11 September 1976

 

General List No. 62

 
     

international Court of Justice

     
 

Aegean Sea Continental Shelf

 
     

Greece

 

v. 

Turkey

     
     
 

Order

 
     
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BEFORE: President: Jimenez de Arechaga;
Vice-President: Nagendra Singh;
Judges: Forster, Gros, Lachs, Dillard, Morozov, Sir Humphrey Waldock, Ruda, Mosler, Elias, Tarazi
Judge ad hoc: Stassinopoulos
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1976.09.11_continental_shelf.htm
   
Citation: Aegean Sea Continental Shelf (Greece v. Turk.), 1976 I.C.J. 3 (Order of Sept. 11)
 
     
 
 
     
 

[p3]

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 66 of the Rules of Court,

Having regard to the Application by Greece filed in the Registry of the Court on 10 August 1976, instituting proceedings against Turkey in respect of a dispute concerning the delimitation of the continental shelf [p 4] appertaining to Greece and Turkey in the Aegean Sea, and concerning the respective legal rights of those States to explore and exploit the continental shelf of the Aegean;

Makes the following Order:

1. Whereas the above-mentioned Application specifies as basis of jurisdiction Article 17 of the General Act for the Pacific Settlement of International Disputes of 1928, read together with Article 36, paragraph 1, and Article 37 of the Statute of the Court, and a joint communique issued at Brussels on 31 May 1975, and requests the Court to adjudge and declare:

"(i) that the Greek islands [specified in the Application] as part of the territory of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law;
(ii) what is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea;
(iii) that Greece is entitled to exercise over its continental shelf sovereign and exclusive rights for the purpose of researching and exploring it and exploiting its natural resources;
(iv) that Turkey is not entitled to undertake any activities on the Greek continental shelf, whether by exploration, exploitation, research or otherwise, without the consent of Greece;
(v) that the activities of Turkey described [in the Application] constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf or to authorize scientific research respecting the continental shelf;
(vi) that Turkey shall not continue any further activities as described above in subparagraph (iv) within the areas of the continental shelf which the Court shall adjudge appertain to Greece."

2. Having regard to the request dated 10 August 1976 and filed in the Registry the same day, whereby the Government of Greece, relying on Article 33 of the General Act of 1928 for the Pacific Settlement of International Disputes and on Article 41 of the Statute and Article 66 of the Rules of Court, asks the Court to indicate, pending the final decision in the case brought before it by the Application of the same date, the following interim measures of protection:

"Greece . .. requests the Court to direct that the Governments of both Greece and Turkey shall:

(1) unless with the consent of each other and pending the final [p 5] judgment of the Court in this case, refrain from all exploration activity or any scientific research, with respect to the continental shelf areas within which Turkey has granted such licences or permits or adjacent to the Islands, or otherwise in dispute in the present case;

(2) refrain from taking further military measures or actions which may endanger their peaceful relations."

3. Whereas, on the day on which the Application and request for indication of interim measures of protection were filed, a copy of each was handed by the Registrar to the Ambassador of Turkey to the Netherlands, the channel of communication designated by the Government of Turkey generally for communications addressed to that Government by the Court under the Statute and Rules;

4. Whereas, pursuant to Article 40, paragraph 3, of the Statute and Article 37, paragraph 2, of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court;

5. Whereas, pursuant to Article 31, paragraph 3, of the Statute, the Government of Greece chose His Excellency Mr. Michel Stassinopoulos, former President of the Hellenic Republic, former President of the Council of State, to sit as judge ad hoc in the case; and whereas the Government of Turkey has not sought to exercise the right conferred upon it by the said Article to choose a judge ad hoc;

6. Whereas the Governments of Greece and Turkey were informed on 18 August 1976 that the Court would hold public hearings opening on 25 August 1976 to afford the parties the opportunity of presenting their observations on the Greek request for the indication of interim measures of protection;

7. Whereas on 26 August 1976 a letter, dated 25 August 1976, was received in the Registry from the Turkish Ministry of Foreign Affairs enclosing the "Observations of the Turkish Government on the request of the Government of Greece for provisional measures dated 10 August 1976";

8. Whereas in the said observations the Turkish Government submitted that the Application of Greece is premature; that the Court has no jurisdiction to entertain the Application; and that the interim measures of protection requested are not required for the protection of the rights claimed by Greece; whereas, accordingly, the Turkish Government suggested that the Greek request for interim measures be dismissed and, in view of the lack of jurisdiction, asked the Court to remove the case from the list; and whereas no agent has been appointed to represent Turkey before the Court;

9. Whereas at the public hearings held on 25, 26 and 27 August 1976 [p 6] there were present in Court the Agents, counsel and other advisers of the Government of Greece;

