ARTIFICIAL INTERNATIONAL DISPUTE431

The dispute or the difference over the name of Republic of Macedonia, as

noted in the official terminology, have been burdening the Macedonian-Greek relations
for over 15 years. As a result of the Greek reluctance to the use of the name Republic of
Macedonia by the newly established independent state in the beginning of the 1990s,
the difference over the name was created and later on treated as a public legal dispute
which is settled through the mechanism of good offices (de facto mediation) laid down
in the Security Council Resolution 817 from 1993, established within the UN.
From an international public law point of view, the difference over the name of
Republic of Macedonia arises as bilateral dispute (between Macedonia and Greece) to be
settled in the UN, with potential practical consequences for third states within the
multilateral United Nations Forum and other international institutions. In this view, the
Resolution 817 from 1993 provides a provisional reference modus of the state as
former Yugoslav Republic of Macedonia, as temporary designation for purposes
within the UN pending a final settlement of the dispute, which was soon after adopted
by other international institutions including the Council of Europe and EU. However,
apart from this effective regime for these international institutions (and other as well),
and having in mind the bilateral character of the dispute, third states were legally free to
unilaterally recognize the state by its constitutional name, therefore up until now more
than hundred states have recognized Republic of Macedonia by this name, such as the
Russian Federation, China and USA permanent members of the UN Security
Council.432
The aforecited international (public legal dispute) involving the difference over
the name of Republic of Macedonia has caused significant attention during the 15-year
period from international jurists resulting in extensive literature. Despite this, the dispute
has another more important dimension which it appears that it is neglected by the
professional public. Created by the states, the difference over the name of Republic of
Macedonia is reflected on individuals as well private entities in general, in terms of the
right of the people from Republic of Macedonia to use the name in the relations with
other people. Can people from Republic of Macedonia use this name (of their own free
431

The author of this text is PhD Saso Georgievski associate professor at the Faculty of Law Iustinianus
Primus, at Ss. Cyril and Methodius University of Skopje.
432

In addition, member-states of EU, such as France, United Kingdom, Switzerland etc., regardless of the
absence of formal recognition of Republic of Macedonia, have developed a practice of bilateral
communication with Republic of Macedonia by its constitutional name. Namely, the Russian Federation
was among the first states which recognized the state by its constitutional name. On the other hand, the
regime established in the Interim Accord in 1995 (further elaborated in the Memorandum of practical
measures in 1995) is valid in the relations between Macedonia and Greece; in particular article 5 thereof
according to which both parties reserve all of their rights in the relations pending the final settlement of the
international dispute.

will when they are in a foreign state) if a person and/or a state disputes the exercise of
their rights?
During this short discussion, an attempt is made to answer the very dilemma, in
the course of legal analysis, related to the question of exercising the right of private
entities to use the name Republic of Macedonia hereafter private aspects of the
dispute over the name of Republic of Macedonia.
We will look into two proposed situations:
a)
a situation in which the state acts as a subject of private-public relation, in
the form of de iure gestionis; and
b)
a situation in which an individual from Republic of Macedonia acts as a
physical entity. Notwithstanding the moral arguments which might be revealed in this
sense, we will look for the answer of the previous question by invoking legal rules, not
necessarily associated to international public law, the international private law, or to the
basic rules that regulate the human rights as part of international law and internal legal
orders of the states in which the person from Republic of Macedonia appears as a subject.

The use of the name Macedonia in a commercial dispute

Let us assume that in a private legal dispute, in which one party is Republic of
Macedonia, the other (private) party disputes the right of the state to be reffered to by this
name. Or, that in the procedure Republic of Macedonia disputes any reference other the
constitutional name of the state and requests the parties and the Court to use only the
name Republic of Macedonia. Such issue could be brought before the court of a foreign
state and/or (more likely) before trade arbitration under the jurisdiction different from
Republic of Macedonia (hereafter tribunal) and would have to be incidentally resolved
similar to the previous question in terms of the main question in the dispute.
How and according to what rules would the tribunal resolve this issue and what
are the prospects that the tribunal will be in favor of the use of the constitutional name
in the procedure? This is not just a theoretical question considering that the state is
regularly involved in commercial agreements with foreign partners (including Greek
partners), which in general propose foreign arbitration outside Republic of Macedonia as
means of resolving any contractual disputes.

