conrad, supra note 63, at 27. The EC has engaged in a tremendous effort to adopt bilateral agreements in order to phase out the generic use of EC member states’ geographical indications. See 1994 EC – Australia on Trade in Wine, OJ 2003 L 336/100.

65 Following its early case law, the ECJ made it clear that geographical origin would be protected only where there was a link between particular characteristics of a product produced there and its geographical origin. As a result it rejected protection in EC Commission v. FRG (Sekt/Weinbrandt), [1975] ECR 181; and in Criminal Proceedings against Karl Prantl (Bocksbeutel), [1984] ECR 1299.

66 EC v. Australia (Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs), (2005) WT/DS290/R; on the same subject matter, EC v. USA, (2005) WT/DS174/R.

67 See Exportur SA v. LOR SA and Confiserie du Tech (Exportur case), [1992] ECR I-5529; Belgium v. Spain (Rioja II), [2000] ECR I-3123; Budejovicky Budvar, Narodni podnik v. Rudolf Ammersin GmbH (American Bud), [2003] ECR I-13617;

68 The first flag of FYROM displayed the Sun of Vergina, an artefact excavated in the ancient Macedonian palace at Pellas, Greece. Following Greek protests and international pressure over appropriation of this symbol, the government of FYROM amended the design, without, however abandoning the Sun.

69 FRG and Denmark v. Commission (Feta II), [2005] ECR I-9115.

70 The ICJ in the Nottebohm case, supra note 6, 20–1, confirmed that although each state is free to determine the conferment of nationality on the basis of its own laws, it is international law that determines whether a state is entitled to exercise related functions, such as diplomatic protection.

71 This is particularly important, since it affects possible land and voting rights which some states grant to persons belonging to the ethnic population of the state. Under Art. 6 of the Greek Citizenship Code (Law No. 2130/1993) persons of Greek descent are not required to have resided in Greece for any period of time in order to apply for citizenship, as is required for other foreign nationals. See Z. Papasiopi-Pasia, The Law of Citizenship (1994, in Greek), 46.

* Professor of International Law, Brunel Law School; Head of International Law & Arbitration, Mourgelas & Associates LLP (Athens). The author wishes to thank Professor Achilleas Skordas, Bristol University, for reading and commenting on an earlier draft. Full responsibility remains with the author.

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