10. Having heard the oral observations on the request for interim measures on behalf of the Government of Greece presented by His Excellency Mr. Nicolas Karandreas, Professor Constantine Eustathiades, Professor D. P. O'Connell and Professor Roger Pinto and the replies given on behalf of that Government to a question put by the Court and a question put by one of its Members;

11. Having taken note of the written reply given by the Agent of Greece on 28 August 1976 to a question put to him by a Member of the Court;

12. Having taken note that the final submission of the Government of Greece made at the hearing of 26 August 1976 and filed in the Registry was that "Greece maintains the submissions contained in its request of 10 August 1976 for the indication of interim measures of protection" and thus requested the indication of the measures set out in paragraph 2 above;

13. Noting that the Government of Turkey was not represented at the hearings; and whereas the non-appearance of one of the States concerned cannot by itself constitute an obstacle to the indication of interim measures of protection;

14. Whereas the Governments of Greece and Turkey have been afforded an opportunity of presenting their observations on the request for the indication of interim measures of protection;

*

15. Whereas the rights which Greece submits as entitled to protection by the indication of interim measures are specified in its request of 10 August 1976 as follows:
"(i) The sovereign rights of Greece for the purpose of researching, exploring and exploiting the continental shelf appertaining to Greece and adjacent to the islands of Samothrace, Limnos, Aghios Eustratios, Lesbos, Chios, Psara, Antipsara, Samos, Ikaria, and all the islands of the Dodecanese group (Patmos, Leros, Kalimnos, Kos, Astypalaia, Nisiros, Tilos, Simi, Chalki, Rhodes, Karpathos, etc.), hereinafter called the islands, which rights are exclusive in the sense that if Greece does not undertake research on the continental shelf or explore it or exploit its natural resources, no-one may undertake these activities, or make a claim to the said continental shelf, without the express consent of Greece.
(ii) The right of Greece to the performance by Turkey of its undertakings contained in Article 2, paragraph 4, and Article 33 of the Charter of the United Nations and in Article 33 of the General Act for the Pacific Settlement of International Disputes to [p 7] abstain from all measures likely to react prejudicially upon the execution of any judicial decision given in these proceedings and to abstain from any sort of action whatsoever which may aggravate or extend the present dispute between Greece and Turkey.
(iii) All rights appertaining to Greece under or in consequence of the final decision of the Court in the present proceedings."

16. Whereas in its Application and request for interim measures the Government of Greece alleges, inter alia, that following the granting by Turkey in 1973 of permits to the Turkish State Petroleum Company (TPAO) for exploration for petroleum covering an area which encroached upon the continental shelf claimed by Greece as appertaining to certain Greek islands in the Aegean, there have been diplomatic exchanges and talks in respect of a dispute between Greece and Turkey over certain areas of continental shelf in the Aegean, but no settlement of that dispute had been achieved; that on 13 July 1976 an announcement was made concerning researches which would be undertaken by the Turkish seismic research vessel MTA Sismik I in the Turkish territorial sea and in the high seas, and it was stated by official Turkish sources that the vessel would not be accompanied by warships but that nevertheless all necessary measures would be taken so as to detect immediately any attack against the vessel and to respond instantaneously in case of any such attack; that on 6, 7 and 8 August the MTA Sismik I was observed engaging in seismic exploration of areas of the continental shelf of the Aegean claimed by Greece as appertaining to it; and whereas Greece contends that the activities of the Turkish vessel constitute infringements of the exclusive sovereign rights of Greece to the exploration and exploitation of the continental shelf appertaining to Greece;

17. Whereas Greece claims that the indication of interim measures of protection is justified in the present case on the following grounds:

(i) With respect to the protection of the sovereign rights of exploration and exploitation claimed by Greece, and of the right claimed by Greece in respect of the alleged obligation of Turkey to abstain from all measures which might prejudice the execution of any judicial decision, on the basis that Turkey's grants of exploration licences and exploration activity must tend to anticipate the judgment of the Court, and that breach of the right of a coastal State to exclusivity of knowledge of its continental shelf constitutes irreparable prejudice;
(ii) With respect to the protection of the right claimed by Greece in respect of the alleged obligation of Turkey to abstain from any sort of action which may aggravate or extend the present dispute, on the basis that the activities complained of would, if continued, aggravate the dispute and prejudice the maintenance of friendly relations between the two States; [p 8]

