2. Conceptualizing the legal entitlement to a name: unilateral acts and protests

States claim rights and prerogatives chiefly from the primary sources of international law – that is, treaties and custom. These contain rights that are directly conferred on the state entities concerned and, depending on participation in the treaty or customary rule, rights conferred may be global, regional, or bilateral. Equally, depending on the scope of the right, this could be narrow, wide, qualified, or other. Whether through treaty or custom, the fundamental criterion for the conferral of rights is consent, in terms of both conferral and acceptance. States can, however, also accrue rights to themselves on the basis of unilateral action. This is possible under strict circumstances, and in every case unilateral acts and declarations can produce legal effects only where they genuinely represent the will of the particular state. Such unilateral acts comprise behaviour on the basis of which states assume obligations (such as promises),Footnote ¹² acts by which a state waives a right or a legal claim,Footnote ¹³ acts by which a state reaffirms a right or a legal claim (such as recognition),Footnote ¹⁴ and silence and estoppel as principles modifying some state acts.Footnote ¹⁵ It is within the realm of unilateral acts, therefore, that the right of a country to lay claim to a name must necessarily fall. At this point we should also distinguish between three very different propositions or questions. (i) The first concerns claims to the name as a result of a legitimate entitlement, or opposing counterclaim, stemming from a unilateral act. This is fundamentally a legal question. (ii) The second proposition relates to the relevance of historic claims by either of the disputing entities and the possible outcome were one claim significantly to outweigh the other. Although prima facie this is merely a historical proposition, if international law were somehow to give weight, between two competing claims, to the one with the greatest reliance on historical title, it follows that this is also a legal question. (iii) Finally, even if the first two questions were resolved in favour of Greece – that is, the country that is opposed to the ‘appropriation’ and use of the name ‘Macedonia’ by FYROM – the existence of FYROM as a sovereign state entity is not legally affected. Equally, recognition of this country under the name ‘Macedonia’ by other states produces legal effects as to the name between the various states concerned, irrespective of the outcomes in questions (i) and (ii) above.

Jurisprudence suggests that international judicial bodies have resorted to two standards in order to ascertain whether the existence of a particular claim is compliant with international law. The Permanent Court of International Justice (PCIJ) contended that a state may validly lay claim to a particular type of jurisdiction (and hence to a legal entitlement) where no other rule of international law is opposed to it.Footnote ¹⁶ The opposite test is self-evident. Although the Lotus judgment was rightly criticized on numerous grounds, its proposition is sound and logical, otherwise no action would ever be taken internationally until such time as a large number of states decided either to enter into a treaty or otherwise mutually to act in a consistent and uniform manner in order to produce a customary rule. Unilateral action is therefore welcome and permissible, provided that it does not conflict with an existing rule of international law. In the present case, two legal impediments preclude the use by FYROM of the name ‘Macedonia’ and relevant symbols. The first concerns the official use of the name and symbols by Greece prior to their appropriation by the FYROM authorities, while the second impediment relates to the fact that Greece has always protested against the use of the name ‘Macedonia’ during the republic's tenure as a federated republic of the SFRY and later on as an independent state. The Lotus test necessarily implies that a unilateral claim will fail only where an existing counterclaim or rule is of a legal rather than of a moral quality and texture. A moral claim could never trump a legal claim, except in those exceptionally rare circumstances where to do otherwise would contravene all notions of justice – although it is doubtful that there exists universal agreement on this point. Consequently, Greece's claim of prior use must satisfy the requirements pertaining to a legal claim; that is, it must be an act producing legal effects. Although it is true that Greece's official designation is the Hellenic Republic and thus the name ‘Macedonia’ does not feature in it, according to its constitution it is split into several administrative regions, one of which is Macedonia. Following the Balkan Wars of 1912–13 and the assumption of sovereignty over a large part of the geographical region of Macedonia that formerly belonged to the Ottoman Empire, the Greek government immediately adopted Law No. 524 in 1914,Footnote ¹⁷ Article 1 of which stated,

