| |
[p. 313]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court,
Having regard to Article 61 of the 1946 Rules of Court,
Having regard to the Application by the Federal Republic of Germany filed in
the Registry of the Court on 5 June 1972, instituting proceedings against
the Republic of Iceland,[p 314]
Having regard to the request for the indication of interim measures of
protection filed by the Federal Republic in the Registry on 21 July 1972,
Having regard to the Order of the Court dated 17 August 1972 by which the
Court indicated interim measures of protection in this case,
Makes the following Order:
1. Having regard to the communication dated 22 June 1973 and filed in the
Registry the same day, in which the Agent for the Applicant referred to
operative paragraph (2) of the Court's Order of 17 August 1972, providing
for review of the matter at the request of either Party, and asked the Court
inter alia to confirm the opinion of the Government of the Federal Republic
of Germany that the Order of 17 August 1972 will continue to be operative
after 15 August 1973;
2. Whereas the Government of Iceland was forthwith notified by telegram of
the communication of 22 June 1973, a copy of which was at the same time
transmitted to it by express air mail;
3. Whereas the Government of Iceland has by a telegram of 2 July 1973
submitted observations on the request by the Agent for the Applicant in his
communication of 22 June 1973, protesting against the continuation of the
measures indicated, maintaining that highly mobile fishing fleets should not
be allowed to inflict a constant threat of deterioration of the fishstocks
and endanger the viability of a one-source economy, and concluding that to
freeze the present dangerous situation might cause irreparable harm to the
interests of the Icelandic nation;
4. Having regard to the Judgment of 2 February 1973 by which the Court found
that it had jurisdiction to entertain the Application filed by the
Government of the Federal Republic on 5 June 1972 and to deal with the
merits of the dispute;
5. Having regard to the Order of 15 February 1973 by which the Court fixed
time-limits for the written proceedings on the merits;
6. Having been informed by the Applicant's communication of 22 June 1973
that negotiations are taking place between the States concerned with a view
to reaching an interim arrangement pending final settlement of the dispute;
7. Whereas the provisional measures indicated by the Court and confirmed by
the present Order do not exclude an interim arrangement which may be agreed
upon by the Governments concerned, based on catch-limitation figures
different from that indicated as a maximum in the Court's Order of 17 August
1972 and on related restrictions concerning areas closed to fishing, number
and type of vessels allowed and forms of control of the agreed provisions;
8. Whereas the Court, pending the final decision, and in the absence of such
interim arrangement, must remain concerned to preserve, by the [p 315]
indication of provisional measures, the rights which may subsequently be
adjudged by the Court to belong respectively to the Parties ;
Accordingly,
The Court,
by 11 votes to 3,
Confirms that the provisional measures indicated in operative paragraph (1)
of the Order of 17 August 1972 should, subject to the power of revocation or
modification conferred on the Court by paragraph 7 of Article 61 of the 1946
Rules, remain operative until the Court has given final judgment in the
case.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twelfth day of July, one thousand nine hundred
and seventy-three, in four copies, one of which will be placed in the
archives of the Court, and the others transmitted respectively to the
Government of the Republic of Iceland, to the Government of the Federal
Republic of Germany and to the Secretary-General of the United Nations for
transmission to the Security Council.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
Judge Ignacio-Pinto makes the following declaration:
I concurred in the Court's Orders of 17 August 1972 granting the United
Kingdom in one case, and the Federal Republic of Germany in the other, the
interim measures of protection they had requested in their dispute with
Iceland; but I am unable to concur in the present Order. I have voted
against it for reasons based on the following considerations:
1. The Court, in confirming the interim measures indicated in the earlier
Order of 17 August 1972, has not, in my view, taken sufficient account of
the circumstances that have arisen since that Order was made.
In my view, bearing in mind Article 61, paragraph 7, of its Rules, the Court
ought first to have ascertained with care whether the new aspects of the
situation did not necessitate either the revocation or, at least, the
modification of the terms of the Order of 17 August 1972. [p 316]
The reason is that, as no-one can be unaware, there have been numerous
clashes in the disputed fishery-zone between Icelandic coastguard vessels
and trawlers flying the British or Federal German flag. Some of these
incidents, such as collision between two vessels or the firing of shells by
Icelandic coastguard vessels, were in my view grave enough to warrant the
exercise by the Court of its right to modify the terms of its original
decision.