18. Whereas the Government of Turkey, in its observations communicated to the Court on 26 August 1976, contends that the interim measures requested are not required and ought not to be indicated on the grounds, inter alia, that the exploration activities by Turkey complained of cannot be regarded as involving any prejudice to the existence of any rights of Greece over the disputed areas; that even if it were admitted that Turkey's explorations did cause harm to the rights of Greece, there would be no reason why such prejudice could not be compensated or could affect the execution of any judgment the Court might give; and, with reference to the request for an indication by the Court that both parties should "refrain from taking further military measures or actions which may endanger their peaceful relations", that Turkey has no intention of taking the initiative in the use of force;

*

19. Whereas the Greek Government bases its request for interim measures of protection not only on Article 41 of the Statute of the Court but also on Article 33 of the above-mentioned General Act of 1928; whereas however the Turkish Government has communicated to the Court its view that the General Act of 1928 is no longer a treaty in force between Greece and Turkey; and alternatively that, even if it were so in force and applicable, the matters submitted to the Court in the Application fall within the terms of reservation (b) to Greece's instrument of accession to the Act, dated 14 September 1931; and whereas this reservation excludes from the procedures described in the General Act "disputes concerning questions which by international law are solely within the domestic jurisdiction of States, and in particular disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication"; and whereas Turkey accordingly contends that it is entitled to consider the matters comprised in the Application as excluded from the scope of the Act;

20. Whereas Greece asks the Court to consider the said Act as presumptively in force between Greece and Turkey, and maintains that the subject-matter of its Application of 10 August 1976 does not fall within the terms of the said reservation (b) contained in Greece's instrument of accession;

21. Whereas it is not necessary for the Court to reach a final conclusion at this stage of the proceedings on the questions thus raised concerning the application of the 1928 Act as between Greece and Turkey, and it will therefore examine the request for the indication of interim measures only in the context of Article 41 of the Statute; [p 9]

*

22. Whereas the power of the Court to indicate interim measures under Article 41 of the Statute has as its object to preserve the respective rights of either party pending the decision of the Court; and whereas, in the present case, this power relates essentially to the preservation of the rights which are invoked in Greece's Application;

23. Whereas the several claims formulated in the submissions of the Greek Government in the Application are either different aspects or different incidents of its general claim to exclusive sovereign rights of exploration and exploitation in certain areas of the continental shelf of the Aegean Sea; and whereas, therefore, it is essentially the preservation of those alleged rights of exploration and exploitation which concerns the Court in examining the present request for the indication of interim measures of protection;

24. Whereas with respect to those alleged rights Greece requests the Court to direct that the Governments of both Greece and Turkey shall "unless with the consent of each other and pending the final judgment of the Court in this case, refrain from all exploration activity or any scientific research" in certain designated areas of the continental shelf; and whereas, in support of this request, Greece points to the above-mentioned grant by Turkey of exploration licences in respect of the said areas of continental shelf and to seismic exploration activity therein undertaken by or under licence from Turkey;

25. Whereas the power of the Court to indicate interim measures under Article 41 of the Statute presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute injudicial proceedings and that the Court's judgment should not be anticipated by reason of any initiative regarding the matters in issue before the Court;

26. Whereas, in this regard, the Greek Government contends that the concessions granted and the continued seismic exploration undertaken by Turkey in the areas of the continental shelf which are in dispute threaten to prejudice the exclusive sovereign rights claimed by Greece in respect of those areas; and whereas it further contends that Turkey's seismic exploration threatens in particular to destroy the exclusivity of the rights claimed by Greece to acquire information concerning the availability, extent and location of the natural resources of the areas; that the acquisition and dissemination of such information without the consent of Greece prejudices its negotiating position in relation to potential purchasers of exploitation licences, thereby permanently impairing its sovereign rights with respect to the formulation of its national energy policy;

27. Whereas, on the basis of the foregoing considerations, the Greek Government maintains that the continued Turkish seismic exploration in the disputed areas constitutes a threat of irreparable prejudice to the rights claimed by Greece in its Application; that it threatens to prevent the full restoration of those rights to Greece in the event of its claims being upheld by the Court; and that the Court's power to indicate interim measures ought to be exercised when "the parties' rights might not be [p 10] restored in full measure in the event of a judgment if that judgment is anticipated";

28. Whereas the areas of continental shelf in which the activity complained of by Greece took place are ex hypothesi areas which, at the present stage of the proceedings, are to be considered by the Court as areas in dispute, and with respect to which Turkey also claims rights of exploration and exploitation;

29. Whereas, moreover, it is clear that neither concessions unilaterally granted nor exploration activity unilaterally undertaken by either of the interested States with respect to the disputed areas can be creative of new rights or deprive the other State of any rights to which in law it may be entitled; whereas in representations made on 7 February 1974, 24 May 1974, 14 June 1974, 22 August 1974, 21 and 23 July 1976, and 7 and 9 August 1976, the Greek Government has persistently protested against what it considered as Turkey's infringements of its rights in the continental shelf areas in question; whereas in a statement to Radio Ankara on 24 July 1976 the Turkish Foreign Minister recognized that seismic research "cannot establish rights in the areas where this research is carried out"; and whereas the Government of Turkey, in its observations communicated to the Court on 26 August 1976, declared that:

"Exploration by Turkey of the kind of which complaint is made by Greece cannot be regarded as involving any prejudice to the existence of any possible rights of Greece over continental shelf areas in the Aegean Sea. The sovereign rights over the continental shelf (including the exclusive right to exploration) that may exist are not taken away or diminished by exploration."