Given that this Greek normative designation, as well as a multitude of others,Footnote ¹⁸ far precedes the post-Second World War Constitution of the SFRY, Greece officially made use of the name well before its neighbouring entities, even though this entitlement was also available to them at that time. One could, however, argue that a domestic law is capable of producing only internal, as opposed to external or international, legal effects and does not therefore fall within the Lotus rule, whereas the use of the name by FYROM relates to this country's international relations and is therefore the only relevant unilateral act of usage producing international legal effects. This position is untenable because domestic laws are no less purely domestic acts than are declarations made by government entities, or speeches given by prime ministers and ministers before their national parliaments. To the extent that such documents or actions are intended by their authors to, and do in fact, produce legal effects in the international sphere, such instruments are international in nature and binding upon their authors. Domestic laws offer evidence, in any event, for ascertaining state practice in particular areas of law. It is clear, therefore, that in its international relations with third states, Greece had through its domestic laws unilaterally laid primary claim to the use of the name ‘Macedonia’. The fact that such designation referred only to a province, rather than to the country as a whole, does not limit other unilateral claims only as to provinces, since the use of the name to designate an entire country, as is the case with FYROM, creates legal effects for FYROM which conflict with Greece's pre-existing legal entitlement.

Greek protests over the use of the contested name by its neighbour constitute an additionally persuasive legal argument and a good example of a unilateral act producing legal effects.Footnote ¹⁹ A protest is a negative act, in that it purports not to set a new paradigm, but simply to negate the existence of a claim made by another state. It is a formal act of objection by which the protesting state declares its intent not to be bound by an act of another state, and/or an intent not to recognize or acquiesce in the legal validity of such an act. The ICJ has consistently held that for a protest to be successful (i) it must immediately follow the act against which the protest is lodged;Footnote ²⁰ (ii) the act or actions that constitute the protest must historically accompany the contested unilateral act;Footnote ²¹ (iii) the protest must be consistent and uninterrupted;Footnote ²² and (iv) the intent of the protesting state must be to prevent the emergence or recognition of a legal entitlement by another state. In the case at hand, it is only one party, namely Greece, that is claiming the existence of an uninterrupted historic title that stems from its domestic law arrangements. Given that at the time the laws of the modern Greek state, following the conclusion of the First World War, incorporated the province of Macedonia into Greek territory, ‘Macedonia’ existed neither as an independent state entity nor as a constitutionally recognized region within the then Kingdom of the Serbs, Croats, and Slovenes (the Kingdom), it follows that the first historic title claimant is Greece. There is no record of the Kingdom or of Bulgaria ever protesting against Greece's designation of its northern region with the name Macedonia. Equally, when the post-Second World War constitution of the SFRY named its southernmost province Macedonia in order to consolidate the plethora of ethnic groups inhabiting that region, Greece protested against this action and at the same time took some domestic steps that clearly demonstrated its objection to the use of the name for any legal purpose. Thus Greece has consistently refused to recognize the so-called ethnic Macedonian minority in Greece.Footnote ²³ It is not that Greece refuses to recognize the distinct characteristics of this group, particularly its use of a Slavic dialect; on the contrary, the Greek state does not accept the group's designation as Macedonians because that would conflict with its constitutional – not to mention historical – tradition whereby it has already designated the characterization of ‘Macedonian’ to its Greek population living in the province of Macedonia.Footnote ²⁴ Greece has refused to recognize this language as a distinct Macedonian language for the same reasons, as will be demonstrated in the following section.

Having analysed the validity and legal nature of unilateral acts and their actors’ claims concerning the production of legal effects, we have demonstrated that Greece was the first of the two contesting entities to use the name Macedonia in order to designate as such a distinct part of its territory. The prior in tempore potior in jure maxim therefore justifies the first-in-time user's exclusive use of the name and its protest against any other entity usurping it. It is equally evident that Greece's protests against the use of the name within the SFRY (and later on when the breakaway republic became known as FYROM), which included both oral statements and positive action, satisfy the aforementioned criteria giving legal credence and effect to the protests. Greece's protests against the contested appellation from the time this name was introduced in the SFRY and later when FYROM became a sovereign state can probably also be described as persistent objections.Footnote ²⁵ Let us now examine the legal relevance, if any, of legal claims arising out of historic title.

