Almost two months have passed since I've duked it out for the former Yugoslav Republic of Macedonia in its (this time virtual) case against Greece at Oxford.
Twenty one days have passed since the International Court of Justice issued its judgment regarding the (this time actual) case concerning the Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece). Needless to say that I took a sneak peek at the operative clause of the judgment and ended up being quite satisfied with the fact that the World Court rendered a favourable judgment in real life as well.
About 16 minutes have passed since I finished reading the judgment and the appended separate opinion, dissenting opinions and declarations. (Finally, I've made time to read the whole judgment in such a festive period!) Well, I can certainly say that I'm still quite satisfied with the outcome and the reasoning adduced by the Court relative to the considerations in fact and law.
However, a particular question that I've asked myself during my preparation for this case at OxIMUN has sadly remained unanswered by the judgment. I've cautiously raised my eyebrow when reading Greece's counter-memorial in which the exceptio non adimpleti contractus was raised as a defence just in case the Court would find that Greece actually breached its treaty obligation enshrined in Article 11(1) of the Interim Accord - to refrain from objecting to the application by or membership of the FYROM to international organisations in which Greece is already a member UNLESS the FYROM shall be referred to DIFFERENTLY THAN the former Yugoslav Republic of Macedonia in said organisation.
Anyway, I wondered if the exceptio, a principle I've become quite fond of in Romanian Civil Law textbooks, can be regarded as a general principle of law recognised by 'civilised nations' and thus an applicable source of law in the case? Better yet, can the exceptio be applied separately from the suspension of a treaty due to a material breach, as codified by Article 60 of the Vienna Convention on the Law of Treaties? Since the exceptio is clearly such a general principle of law since it enjoys wide recognition in almost all civil and common law legal systems, the more appropriate question is the second one.
In short, the exceptio is based on the idea that a contract (In our case, bilateral and multilateral treaties, since we are talking about International Law!) is a negotium juris , a deal which implies the existence of interdependent and reciprocal obligations. (a quid pro quo - think Hannibal Lecter and Clarice, tit for tat, I scratch your back, you scratch mine) If one Party does not fulfill its obligations, the entire system is frustrated and, in response, the other Party has the right not to fulfill its own obligations in turn.
The Court skillfully avoided pronouncing itself on the nature of the exceptio, although it could have done so proprio motu. It could have enforced its role as a sage institution also responsible for emitting state-of-the art evaluations of fascinating legal aspects entailed by a case instead of simply sticking to the case itself. (The Court has done so in the past!) The Court simply found that Greece failed to prove that the FYROM breached other provisions of the Interim Accord and thus, any defence invoked by Greece (the exceptio, countermeasures and suspension due to a material breach) is therefore simply irrelevant.
In comes judge Simma to save the day with his separate opinion! In short, he ruled out the applicability of the exceptio non adimpleti contractus in International Law. Firstly, Article 60 of the Vienna Convention on the Law of Treaties dedicated to suspension due to a material breach of a treaty coupled with Article 65 which outlines the necessary procedural requirements for the invocation of suspension are exhaustive and the exceptio cannot coexist along with such a provision in the law of treaties which is essentially codified customary international law. This is due to the fact that the necessities and complexities of multilateral treaties (after all, we do - in theory - live in a community of independent states) simply cannot be coped with by the exceptio which is more suited to law (particularly Civil Law) developed in foro domestico. Even though Article 60 only covers a reaction to a material breach, the exceptio still can't stand for smaller breaches as it would be absurd that smaller breaches can entail the same consequences as material ones: the de facto inaplicability of a treaty. Such instances are covered by the law of state responsibility. Secondly, the exceptio is not a circumstance precluding wrongfulness and therefore a notion belonging to the law of state responsibility.
As a side note, judge Bennouna did not discount the existence of the exceptio in International Law as, in his view, the principle could be used in strict instances of reciprocal international obligations which cannot be executed one without the other. However, he did discount its applicability in the present case by strictly limiting the ambit of the quid pro quo to Article 11 itself, as, in his interpretation, that article contained an obligation for Greece and the FYROM as well and the FYROM could not be found to be in breach of its end of the Article 11 bargain.