30. Whereas, according to the information before the Court, the seismic exploration undertaken by Turkey, of which Greece complains, is carried out by a vessel traversing the surface of the high seas and causing small explosions to occur at intervals under water; whereas the purpose of these explosions is to send sound waves through the seabed so as to obtain information regarding the geophysical structure of the earth beneath it; whereas no complaint has been made that this form of seismic exploration involves any risk of physical damage to the seabed or subsoil or to their natural resources ; whereas the continued seismic exploration activities undertaken by Turkey are all of the transitory character just described, and do not involve the establishment of installations on or above the seabed of the continental shelf ; and whereas no suggestion has been made that Turkey has embarked upon any operations involving the actual appropriation or other use of the natural resources of the areas of the continental shelf which are in dispute;

31. Whereas seismic exploration of the natural resources of the continental shelf without the consent of the coastal State might, no doubt, [p 11] raise a question of infringement of the latter's exclusive right of exploration; whereas, accordingly, in the event that the Court should uphold Greece's claims on the merits, Turkey's activity in seismic exploration might then be considered as such an infringement and invoked as a possible cause of prejudice to the exclusive rights of Greece in areas then found to appertain to Greece;

32. Whereas, on the other hand, the possibility of such a prejudice to rights in issue before the Court does not, by itself, suffice to justify recourse to its exceptional power under Article 41 of the Statute to indicate interim measures of protection; whereas, under the express terms of that Article, this power is conferred on the Court only if it considers that circumstances so require in order to preserve the respective rights of either party; and whereas this condition, as already noted, presupposes that the circumstances of the case disclose the risk of an irreparable prejudice to rights in issue in the proceedings;

33. Whereas, in the present instance, the alleged breach by Turkey of the exclusivity of the right claimed by Greece to acquire information concerning the natural resources of areas of continental shelf, if it were established, is one that might be capable of reparation by appropriate means; and whereas it follows that the Court is unable to find in that alleged breach of Greece's rights such a risk of irreparable prejudice to rights in issue before the Court as might require the exercise of its power under Article 41 of the Statute to indicate interim measures for their preservation;

*

34. Whereas the Greek Government, in terms already set out in paragraph 15 (ii) above, also invoked its right to the performance by Turkey of the latter's obligations under Article 2, paragraph 4, and Article 33 of the Charter of the United Nations as a right in respect of which it asks the Court to indicate interim measures of protection; and whereas it specifically requests the Court to direct the Governments of both States to refrain from taking further military measures or actions which may endanger their peaceful relations; whereas, however, the right so invoked is not the subject of any of the several claims submitted to the Court by Greece in its Application; whereas it follows that this request does not fall within the provisions of Article 41 of the Statute;

35. Whereas, at the same time, the Court must observe that the mutual obligations of Greece and Turkey under Article 2, paragraph 4, and Article 33 of the Charter are clearly imperative in their mutual relations, and in particular in regard to their present dispute concerning the continental shelf in the Aegean; [p 12]

36. Whereas, independently of its request regarding the preservation of its rights, Greece requested the Court during the public sittings to indicate interim measures of protection in order to prevent the aggravation or extension of the dispute; whereas, before this request could be entertained, the Court would have to determine whether, under Article 41 of the Statute, the Court has such an independent power to indicate interim measures having that object; whereas, however, for the reasons now to be explained, the Court does not find it necessary to examine this point;

37. Whereas the Court has cognizance of the fact that, simultaneously with the proceedings before it in respect of the request for interim measures of protection, the United Nations Security Council also has been seised of the dispute between Greece and Turkey regarding the Aegean Sea continental shelf; whereas, on 10 August 1976 (the day on which the Application and request for interim measures were filed), the Permanent Representative of Greece to the United Nations wrote to the President of the Security Council requesting an urgent meeting of the Council in view of "recent repeated flagrant violations by Turkey of the sovereign rights of Greece on its continental shelf in the Aegean"; and whereas the Security Council discussed the question at meetings held on 12, 13 and 25 August 1976, with the participation of the representatives of Greece and Turkey;