3. The historic title claim

During the course of the twentieth century many an opportunity arose for states to argue that in particular instances they had a legal entitlement as a result of some historic or original title.Footnote ²⁶ Litigation over the existence of such a title concerned mainly rights to land territory or waters, historic bays, and others. In attempting to discern the legal nature of historic titles, it has been suggested that one should not be guided by private law analogies such as estoppel or prescription, but instead rely on state acquiescence or consent. As such, historic rights constitute a particular type of custom which deviates from what would normally be the applicable rule were it not for the lapse of time and the maxim of quieta non movere.Footnote ²⁷ Indeed, in this sense the customary rule that comes into being between the interested entities involves a bilateral or trilateral custom, which is the case for historic bays or title to territory. It is undeniable, however, that estoppel, or the lack thereof, plays a significant part in the formation of such a customary rule, because in the circumstances at hand it operates either to denote or to remove consent. In any event, the fact remains that in many parts of the world the consolidation of land boundaries through ancient or historic traditional title remains paramount.Footnote ²⁸ The same is not necessarily true with regard to historic bays.Footnote ²⁹ It should be noted, however, that the reason why historic title to bays is disputed is because the matter is resolved to a significant degree by the 1958 Convention on the Territorial Sea and by the 1982 UN Convention on the Law of the Sea (UNCLOS).Footnote ³⁰ Equally, although historic title to bays is not disputed per se, the historical evidence required to prove its existence, coupled with the usual requirements of customary law, has prevented the ICJ from adopting a uniform rule applicable in all relevant cases. As a result, the ICJ has made it clear that claims to historic titles over bays are subject to ad hoc legal regimes determined by their particular circumstances,Footnote ³¹ which may, as in the Gulf of Fonseca case, turn out to be a pluri-state historic bay subject to a particular species of threefold sovereignty.Footnote ³² Despite the limited application of historic titles due to the detailed regulation of UNCLOS, the Convention itself is not blind to the fact that some facets relating to the law of the sea are still best regulated by reference not to the general rule established each time by UNCLOS, but instead by historic title, such as that regarding the delimitation of the territorial sea between states with opposite or adjacent coastlines.Footnote ³³ A particular, but not markedly different, variant of historic title is the so-called historical consolidation of title. Its contemporary origins lie in the ICJ's judgment delivered in the Anglo-Norwegian Fisheries case, according to which the Norwegian use of straight baselines since 1869, which itself had received general toleration, was ‘the basis of an historical consolidation which would make it enforceable against all States’.Footnote ³⁴

Ascertaining the origin and ownership of specific ‘cultural elements’ undoubtedly requires a historical examination of facts, something which we have demonstrated is hardly new in interstate litigation.Footnote ³⁵ Historic title is of twofold significance in the current context. First, one should examine the practice of the disputing states themselves from the moment the Macedonian region came into their hands. The crucial period in this regard is 1913, at which time the region was ceded to Greece, Bulgaria, and Serbia following the defeat of the Ottoman armed forces. The relevant position since 1913 of FYROM's predecessor, the Kingdom of Serbs, Croats, and Slovenes – and Bulgaria, where this is territorially relevant – is equally important. The period from 1913 to the present day will provide evidence as to the legality of unilateral entitlement claims on the basis of the prior in tempore potior in jure rule, as well as the existence of counterclaims on the basis of protest. The period prior to 1913 is also equally important because, much like ‘usage’ in the case of historic bays, although the region was not in the hands of either of the contesting states, the treatment of the region as Greek or otherwise by the Ottomans or other empires before them helps to clarify the contemporary arguments of the parties. In the present case it is undisputed that the inhabitants of Macedonia were an ancient Greek tribe who spoke one of the oldest forms of Greek, which had affinities with the Aeolian, Arcado-Cypriot, and Mycenean dialects. The most renowned of these ancient Macedonians, King Philip of Macedon and his son Alexander the Great, acted, not as a distinct and non-Greek tribal people, but as a pan-Hellenic movement with the aim of uniting all the Greek city states.Footnote ³⁶ The fact that the ancient Macedonians were self-identified as Greeks and viewed as such by other Greek city states is attested by ancient historians, such as Herodotus and Strabo, as well as by engravings in tombs, as epigraphs, and on coins, among others, excavated in Macedonia, all of which were written in Greek. Strong Greek presence in the geographical area of Macedonia continued even after the appearance of Slavs and Bulgars in the sixth and seventh centuries ad.Footnote ³⁷