International public law and international private law keys for

determining the name of Republic of Macedonia?
The list of important dilemmas that might face the foreign tribunal and/or that
might be laid by the disputed parties in relation to the previous question would include
at least the following statements or dilemmas, such as:
- the question is a subject of international dispute and thus it is not to be settled as a
private legal dispute; the applicable rules in this case include only the rules of the
international public law (hereafter IPubL); or,
- contrary to this: the question regarding the name is in this case a private legal
matter, and the applicable rules include only the rules of the international private law
(hereafter IPriL), which refer to the use of the right of Republic of Macedonia;
- if the later is accepted, can the legal order of the Forum (Courts note) in that case

exempt the use of the right acquired in the previous case?

The first statement is most likely to be brought out by the party which obstructs
the use of the name Republic of Macedonia during the procedure before the tribunal. In
addition, this could be supported by the thesis according to which the subject (the name of
a state) can not be settled as a private legal dispute, especially not if there is a public
legal mechanism laid down in the United Nations Security Council Resolution. Since it
is a dispute between two states, it would have to be settled only through the application
of the IPubL and the enforcement of the provisions established in the Interim Accord
between Greece and Macedonia in which such resolution of the dispute without
prejudice to the positions of the contractual states parties is anticipated pending the final
settlement of the dispute.
Although this seems logical, the disadvantage of this argument lays in the fact
that, in this case, Republic of Macedonia acts as a private legal entity, in the form of de
iure gestionis (de iure commercii), regardless of its state character. Therefore, the purpose
and the subject of resolving the question regarding the name of Republic of Macedonia in
a private legal dispute brought before the tribunal would be completely different from the
international mechanism for settlement of dispute, the later intends to end with a final
settlement of the dispute over the name of the state as a public legal entity, in contrast to
the form of private legal dispute in which the only purpose of the tribunal is to determine
the name of the private entity participant in the particular dispute with the aim of
designating the entity in the procedure before the tribunal, and not to settle the dispute
over the name of Republic of Macedonia. The resolution of the question over the name
falls under the disputed states and/or the International Forum (the existing or the next
forum, i.e. the International Court of Justice) established, in political sense, mainly for
this purpose, and/or in accordance with the rules and principles of the IPubL applicable
for the states subjected to this law, hence it is clear that the arbiter in the dispute
involving Republic of Macedonia as private entity would refuse to embark on substantive
settlement of the name of the state by applying the rules of IPubL.433
Having in mind that the tribunal would not deal with the international (public
legal) dispute, then the remaining available alternative for the tribunal would be to
determine the name of the state in the procedure in the exact way as it normally
determines the name of a private entity in a private legal dispute, that is according to the
rules of IPriL.

Collision rules of IPriL and the name of Republic of Macedonia

In the absence of a system of rules for resolving the conflict/collision of laws
agreed by either party, the tribunal would settle this question by applying the Court rules
(lex fori) for resolving the collision of laws and/or in case of an international trade
arbitration on the basis of the law laid down in accordance with the rules for resolving

433

Of course, this is also applicable in case if Republic of Macedonia would insists on such settlement
pending the decision on the name through the application of the rules of IPubL brought by an unbiased
judicial or quasi-judicial instance, which under this proposed logic would serve as additional argument in
the process of the final settlement of the difference over the name with Greece.