38. Whereas on 25 August 1976 the Security Council adopted by consensus a resolution (resolution 395 (1976)) by which, inter alia, the Security Council urged the Governments of Greece and Turkey "to do everything in their power to reduce the present tensions in the area so that the negotiating process may be facilitated", called on Greece and Turkey "to resume direct negotiations over their differences", and appealed to them "to do everything within their power to ensure that this results in mutually acceptable solutions";

39. Whereas, in the recitals to the above-mentioned resolution, the Security Council has recalled to the Governments of Greece and Turkey "the principles of the Charter of the United Nations concerning the peaceful settlement of disputes, as well as the various provisions of Chapter VI of the Charter concerning procedures and methods for the peaceful settlement of disputes"; and whereas it has also recalled the need for them "to respect each other's international rights and obligations and to avoid any incident which might lead to the aggravation of the situation and which, consequently, might compromise their efforts towards a peaceful solution";
40. Whereas the Foreign Minister of Greece stated in the Security Council following the adoption of resolution 395 (1976) that he trusted that the resolution would "clear away the obstacles to a resumption of the dialogue [with Turkey] and lead to the solution of the problem of the continental shelf by peaceful means"; and whereas the Foreign Minister of Turkey stated, following the adoption of the resolution, that the paragraph of the resolution calling for a resumption of direct negotiations [p 13] was "fully in accord with the policy that has been consistently pursued by Turkey";

41. Whereas both Greece and Turkey, as Members of the United Nations, have expressly recognized the responsibility of the Security Council for the maintenance of international peace and security; whereas, in the above-mentioned resolution, the Security Council has recalled to them their obligations under the United Nations Charter with respect to the peaceful settlement of disputes, in the terms set out in paragraph 39 above; whereas, furthermore, as the Court has already stated, these obligations are clearly imperative in regard to their present dispute con-cerning the continental shelf in the Aegean; and whereas it is not to be presumed that either State will fail to heed its obligations under the Charter of the United Nations or fail to heed the recommendations of the Security Council addressed to them with respect to their present dispute;

42. Whereas, accordingly, it is not necessary for the Court to decide the question whether Article 41 of the Statute confers upon it the power to indicate interim measures of protection for the sole purpose of preventing the aggravation or extension of a dispute;

43. Whereas, under Article 66, paragraph 5, of the Rules of Court, a decision of the Court not to exercise its power under Article 41 of the Statute to indicate interim measures of protection "shall not prevent the party which has made [a request] from making a fresh request in the same case based on new facts";

*

44. Whereas, in order to pronounce on the present request for interim measures of protection, the Court is not called upon to decide any question of its jurisdiction to entertain the merits of the case; and whereas the decision given in these proceedings in no way prejudges any such question, or any question relating to the merits, and leaves unaffected the rights of the Greek and Turkish Governments to submit arguments in respect of any of these questions;

45. Whereas, having regard to the position taken by the Turkish Government in its observations communicated to the Court on 26 August 1976, that the Court has no jurisdiction to entertain the Greek Application, it is necessary to resolve first of all the question of the Court's jurisdiction with respect to the case;

46. Whereas, having regard to the foregoing, the Court cannot, at the present stage of the proceedings, accede to the request of the Turkish Government, in its observations communicated to the Court on 26 August 1976, that the case be removed from the list,[p 14]

Accordingly,

The Court
Finds, by 12 votes to 1, that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate interim measures of protection;

Decides that the written proceedings shall first be addressed to the question of the jurisdiction of the Court to entertain the dispute;

And reserves the fixing of the time-limits for the said written proceedings, and the subsequent procedure, for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eleventh day of September one thousand nine hundred and seventy-six, in three copies, one of which will be placed in the archives of the Court, and the others transmitted to the Government of Greece and the Government of Turkey, respectively.

(Signed) E. Jimenez de Arechaga,
President.

(Signed) S. Aquarone,
Registrar.

President Jimenez de Arechaga, Vice-President Nagendra Singh and Judges Lachs, Morozov, Ruda, Mosler, Elias and Tarazi append separate opinions to the Order of the Court.

Judge ad hoc STASSINOPOULOS appends a dissenting opinion to the Order of the Court.

(Initialled) E. J. de A.

(Initialled) S. A.

[p 15]

Separate opinion of president Jimenez de Arechaga

I concur in the Order of the Court for the reasons stated therein. I wish, however, to add a few general comments on the question of the jurisdiction of the Court with respect to the merits of the dispute and its relation to the power of the Court under Article 41 of the Statute.