Following the collapse of Ottoman rule in the Balkans and subsequent fragmentation, no mention was made of a ‘Macedonian’ people and no such claims were made in an ethnic context.Footnote ³⁸ The British were monitoring the region and their consul in the 1860s reported that the slavophone population were designated as Bulgarians.Footnote ³⁹ It must be understood that at the time the former subjects of the Ottoman Empire did not determine their identity on the basis of ethnicity, but primarily on grounds of religion and language. Given that all Christians were subject to the authority of the Ecumenical Patriarch in Constantinople, which was the universal beacon of Greek language and orthodoxy, the Greek authorities complacently believed that slavophone Macedonians were equally happy with this arrangement, particularly since the impoverished slavophone rural populations bore the burden of financial demands from local bishops subordinate to the Ecumenical Patriarch.Footnote ⁴⁰ The new Bulgarian state capitalized on this dissatisfaction and in 1870 legalized the status of the Bulgarian Exarchate Church, and thus offered a new alternative to the slavophones of the region with a view to cultivating a Bulgarian national consciousness. In 1891 the British Foreign Office conducted a survey of the linguistic and ethnic composition of the region of Western Macedonia, making no mention of a distinct Macedonian ethnicity, but instead pointing out that some slavophones had indeed began to assert a Bulgarian ethnic identity.Footnote ⁴¹ It is telling that not even the principal Macedonian slavophone paramilitary organization, the EMEO, asserted the existence of a distinct Macedonian ethnic group or social class.Footnote ⁴² This is only natural, since neither the 1878 Treaty of Berlin,Footnote ⁴³ nor the 1878 Treaty of San Stefano,Footnote ⁴⁴ which it revoked, made any reference to such an ethnic group. This lack of reference to a Macedonian ethnicity, or of claims thereto, continued even in the aftermath of the First World War in the context of bilateral population transfer treaties, particularly the 1919 Neuilly Treaty between the Allied and Associated Powers and Bulgaria,Footnote ⁴⁵ nor was there any such mention in the reports of any government or non-government entities. In 1924 Greece and Bulgaria adopted a bilateral protocol (the so-called Politis-Kalfof Protocol), by which Greece acknowledged that the slavophones of Western Macedonia constituted a Bulgarian minority.Footnote ⁴⁶ This was an altogether foolish decision, given that many slavophones in the region had by that time openly professed a Greek ethnic identity and had taken part in the Balkan wars against Bulgaria. Serbia took advantage of the turmoil within the Greek slavophone Macedonian community, requesting from Greece its recognition as a Serbian, rather than a Bulgarian, minority.Footnote ⁴⁷ Until the rise of Tito in Yugoslavia no mention was ever made of ‘Macedonians’ as a distinct ethnic group. In fact Tito did not believe in the existence of a non-Greek Macedonian identity, but had no alternative but to concoct one or risk ethnic tensions in the southernmost region of his country.Footnote ⁴⁸

It is thus clear that the name ‘Macedonia’ has, since antiquity, been employed to designate a geographic location and not a distinct ethnic or national group as such. This conclusion is also confirmed, under the weight of historic evidence, through the interpretative communities theory, which articulates the notion that within an institutional setting the various actors share common assumptions and beliefs (interpretative community), such that the meaning of a text or of a concept is constrained by providing the assumptions and understanding relating to the practice at hand.Footnote ⁴⁹ In the present case, it is evident that the international community between 1860 and 1940 had not conceived, nor was it a recipient of claims concerning, the existence of a distinct Macedonian ethnicity.

The former Yugoslav Republic of Macedonia is composed of a variety of ethnic groups: Slavs, Albanians, Vlachs, Greeks, and others. These multi-ethnic populations with a plethora of languages and dialects do not come within the historic meaning identified with the term ‘Macedonian’, except through their geographical inclusion in the greater region of Macedonia. The modern state of FYROM, therefore, does not constitute an extension of ancient Macedonian history, whether in terms of language or ethnicity.Footnote ⁵⁰ On the sole basis, nonetheless, that it does occupy part of the wider geographical region of Macedonia, it may be argued that the use of the name ‘Macedonia’ by FYROM is permissible, but only insofar as this is used to designate its geographical location. For reasons already explained in our analysis of historic title, the name ‘Macedonia’ cannot be used to designate the ethnicity or language of the people of FYROM, given that the term ‘Macedonia’ had never in the past been used to designate a distinct ethnic group. Equally, on account of Greece's use of the term ‘Macedonia’ to define constitutionally part of its territory, and given its unopposed historic title in this regard, FYROM cannot reasonably expect that it may employ this particular designation as the name of the country on incidental geographical grounds. As will be explained in the next section, FYROM can expect, at best, that the term ‘Macedonia’ may be employed, but only where this is qualified in order to avoid confusion between the two entities and their various ethnic, linguistic, and other traditions. Nonetheless, this is a matter for negotiation and is by no means an automatic entitlement. Several suggestions were proffered in the past as suitable for this purpose, such as ‘Slavo-Macedonia’, ‘Vardar-Macedonia’, ‘Northern Macedonia’,Footnote ⁵¹ and, more recently, ‘New Macedonia’,Footnote ⁵² among others.