the collision of laws which the arbiter/arbiters would deem appropriate, a principle
deeply ingrained in the contemporary international arbitration.434
However, since the matter is about a status question related to one party in the
dispute, the rules for resolving the collision of laws in any way would encompass the
application of the law of Republic of Macedonia, for being closest to the subject of
resolution - the name of the party in question. According to French private law, for
example, the questions associated to the personal status of the party (status personalis),
such as capacity (ability) or the name of the party, are questions subjected to the partys
personal right, which are regulated by the partys right of nationality or the legal entitys
right of principal place of establishment (siege social)435. Such solution is also very
common in other states. Furthermore, it can not represent an obstacle the fact that the law
which determines the name of the legal entity is, in this case, a public law of foreign state
(the constitution of Republic of Macedonia), given that in accordance with the general
principles in reference to collision of laws, the courts and arbitration tribunals in general
regularly acknowledge the effects of the application of foreign public law.436 In case the
question of designation of Republic of Macedonia would appear in a procedure before the
international arbitration, the arbiter would choose a fortiori the law of Republic of
Macedonia as the most suitable system of rules, for being closely related to the subject
of resolution - the name of the disputed party.
In this regard, the designation of the state as Republic of Macedonia seems likely
to be true in a procedure for settlement of private legal dispute by a foreign tribunal, on
the basis of states constitution whose application is referred by the rules of IPriL. Still,
the tribunal might be asked to answer one more question before the application of the
constitution of Republic of Macedonia: the potential exclusion of the application of the
Macedonian law (the constitution) decided on the basis of controlled application of forum
public order (public policy; negative ordre public), which must be decided before it alows
the use of the constitutional name of Republic of Macedonia. In particular, this could be
the case if the procedure is conducted in the state which has recognized Republic of
Macedonia under different name, within the bilateral relations, or at least, which has
established a common bilateral practice to make reference to the state under a name
different from the constitutional, therefore it can be presumably stated that this is contrary
to its ordre public. The previous, however, represents a very weak argument, given that
the public order of the states by definition generally includes basic universal values, i.e.
principles of justice, equity, democracy and so on, making it difficult to fit in the question
over the use of the disputed name of a state like Republic of Macedonia. In this view, it
might be expected that even if the procedure takes place before a tribunal located in a
state which has recognized Republic of Macedonia under different name, it would not
434

For example, article 13.3 of the Rules of the International Chamber of Commerce (ICC Rules, 1975);
article 33 of the Rules of UNCITRAL from 1976; article 28.2 of the UNCITRAL Model Law from 1985,
etc. That kind of development of the contemporary international arbitration led to gradual abandonment of
the former principle of certain application of collision rules of the law of the arbitration.
435

See P. Mayers Droit International Privee, 6 edition; page 332 and 650.
Ibid., page 131. See Resolution of the International Law Institute adopted on the session held in
Wiesbaden in 1975 (The Application of Foreign Public Law, I.D.I., Session of Wiesbaden; 11 August
1975).
436

exclude the application of the law (the constitution) of Republic of Macedonia on the
basis of its divergence from the public order of the same state.
In comparison to the above case, the public order of the states commonly
involves in its domain the value of respecting human rights, which might be utilized
when in the procedure before a foreign court the citizens of Republic of Macedonia are
being imposed on to use different name from the constitutional name for designation of
their state. In this direction, we would include later on in the text another private or
personal aspect of the difference over the name of the state, but this time in view of
the rights of the citizens of Republic of Macedonia.