Article 41 constitutes the basis of the Court's power to act with respect to a request for interim measures. It is a provision which has been accepted by all parties to the Statute and in such acceptance lies the element of consent by States to this special form of jurisdiction. It has been described as incidental jurisdiction because it is one which the Court is called upon to exercise as an incident of proceedings already before it. It may be compared from this point of view with the jurisdiction granted by Article 36, paragraph 6, of the Statute, according to which "in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court". Both forms of incidental jurisdiction must normally be exercised before jurisdiction over the merits is finally determined.

The fact that Article 41 is an autonomous grant of jurisdiction to the Court, independent from its jurisdiction over the merits of the dispute, does not signify that the prospects of the Court's jurisdiction with regard to the merits are irrelevant to the granting of interim measures. They are, on the contrary, highly relevant, but they come into play at a different level and at a subsequent stage: not as the basis for the Court's power to act on the request, but as one among the circumstances which the Court has to take into account in deciding whether to grant the interim measures.

The essential object of provisional measures is to ensure that the execution of a future judgment on the merits shall not be frustrated by the actions of one party pendente lite. In cases in which there is no reasonable possibility, prima facie ascertained by the Court, of jurisdiction on the merits, it would be devoid of sense to indicate provisional measures to ensure the execution of a judgment the Court will never render.

But the possibility of jurisdiction over the merits is only one among other relevant circumstances. There are others to be taken into consideration—such as the questions whether provisional measures are necessary to preserve the rights of either party and whether the acts complained of are capable of causing or of threatening irreparable prejudice to the rights invoked. According to general principles of law recognized in municipal systems, and to the well-established jurisprudence of this Court, the essential justification for the impatience of a tribunal in [p 16] granting relief before it has reached a final decision on its competence and on the merits is that the action of one party "pendente lite" causes or threatens a damage to the rights of the other, of such a nature that it would not be possible fully to restore those rights, or remedy the in-fringement thereof, simply by a judgment in its favour. The Court's specific power under Article 41 of the Statute is directed to the preservation of rights "sub-judice" and does not consist in a police power over the maintenance of international peace nor in a general competence to make recommendations relating to peaceful settlement of disputes.

Before interim measures can be granted all relevant circumstances must be present—including the possibility of jurisdiction over the merits. However, to refuse interim measures it suffices for only one of the relevant circumstances to be absent. From this point of view all the circumstances of the case—including that relating to the possibility of jurisdiction over the merits—are placed on the same level: none has a logical priority with respect to another. In view of the wide measure of discretion granted by Article 41, the Court is entirely free to determine in each case which of the relevant circumstances it will examine first.

In the present case the Court has found that interim measures were not required in view of two circumstances: the existence of appropriate means of reparation or satisfaction, with respect to the first Greek complaint, and the action taken by the Security Council, with respect to military actions or steps which might extend or aggravate the dispute. Having reached this conclusion it was not necessary for the Court to make any determination as to the prospects of its jurisdiction with regard to the merits, even on a prima facie basis. The question of jurisdiction over the merits could thus be left entirely unprejudiced, as was done in similar cases by the Permanent Court in the Prince von Pless (P.C.I.J., Series A/B, No. 54, p. 153) and Polish Agrarian Reform (P. C.I.J., Series A/B, No. 58, p. 179) cases and by this Court in the Interhandel (I.C.J. Reports 1957, p. 111) and Trial of Pakistani Prisoners of War (I.C.J. Reports 1973, p. 330) cases.

The question of the Court's jurisdiction thus remains entirely reserved for a future judgment, after giving the parties full opportunity to plead the important and delicate questions of law which have been raised in this respect.

(Signed) E. Jimenez de Arechaga.


[p 17]

Separate opinion of vice-president Nagendra Singh

While subscribing to the Court's Order in this particular case, in which it has declined to exercise its powers under Article 41 of its Statute, I find it necessary to emphasize the primordial importance which the jurisdictional issue would have acquired, had the Court found that the circumstances warranted the indication of interim measures. The necessity of competence has an inescapable role in any legal regime associated with a tribunal's exercise of the extraordinary power of dispensation whereby it may grant interim measures of protection. This would particularly appear to be so when the respondent is not present before the Court but has in a written statement challenged its jurisdiction and has invoked Article 36, paragraph 6, of the Statute, thus creating circumstances envisaged by Article 53. The burden on the Court to satisfy itself about its own competence becomes much more important if in such circumstances it wishes to contemplate the granting of interim measures of protection. The Court must then feel a higher degree of satisfaction as to its own competence than can be derived from the positive but cursory test of "prima facie" jurisdiction or the negative test of "no manifest lack" of jurisdiction. The essence of the matter is that if the Court is taking action affecting the rights of either party, even by way of freezing them, it should do so only after reaching a point of satisfaction in regard to its own competence which comprises a clear and distinct possibility of the Court proceeding to render judgment in the case. The purpose of the entire exercise of protecting the rights of the parties pendente lite is to be able to implement the Court's judgment when it comes. The acid test of the Court's competence, therefore, is that the judgment must be within clear prospect. This positive test of satisfaction as to distinct possibility appears necessary if the Court is to avoid the regrettable prospect of granting interim measures and then finding later that it cannot ever proceed to judgment in the case. Even though there is the admitted factor of urgency attending the request for interim measures, I feel that the Court has nevertheless to spend the time needed to reach that point of satisfaction as to its own prospective competence prior to exercise of powers under Article 41 of its Statute.