4. The legal nature of names and symbols and the trademark analogy

One issue that has not been discussed thus far concerns the legal nature of the disputed name and symbols. More precisely, do they constitute tangible assets in the sense of real or immovable property, do they resemble financial instruments (such as bonds and securities), or do they instead perform the functions of intangible property in the same way as copyright or trademarks? The first two seem clearly to be too far remote from the object and purpose of the term ‘Macedonia’ and the way it is used by the two countries, as well as the meaning and feelings it conveys in the peoples of the two neighbouring states. At the same time, however, it is not possible wholly to transplant the general principles of copyright and trademark law to resolve this legal dispute because of the essentially private law and individualistic – in terms of creators – outlook of intellectual property. Therefore, in order to make use of a coherent methodological analogy from the realm of intellectual property (IP) law, one must necessarily employ only such law that satisfies the following criteria: (i) that the said law be susceptible to an analogy whereby the object, idea, or trademark or sign can be seen as belonging to a collectivity under a particular legal personality (i.e. a state), having, moreover, come to it through historic consequence or succession, or on the basis of geographic occurrence; (ii) that the trademark under consideration reflect a value, whether financial or other, to the wider group or persons that claim a legal entitlement; and, most importantly, (iii) that the registration (in any prescribed manner) of the trademark provide the holder with an exclusive right.

Article 15 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Convention defines as a protectable trademark:

From the perspective of the current discussion, it is evident that a trademark – in this case the appellation ‘Macedonia’ and the ancient Macedonian artefacts used by FYROM as national symbols – must distinguish a good, service, or product from other goods, services, or products falling within the same category. Given that the name ‘Macedonia’ and the symbols are employed by both contesting nations for the same purposes, it follows that the dual use of the same ‘trademark’ for the same purpose cannot possibly distinguish the two purposes. It is, therefore, only reasonable that Article 16(1) of TRIPS confers upon the owner of a registered trademark the exclusive right to

The historical title belonging to Greece, as already explained, would make Greece the first and exclusive user of the name and symbols. An interesting and viable analogy is warranted in this connection between the need for registration in IP law in order for a trademark to be protected and the requirement in international law that historic title conform to the criteria for producing a customary rule (i.e. uninterrupted long and consistent use and opinio juris).

Two notable exceptions to this general rule underlie the law of trademarks and it is only fair that their tenets are further exposed. The first exception rightly posits that a natural person cannot be prevented from employing his name in order to designate his personal business, even if this person's trademark is unregistered. Equally, someone with an unregistered trademark may prevent others from registering it, or using it, where that person has been using the particular trademark consistently for a good amount of time and he is moreover well known for his business activities in that line of trade. This concept is known as passing-off.Footnote ⁵⁴ In the case at hand, the analogy to registration of a trademark, as has already been demonstrated, is tantamount to long usage of the name and symbols by Greece, without any protest from FYROM or its predecessors. As a result, the concept of passing-off does not aid the argument of the latter country, as it has never been known in its modern history by that name and the same is true of the symbols, which were excavated on Greek territory. The fact that Greece first employed both the name and the symbols for official purposes reflects the ‘priority right’, which is the highlight of the 1883 Paris Convention for the Protection of Industrial Property, now ratified by 171 states, according to which the filing date of a trademark in a contracting state is considered to be the effective filing date in another contracting state, provided that another application is filed within six months.Footnote ⁵⁵

