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II. INTERNATIONAL COURT OF JUSTICE, APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA V GREECE) JUDGMENT OF 5 DECEMBER 20111

Published online by Cambridge University Press:  17 August 2012

Filippo Fontanelli
Affiliation:
University of Surrey, filippo.fontanelli@gmail.com
Eirik Bjorge
Affiliation:
Corpus Christi College, Oxford, eirik.bjorge@ccc.ox.ac.uk

Abstract

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Type
Current Developments: International Courts And Tribunals
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

2 This source is a temporary arrangement in force pending the solution of a dispute, intended to be replaced subsequently. As far as other matters than the dispute at issue are concerned, it is tantamount to a treaty. See for a discussion Reisman, WM, ‘Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions’ (2002) 3 VandJTransnatlL 738ffGoogle Scholar.

3 Monetary Gold removed from Rome in 1953 (Preliminary Question), Judgment, ICJ Reports 1954, 19 at p 32.

4 On the requisite of effective application, see Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, Judgment, ICJ Reports 1963, 34.

5 See sections C and E.

6 Quoting Aegean Sea Continental Shelf (Greece v Turkey), Judgment, ICJ Reports 1978, 12, para 29; and Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment, ICJ Reports 1980, 20, para 37.

7 See the discussion in Crema, L, La prassi successiva tra interpretaziona e modificazione dei trattati (forthcoming 2013)Google Scholar.

8 See section F.

9 Paragraph 168, citing the case Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, ICJ Reports 2009, 267, para 150.

10 See Council Decision 2008/212/EC on the principles, priorities and conditions contained in the Accession Partnership with the former Yugoslav Republic of Macedonia, OJL 80 of 19 March 2008.

11 On the ‘rather exceptional character’ of a similar remedy, see Report of the International Law Commission on the Work of its Fifty-Third Session, UN GAOR, 53rd Session, Supplement No 10, at 222.

12 Judge ad hoc Vukas's Declaration, para 5–6.

13 See also Case 812/79 Burgoa [1980] ECR 2787, para 8; Case C–84/98 Commission v Portugal [2000] ECR I–5215, para 53; Case C–216/01 Budĕjovický Budvar [2003] ECR I–13617, paras 144–5. The provision at issue in the ECJ cases had been what is today art 352 of the Treaty on the Functioning of the European Union (TFUE)—previously art 234 of the Treaty Establishing the European Economic Community (EEC) and then art 307 of the Treaty Establishing the European Community (TEC).

14 See M Andenas & D Fairgrieve, ‘Intent on Making Mischief: Seven Ways of Using Comparative Law’, in PG Monateri (ed), Methods of Comparative Law (Elgar 2012) 25–60.

15 Guillaume, G, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 Journal of International Dispute Settlement 19.CrossRefGoogle Scholar

16 Case Concerning the Factory at Chorzów (Claim for Indemnity) PCIJ Rep Series A No 17, 47; see Shelton, D, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ (2002) 96 AJIL 835.CrossRefGoogle Scholar

17 British Claims in the Spanish Zone of Morocco (Spain v UK) 2 RIAA 641 (1925).

18 It is worth noting that the Court's reticence in this example could be due more to modesty than anything else; the President at that time was the selfsame Max Huber as had been the arbitrator in Spanish Zone of Morocco.

19 See the analysis of the Alabama claims in these pages by Bingham, T, ‘The Alabama Claims Arbitration’ (2005) 50 ICLQ 1CrossRefGoogle Scholar.

20 Nottebohm (Preliminary Objection), Jugdment, ICJ Reports 1953, 11, 119.

21 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, 18.

22 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK v France) XVIII RIAA 3 (1977–78).

23 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, 18, para 66.

24 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment, ICJ Reports 1992, 351, para 390–1; Maritime Delimitation and Territorial Question between Qatar and Bahrain, Merits, Judgment, ICJ Reports 2001, 40, paras 100–17; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, ICJ Reports 2002, 625, para 135; Land and Maritime Boundary between Cameroon and Nigeria (Equatorial Guinea intervening), Judgment, ICJ. Reports 2002, 303, para 222. See Guillaume (n 14) 19.