So far as this particular case is concerned, the Court has not found the required circumstances to exist which would warrant the exercise of its powers under Article 41. Hence the question of its own competence, at this stage, does not arise as it would have if it had sought to exercise those [p 18] powers. In the latter event it is my assessment that a strict application of the test of the Court's competence in terms of a distinct possibility of jurisdiction, would be necessary and justified.

(Signed) Nagendra Singh.


[p 19]

Separate opinion of judge Lachs

I write this separate opinion, firstly, because I am unable to agree with the Court's treatment of the issue of jurisdiction (para. 44). Not only was the Court's jurisdiction contested by Turkey but the Court was in my view under an obligation to consider the issue proprio motu and make clear its provisional views thereon, notwithstanding the negative answer it felt bound to give the request for interim measures.

Secondly, and this is for me a subject of serious preoccupation, I have some doubts with regard to the manner in which the Court has disposed of that request. Greece applied simultaneously to the Court and the Security Council, thus seeking both legal and political relief. The Court is called upon to pronounce after a period of negotiations. The Order it has made appears after a resolution in which the Security Council has urged Greece and Turkey to "do everything in their power to reduce the present tensions in the area, so that the negotiating process may be facilitated", and called upon the two States "to resume direct negotiations over their differences". Thus further negotiations may now ensue. This is the general background against which the Court has to consider the request, and which lends the case a specific and most unusual character. The time of seisin of the Court is never of its own choice, but lies in the hands of applicants. It sometimes falls in a twilight zone as regards the situations either of fact or of law.

Emphasis has been placed by the Court on the strict interpretation of the wording of the Greek request. But this, to my mind, should have been viewed as just one among several possible responses to the provisions of Article 66, paragraph 1, of the Rules of Court, according to which "the request shall specify. .. the rights to be protected, and the interim measures of which the indication is proposed". In fact, the same Article of the Rules reveals how it is the situation concerning the dispute as a whole with which the Court is expected to concern itself.

In general, it is true, the Court must take a restrictive view of its powers in dealing with a request for interim measures. Such proceedings may not be the best framework for the enunciation by the Court of such judicial opinions as it has been ready to articulate in many a final decision. Yet even if the Court had to reach the present negative decision, I feel that a positive contribution to the solution of the dispute in question was still a possibility.[p 20]

This brings me to a wider issue. The Court does not, to my way of thinking, arrogate any powers excluded by its Statute when, otherwise than by adjudication, it assists, facilitates or contributes to the peaceful settlement of disputes between States, if offered the occasion at any stage of the proceedings.

On one occasion the Permanent Court observed:

".. . the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such dispute between the Parties; .. . consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement" (P.C.I.J., Series A, No. 22, p. 13).

On another occasion, while unable to find on a submission said to lie outside the scope of the proceedings, the Court found it possible to stress at the end of its reasoning the great desirability of a negotiated settlement (P.C.I.J., Series A/B, No. 78, p. 178). A fortiori the present Court, whose Statute is much more intimately bound up with the United Nations Charter than that of its predecessor with the Covenant of the League, should the more readily seize the opportunity of reminding the member States concerned in a dispute referred to it of certain obligations deriving from general international law or flowing from the Charter. In the present instance some of these obligations have been mirrored in the Security Council's resolution of 25 August 1976.

The Court has given due prominence to this resolution in the reasoning of the Order.

There was in my view no statutory bar to its spelling out the legal consequences of the Security Council's resolution and the official statements of the representatives of the two States. The pronouncements of the Council did not dispense the Court, an independent judicial organ, from expressing its own view on the serious situation in the disputed area.

While it would not be proper specifically to advise Greece and Turkey "as to the various courses" they should follow (I.C.J. Reports 1951, p. 83), the Court, acting proprio motu, should, even while not indicating interim measures, have laid greater stress on, in particular, the need for restraint on the part of both States and the possible consequences of any deterioration or extension of the conflict. In going further than it has, the Court, with all the weight of its judicial office, could have made its own constructive, albeit indirect, contribution, helping to pave the way to the friendly resolution of a dangerous dispute. This would have been consonant with a basic role of the Court within the international community.