As regards, specifically, the use as symbols of historic objects belonging to the cultural heritage of another state, such as the ancient Macedonian Sun of Vergina which appeared on the first FYROM flag,Footnote ⁵⁶ it is firmly established that their use for whatever purpose is fully dependent on the consent of the state in whose territory these are lawfully found.Footnote ⁵⁷ This is confirmed by Article 6 of the 1972 UNESCO Convention for the Protection of World Cultural and Natural Heritage.Footnote ⁵⁸ This instrument establishes a legal regime under which historic and artistic works and sites are classified as belonging to a ‘world heritage’.Footnote ⁵⁹ The attributes of this regime, however, are not akin to the concept of ‘common heritage of mankind’ under UNCLOS. The latter does not allow the exercise of sovereignty or sovereign rights over the seabed beneath the high seas, making it clear that this area is reserved for the common use of all states.Footnote ⁶⁰ The concept of ‘world cultural heritage’, on the other hand, under Article 6 of the 1972 Convention, expressly places all historic objects and sites under the exclusive sovereignty of the holding state and, by implication, this includes the right to exhibit them or to deny to other entities the use as symbols of such historic artefacts.

It is hoped that the trademark analogy sheds some light on the particular legal nature of names and symbols in international law and on the enforceability of the priority right, which is consonant with the prior in tempore maxim. The following section focuses on the potential harm that may be caused as a result of appropriating symbols and names of a long-term and prior user, as well as the practical implications such an appropriation might have for the victim state. We shall also employ an additional facet of international trademark law (although the two are formally distinct categories of commercial signs), the concept of geographical indications, to assess whether the protection of such indications is exclusive. This matter, because of its financial implications, best suits a discussion on damage rather than a section dealing with an analogy of historic title as a type of trademark.

5. Damage caused to and the practical implications for the victim state: the protection of geographical indicators paradigm

Thus far we have discussed the legal nature of names and symbols in international law and the possible legal avenues by means of which to determine which state, to the exclusion of other states, may appropriate these. What remains to be analysed is the degree of harm or damage, if any, that may be caused to the state with the exclusive legal entitlement through the use by a state lacking such an entitlement of the contested name and symbols. If we take it for granted that the usurping state therefore commits an unlawful act, this would give rise to state responsibility irrespective of whether damage has been sustained to the title-holder as a result.Footnote ⁶¹ This is so because proof of damage is not a criterion for the determination of such responsibility. All that is required is evidence that the appropriation of the name and symbol does not correspond to an entitlement or an existing lawful obligation.Footnote ⁶²

Given the international community's lack of interest in the matter of legal entitlement and historic title, evinced mainly by the fact that a large number of states have moved to recognize FYROM as ‘Macedonia’, it is significant to explain on what basis Greece suffers actual damage through the appropriation of this appellation by FYROM. The trademark analogy employed earlier in this article suggests that where a state using a particular appellation has done so for a particularly long time and has achieved a reputation associated with such appellation or symbol, it is only logical that a commercial value attaches to this appellation and symbol. Plainly put, every successful and well-known trademark possesses a financial dimension other than any other value that may accrue to it, particularly fame. The same is true of geographical appellations (‘geographical indications’ in trademark terminology), and they are protected under relevant multilateralFootnote ⁶³ and bilateralFootnote ⁶⁴ trademark conventions and have, moreover, been the subject of fierce litigation before the European Court of JusticeFootnote ⁶⁵ and other courts.Footnote ⁶⁶ It is well known that certain geographical appellations are so famous that the particular product that is produced there is known not by its type, but by the name of the city or region itself. A few examples come to mind, such as Champagne and Bordeaux. The European Communities and the European Court of Justice (ECJ) through its judgments have reiterated that one need not demonstrate that a product is endowed with exclusive characteristics as a result of its place of origin, but that the consumer public throughout the world associates the product with a particular geographical location.Footnote ⁶⁷ One can imagine the confusion and economic loss that would be incurred if a new state named Bordeaux emerged in the environs of France and produced wine under the appellation of Bordeaux. If one follows the argument of FYROM and its supporters one would come up with the absurd result that the country Bordeaux would not be compelled to use a compound name, or indeed change its name, in order to distinguish itself from the region of Bordeaux, which itself has through great pains and over time created a successful geographical indication, on which it premises its financial viability. Presumably such a result would be construed on a conclusion that the geographical indication analogy in international relations is a practical and legal fallacy and that states have a unilateral legal entitlement to adopt any appellation and symbols, irrespective of a historic title or continuity, even if to do so would necessarily hurt, at the very least, long-standing commercial interests of other states. It is more than obvious that compelling reasons dictate the rejection of such a unilateral entitlement. The Greek province of Macedonia is in its own right well known for its local delicacies, including cheese and wine, as well as for its tourist industry, a significant portion of which is precisely centred on ancient Macedonia and its symbols.Footnote ⁶⁸ The ECJ in the Feta II case supported Greek claims that feta cheese receives exclusive protection as a product of origin as a result, among others, of consumer association with Greece. More importantly, the Court concurred that in accordance with Greek legislation, the milk used to make the cheese is only that which is produced in a specified number of Greek provinces, among which is Macedonia.Footnote ⁶⁹ These are just few, but illustrative, examples of the confusion and subsequent financial loss that may be caused by the appropriation of a well-known geographical appellation (or the potential thereof) by another state. Given that all products originating from the Greek province of Macedonia would fall under protected geographical indications, it would be devastating for FYROM to be legally precluded from branding its local products under the country's constitutional name. As a matter of state economics, therefore, it makes sense for FYROM to change its name.