2. Furthermore, these incidents, in my judgment, constitute so many flagrant
violations on either side of the operative part of the Orders of 17 August
1972. The measures should therefore be reviewed, and others indicated
concerning inter alia the presence of warships.
It is true that the present Order is made "subject to the power of
revocation or modification" conferred on the Court by Article 61, paragraph
7, of its Rules, but the renewal of the interim measures indicated on 17
August 1972 until the Court has given final judgment in the case is fraught
with risk, given the prevailing tension between the disputants. If other,
much graver incidents were to occur before final judgment was given, the
Court would be open to criticism for failure to exercise vigilance.
Such are the considerations which precluded me from joining the majority of
the Court in voting for the present Order.
Judges Gros and Petren append dissenting opinions to the Order of the Court.
(Initialled) M.L.
(Initialled) S.A.
[p317]
Dissenting Opinion of Judge Gros
[Translation]
As the Court's Order in the case of the Federal Republic of Germany v.
Iceland is virtually a replica of the Order of the same date in United
Kingdom v. Iceland, I feel it would be gratuitous for me to repeat the
reasons, for my dissent, which are the same.
I would only add that, in the case of the Federal Republic of Germany, it is
even more obvious that the Court should have examined the situation before
proceeding to a decision, for the request addressed to the Court on 22 June
1973 contained three paragraphs of submissions which went farther than a
mere request that the interim measures indicated by the Court on 17 August
be confirmed. That same letter from the Agent of the Federal Republic of
Germany describes the situation with precision, particularly in paragraphs
4, 5 and 6 (and Annex A, which gives a list of incidents), thus providing
the necessary bases for the Court to examine the prevailing circumstances.
Paragraph 5 points out how force has been used against vessels of the
Federal Republic of Germany, and at the end of paragraph 6 the Applicant
submits that the acts directed against the vessels of the Federal Republic
of Germany have aggravated the dispute.
These indications are the equivalent of those found in the United Kingdom
White Book (Cmnd. 5341, June 1973) and in the letter addressed on 29 May
1973 to the Security Council by the Permanent Delegation of the United
Kingdom (S/10936).
The present Order of the Court, in paragraph 3, takes the Icelandic
Government's telegram of 2 July 1973 as a reply to the Federal Republic's
request, even though the text only refers to the United Kindom; there is
thus no direct reply, but it would not be straining probability to assume
that Iceland's protest also applies to the continuance of the interim
measures indicated by the Order of 17 August 1972 in its dispute with the
Federal Republic of Germany.
It appears to me that the situation as described in the letter of 22 June
1973 from the Agent of the Federal Republic would have warranted an
examination by the Court of the prevailing circumstances, with the
assistance of the Applicant, on the basis of Article 41 of the Statute and
Article 61 of the Rules, as well as of the question of the time-limit for
the further procedure, as I argued in my dissenting opinion appended to the
Order made today in the United Kingdom case.
(Signed) Andre Gros.
[p318]
Dissenting Opinion of Judge Petren
[Translation]
Having voted against the Order, I append this dissenting opinion thereto.
There is an obvious parallelism between the present case and that also
concerning Fisheries Jurisdiction brought against Iceland by the United
Kingdom of Great Britain and Northern Ireland, a case in which the Court has
similarly indicated interim measures of protection. To the Order made today
in that other case, whereby the Court maintains its indication of interim
measures, I have appended a dissenting opinion giving my reasons for
considering that the question of interim measures ought to be re-examined in
the light of the prevailing situation. Given the link between the interim
measures in both cases, I find that the same conclusion must be drawn in the
present case.
However, such re-examination of the question of interim measures would, in
accordance with Article 61, paragraph 8, of the 1946 Rules, have required
the Court to invite the Parties to present their observations on the
subject. As the majority opposed this course, I have voted against the
present Order.
(Signed) Sture Petren. |
|