25 Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, ICJ Reports 2009, 267, para 22.

26 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 13 paras 109–12; this was reiterated in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168, paras 216–17.

27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ Reports 2007, 9, paras 88 and 198.

28 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Judgment 30 November 2010, paras 66–8. See the analysis in these pages by Andenas, M, ‘Case Concerning Ahmadou Sadio Diallo’ (2011) 60 ICLQ 810CrossRefGoogle Scholar; see also E Bjorge's comment in (2011) 105 AJIL 534.

29 Guillaume (n 14) 19–20.

n 14

30 M Andenas, ‘The Centre Reasserting Itself: From Fragmentation to Transformation of International Law’ in M Derlén & J Lindblom (eds), Liber Amicorum Pär Hallström (Iustus 2012) 11–29; M Andenas, ‘Jurisdiction, Procedure and the Transformation of International Law: From Nottebohm to Diallo in the ICJ’ University of Cambridge Faculty of Law Research Paper No 53/2011 (http://ssrn.com/abstract=1972918); Andenas (n 27).

n 27

31 Greece lamented FYROM's failure to conduct the name negotiations in good faith (art 5), as well as its interference in Greece's internal affairs (art 5(2)), its tolerance of hostile activities performed by State entities and the use of the symbol of the Sun of Vergina and of other cultural symbols belonging to Greek cultural heritage (art 7(1), (2), and (3)(i)(a)).

32 Governing the termination or suspension of the operation of a treaty as a consequence of its breach.

33 ie the use of the Sun of Vergina on the uniforms of a regiment of FYROM's army, which was disbanded in 2004.

34 PCIJ, Case of Diversion of Water from Meuse, 28 June 1937, Ser A/B no 70, Diss Op Judge Anzilotti, p 50, para 211.

35 ie ‘faith must be kept even with the disloyal.’ See H Grotius, De Jure Belli ac Pacis, bk III, c XIX, 13.

36 ibid 14: ‘in one and the same treaty all the clauses appear to be connected with each other, in the form of conditions, expressing the intention of one party to keep his promise, insofar as the other shall do the same.’

ibid 14

37 On the possibility to apply private law principles to international law obligations, see H Lauterpacht, ‘Private Law Sources and Analogies of International Law’, in E Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht (CUP, 1975) 206.

38 See paras 314–29 of the Second Report on State Responsibility by the ILC, Doc A/CN4/498/Add 2.

39 Conclusions of the Study Group on the Fragmentation of International Law, (A/61/10), Yearbook of the ILC, 2006, vol. II, Part Two, 19–20.

40 Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7, paras 47–8. See also art 73 VCLT.

41 Under art 60 VCLT, the materiality of the breach is a threshold, implying that suspension (or termination) is simply not allowed for less than material breaches. Crucially, the subject matter of art 60 is only the faculty to suspend (or terminate) the treaty. Art 42(2) of the VCLT clearly states that suspension and termination are not permitted, except when authorized by the Convention itself. Accordingly, there is no gap in correspondence of minor violations either.

42 See Fontanelli, F, ‘The Invocation of the Exception of Non-Performance, as Case-Study on the Role and Application of General Principles of International Law of Contractual Origin’ (2012) 1 Cambridge Journal of International and Comparative Law 119.CrossRefGoogle Scholar

44 See article of Greek newspaper Το Βήμα, 11 March 2012 <http://www.tovima.gr/politics/article/?aid=447949> quoted in FYROM newspaper Дневник a day after (<http://www.dnevnik.com.mk/default.asp?ItemID=BA4A51B38C1AA2419A1BB79CC0BFA939>).

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II. INTERNATIONAL COURT OF JUSTICE, APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA V GREECE) JUDGMENT OF 5 DECEMBER 20111
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II. INTERNATIONAL COURT OF JUSTICE, APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA V GREECE) JUDGMENT OF 5 DECEMBER 20111
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II. INTERNATIONAL COURT OF JUSTICE, APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA V GREECE) JUDGMENT OF 5 DECEMBER 20111
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