The use of the name Republic of Macedonia personal right

of the citizen
If the citizen of Republic of Macedonia is to be asked, the usual reaction in terms
of the name dispute raised on a level of interstate dispute would challenge the law of
the states (or of other) to limit the citizens freedom to choose the name of his own state
or nation, or that the name of the nation or the state is a matter exclusively of the
domain of his personal choice, identity or integrity. This argument is directed towards the
authorities in Republic of Greece as well as the authorities in Republic of Macedonia, and
towards any other state and/or institution involved in the settlement of the difference
over the name of Republic of Macedonia. In other words, the citizens believe that the
question over the name of the state is a personal, private matter, alike the question of their
own identity and integrity, just like they feel about the choice of their name, the name of
their ancestors or descendants, or their gender and lifestyle.
Logically, following the citizens reaction in Republic of Macedonia, it is quite
reasonable that the right of the citizens of Republic of Macedonia to use the name of their
state (and nation) in the relations with other people should be looked for in the corpus of
international rules that respect the basic human rights and freedoms. Similarly to the way
the citizen feel about the question of the name of his state, the right to use the freely
chosen name of the state (and nation) he belongs to could be located in the domain of
rules protecting the private life of people, included in article 8 of the European
Convention on Human Rights (hereafter ECHR), which is very relevant if such right of
the citizens of Republic of Macedonia is disputed particularly by a member-state of
ECHR.
Article 8 of the ECHR provides in addition that everyone has the right to respect
for his private () life, depending on the potential interference of the states laid down
in paragraph 2 of this article. Divided in various interests of the individual that belong to
this protective category, the respect for private life predominantly represents a respect
for personal identity of the individual, which as a fundamental interest includes:
the individuals capacity to determine its own identity to decide and be whatever he
wants. Within the individuals powers are the questions such as the choice of name, the
way of dressing and gender identity. It is not just about the right of identity; the
individual must be free to choose the respect from the state and the way he would
represent himself in front of others (underlined S.G).437
437

D.. Harris, . OBoyle, C. Warbrick; Law of the European Convention on Human Rights,
Butterworths, 1995, page 307 (the note in the quoted text is omitted).

The respect for private life in article 8 of the ECHR is not reduced to a closed
list of protective categories, but its scope is dynamically defined by the European Court
of Human Rights subsequently in every case. However, it goes beyond the protection of
privacy in its meaning implemented in certain domestic systems (United Kingdom,
etc.), therefore, according to some authors, the respect protects the individual against ()
attacks on his physical or mental integrity or his moral or intellectual freedom,
attacking honor and reputation and similar torts, the use of his name, identity or
likeliness (), etc.438 The obligation of the states to provide respect for private life is in
the same time both positive and negative obligation that imposes a duty for the memberstates of ECHR not just to refrain from individuals private life, but also to create
conditions in which the individual can exercise the aspects of this right in his relations
with the state and other people.
In consideration of the aforecited qualifications, the right to choose and use the
determined affiliation to a certain state or nation under established name, like the
question of personal choice, the moral integrity and the individuals identity, quite clearly
can go into the category of private life whose respect is regulated in article 8 of
ECHR. The extensive stipulation of the respect in this article, as well as the fact that, in
practice, the European Court of Human Rights is not restricted by the currently identified
categories of breach of right of private life and/or by the narrowly developed doctrines of
the application of article 8 of ECHR, provides a basis for the belief that the Court might
procure such case under the respect in this article.
In addition, it might be interesting to look into the analogy of the individuals
right to use his name as close aspect of the respect for private life recognized by the
Court in Strasbourg. The European Court, as well as the Commission on Human Rights
during its existence, have explicitly determined that the regulation of personal names falls
under the respect of private and family life. In the same time, the Court has verified the
interest of the states by adopting several decisions, i.e. the decision in the case of Stjerna
versus Finland, with a view to regulate the personal identity of citizens, in this case to
limit the possibility for change of applicants surname for gaining public interest, for
example: in order to ensure precise records of the population and the means of personal
identification and to connect the surname bearer with his family.439 However, in contrast
to the judgment of the Court in this case, it is quite different when the state imposes a name
change on individuals which represents a breach of the right provided in article 8 of ECHR
and it must be justified in accordance with some exemptions included in the second
paragraph of this article.
Such regime for personal identity might be per analogiam applied in relation to
the right to use the name of ones own nation or state, but in this case, the regime is more
interesting in terms of a presumed (although hardly imaginable) case: disputing personal
names of citizens, based on the logic of the Greek dispute over the name of the state of
Republic of Macedonia. Namely, the basic argument against the use of the name of the
state expressed by Republic of Greece states that by using the name Macedonia the
438

F.G. Jacobs, R.C.. White, he European Convention on Human Rights, 2-nd ed.; Claredon
Press, Oxford; 1996, page 173.
439

Stjerna v. Finland, Judgment of 25 Nov. 1994; Series , N. 299-B, paragraph 39 thereof.