Additional damage may potentially be caused in the sphere of international cultural heritage law. An obvious problem arising from the use of the same name by the two states is which of the two, Greece or FYROM, would be entitled to claim the return of historical or cultural objects related to Macedonia. One may suggest that the widespread recognition of FYROM with its constitutional name is a distinct issue from that of cultural heritage claims, on the basis that the purpose of recognition was the preservation of stability, or indeed the recognition of unilateral entitlements over a country's name, whereas the return of cultural treasure should be premised on historic title. The denial of historical evidence, however, in one circumstance and its acceptance in another brings to mind neo-imperialistic connotations that can only help to fuel criticisms that international law is inconsistent. Indeed, if a petitioned state were to return archaeological artefacts to Greece under the premise that they form part of the ancient Macedonian heritage that was exclusively Greek, how would the same petitioned entity explain its refusal to return the same artifacts to FYROM, where it has recognized FYROM as Macedonia, given that this country claims strong historical links with ancient Macedonians? It is obvious that this instance cannot be justified and has the potential to inflame serious international friction. Historical claims, therefore, have a significant bearing on legal entitlements and cannot be divorced from them.

This conflict over the name could also have implications regarding laws granting nationality, as Greece exercises the jus sanguinis principle of nationality, which is based on descent from a national. This would affect people who have lived abroad for a number of generations under a Macedonian upbringing and whose predecessors took for granted their Greek ethnicity, as would be the case with any emigrant from London to the United States who need not emphasize that he or she is thereby from the United Kingdom.Footnote ⁷⁰ People in these particular circumstances are bound to encounter a substantial amount of confusion in identifying their ancestral land, especially where they have taken up the language of their current abode and have no links with the country of origin of their ancestors.Footnote ⁷¹

Finally, it should not be forgotten that the legal arguments referred to in this article are useful before judicial bodies, particularly the International Court of Justice and ad hoc arbitration, were the parties to decide to settle their dispute through judicial means. Equally, these conclusions would empower non-judicial settlement in the event that the appointed entity was empowered to formulate a legal argument and bring it to the attention of the parties. In the absence of any of these mechanisms, it is maybe wishful thinking to expect that the party with the weakest legal arguments would entertain them before any forum. Legal arguments are, nonetheless, simply one part of this particular equation. The international community is right to be concerned with the stability of FYROM, particularly given its diverse ethnic composition. It is also right in helping this country to shape its identity without causing friction in the process, particularly where long-running sentiments of adjacent nations are at stake. It is, however, simplistic and without political, social, or moral merit to argue that the underdog should enjoy an advantage it does not deserve, on the sole basis of its underdog status, while disregarding the claims and sentiments of its opponents. Such policies breed resentment, mistrust, and conflict. The international community needs to sensitize itself to such sentiments and take them into serious consideration. We have seen how during the period of colonization the colonizers exercised a divide-and-rule strategy in carving up various parts of the world and providing a loose or false identity to the local populations, at a time when these populations had never conceived the limitations of boundaries or national identities. The results of these actions, such as the artificial division by the Belgians of the Hutu and the Tutsi in the Tanganyika region and the carving up of the Arab world by the British, to name just two, were catastrophic and their consequences are evident to this day.