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* Associate Professor of International Law, University of Ferrara [
].
1.
Introductory remarks
The range of lawful reactions to non-performance of treaties has been the object of lively discussions; 1 many controversial issues were clarified with the adoption of the 1969 Vienna Convention on the Law of Treaties (henceforth, VCLT) and, later, by the 2001 ILC Draft Articles on State Responsibility for Internationally Wrongful Acts. 2 The latter codification effort, in particular, could benefit from some important developments in international practice, such as the Rainbow Warrior arbitral award 3 and the ICJ judgment in GabÄíkovo-Nagymaros. 4 Nevertheless, not all doubts are dispelled, and a fresh look at the issue is warranted in light of the judgment concerning the Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece), delivered by the International Court of Justice on 5 December 2011.
The case concerned the dispute over the constitutional denomination of the applicant, 'Republic of Macedonia', which is objected to by Greece, since it 'raises an issue of security and stability in the region' 5 by attempting 'to appropriate the Macedonian name' and 'draw[ing] attention to the irredentist ambitions which the use of the name implies'. 6 In the framework of the Interim Accord of 13 September 1995, 7 Greece accepted not to object 'to the application by or the membership of' Macedonia in international organizations and institutions to which it was a member, provided that, in the framework of those organizations or institutions, the latter state would be referred to by the name 'the former Yugoslav Republic of Macedonia' (FYROM). 8 FYROM alleged that this obligation was breached by Greece when it objected to its application to join NATO (notably at the Bucharest summit of 2-4 April 2008); this attitude precluded the applicant from joining the organization, since invitations are addressed to new members by consensus. 9
Among other defences, 10 Greece maintained that its behaviour could not be deemed wrongful, since FYROM had itself failed to comply with the Interim Accord in the first place, in several ways: by refusing to negotiate in good faith over the 'name issue'; 11 by intervening in Greece's internal affairs; 12...