See the Burgharz v. Switzerland judgment, Judgment of 22 Feb. 1994; Series , N. 280-B.

state takes over the Greek history, Greek civilization and/or Greek culture (we
would not discuss the substantive justification of this argument). But what if some
personal names of the citizens are in connection with Greek history, culture or
civilization i.e. the names Socrates, Plato or Makedonka that are often names of
Macedonian citizens (not just Macedonian)? Can we consider to be justified the
intervention of a state to impose personal name change in this sense in order to stop the
taking over of Greek history, culture or civilization?
The answer of this hypothetical and improbable question should be looked for in
the second paragraph of article 8 of ECHR, and, of course, it would be negative! For the
reason mentioned before, the measure of the state in the form of imposed personal name
change of the citizens represents breach of private (and family) life and it could be
deemed justified only if interpreted as necessary in a democratic society, and in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others (article 8.2 of ECHR).
Despite the broad space for interpretation at the disposal of the states while
applying the basis for exemption of the breach of article 8 of ECHR, it does not take
much consideration to conclude that the potential measure of imposed personal name
change of the citizens due to protection of alleged historical, societal and cultural
values owned by a nation can not be justified under no basis and thus represent flagrant
disregard of the respect for private (and family) life. Such measure would not pass the
initial request for its democratization, which in the practice of the Court is evaluated in
the course of European consensus or joint understanding on its justification as a
standard established in the enforcement of article 8 (2) of ECHR.
Based on the character, the measure of imposed personal name change of the
citizens in view of keeping someone elses history, culture or civilization would not be
any different from the former forced assimilation practices involving name change of
people carried out by the authorities in time when the individual fortune of the people
was simply a domestic matter of the state and the individuals were servants of the
administrative bodies, something that would be extremely unacceptable and immoral
according to the contemporary social standards of obeying the human rights.
After all, no matter how unlikely this is, the previously supposed situation
implies how absurd is the main argument of Republic of Greece in (in relation to) the
dispute over the name of Republic of Macedonia. On the other hand, if analogously
applied, the same implies as well to lack of justification of the possible invoking article 8
(2) of ECHR by a state as a reason for disrespecting the right of the individual to use the
name of his state or nation, within its jurisdiction, as his individual right of private life.
Key findings
There are various grounds in the domain of the rules for protection of human
rights which can be invoked by the Macedonian citizen in defence of the possible attempt
to impose the use of other name than Republic of Macedonia. This can be justified, for
example, by the use of the right of self-determination exercised as an individual right,
or the right of people to choose freely their ethnic, linguistic and religious affiliation,
which is a distinction of the members of the minorities, that might be analogously applied
also to the right of people to determine themselves their national affiliation. However, the

most appropriate argument to allow the citizen the right to use the name of his state is the
respect for his private right, also being closest to the way he experiences the name of the
state, and that could at least find a subsequent connection with the case if such right is
disputed by another state or person.
In case of insistence on designating other then the constitutional name in a private
legal dispute before a foreign court in which Republic of Macedonia acts as a private
entity, the previously stated can be avoided by invoking rules of IPriL, which normally
would indicate the observance of its constitution. It is important to have this in mind,
among other things, since the practice of concluding certain investment agreements with
foreign partners shows that Republic of Macedonia has accepted designation other than
the constitutional name to serve as its name while being a contracting party, which on its
merits, would mean implicit (unnecessary) renunciation of the name in a private legal
dispute?!
When the difference over the name of Republic of Macedonia is based on a
private or personal relation, including the relation in which the state acts as a private
entity, the rules applicable to determine the designation in case when the use of its name
is disputed point to a unique (and logical) result: the state shall be referred to by its
citizens as provided in the constitution. However, in spite of this, the difference over the
name of Republic of Macedonia remains to be the same from the very beginning: an
artificially designed, international political dispute!