(Signed) Manfred Lachs.


[p 21]
Separate opinion of judge Morozov

I accepted the operative part of the Order of the Court but I am unable to share the reasoning of the Order.

Reference is made in the Order to Articles 41 and 48 of the Statute, as well as to Article 66 of the Rules of Court, as arguments to prove that the Court allegedly has a right to consider the request for the indication of interim measures of protection before it has considered and settled the question of its jurisdiction.

But these references in reality are based neither on the Statute of the Court nor on its Rules of Procedure.

The key provisions relating to the competence of the Court are those contained in Chapter II of its Statute, and particularly Article 36, paragraph 1, thereof: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." The same principle is embodied in Article 37 of the Statute.

Articles 41 and 48 of the Statute are to be found in Chapter III of the Statute under the title "Procedure". This means that provisions of that Chapter cannot be regarded as something which may be separated from Chapter II of the Statute, so as to have an independent significance, which could cancel out the above-mentioned provisions of Chapter II concerning the competence of the Court.

As has been stated in the Order (para. 8) the Turkish Government "suggested that the Greek request for interim measures be dismissed and, in view of the lack of jurisdiction, asked the Court to remove the case from the list. . ."

After such a request had been made, it was the primary duty of the Court to consider the question of its jurisdiction.
It is not my intention to express a view now, pro or contra, on the question of jurisdiction inasmuch as the question has not been considered or settled by the Court.

It is however important to stress that the Court has no right to consider either the question of appointment of a judge ad hoc under Article 31, paragraph 3, of the Statute, or the question of interim measures of protection, before it has satisfied itself that it has jurisdiction in accordance with Articles 36 and 37 of the Statute.

The reference in the Order to Article 48 adds nothing to the matter, since that Article merely provides for the right of the Court to "make orders for the conduct of the case .. ."; it does not permit avoidance of the key provisions of Articles 36 and 37 of the Statute. [p 22]

The reference to Article 66 of the Rules of Court also cannot be used as an argument to prove that the request for interim measures of protection allegedly has priority over the question of jurisdiction. Article 66 merely establishes that such a request "shall have priority over all other cases", but not over all stages of the case concerned. The provision that "the decision thereon shall be treated as a matter of urgency" means only that at the moment a request for interim measures is made consideration of all other cases should be interrupted.

Thus neither the Statute nor the Rules of Court contain any provisions which provide that the request for interim measures of protection has any priority over the question of jurisdiction.

The precedents afforded by cases in which the Court has sometimes made Orders on the question of interim measures of protection contrary to its Statute and Rules cannot be regarded as having any value in the argument.

I should like to conclude by reference to paragraph 13 of the Order, in which we find: "and whereas the non-appearance of one of the States concerned cannot by itself constitute an obstacle to the indication of interim measures of protection . .."

This conclusion also is not in accordance with the Statute, for two reasons. First: though, if the State concerned could be qualified as a party (which is not so in this case), and does not appear before the Court, or fails to defend its case, the other party may in accordance with Article 53 of the Statute call upon the Court to decide in favour of its claim, yet paragraph 2 of the same Article lays down as a decisive condition that the Court in such a situation must satisfy itself that it has jurisdiction.
Secondly, the filing by one side of an Application cannot of itself create a case, and therefore the State against which the Application is brought could be regarded as a party within the meaning of the Statute only after settlement of the question of the Court's jurisdiction.

(Signed) Platon Morozov.


[p 23]
Separate opinion of judge Ruda

I have voted in favour of the decision of the Court declining to indicate interim measures of protection in the case. Since I have reached the same conclusions, but for different reasons, I feel it is incumbent upon me to explain very briefly what my reasons are.

In my view, the Court cannot decide on a request for interim measures of protection, without having first considered, at least prima facie, the basic question of its own jurisdiction to entertain the merits of the dispute. I fully share the views so well expressed by Sir Hersch Lauterpacht on this point in his separate opinion in the Interhandel case (I.C.J. Reports 1957, pp. 118-119).

Therefore, in this preliminary phase of the proceedings, I have given, in the first place, the fullest possible consideration to the material and arguments submitted by Greece and Turkey. I have not found, prima facie, that the provisions and instruments invoked by the Applicant appear to afford any basis on which the jurisdiction of the Court might be founded.

Of course, this conclusion is reached only on a prima facie and provisional basis and, therefore, does not prejudge in any way any final decision on the jurisdiction of the Court to deal with the merits of the dispute.

(Signed) J. M. Ruda.

[p 24]

Separate Opinion of Judge Mosler

[p27]

Separate opinion of judge Elias

After careful reflection I have reluctantly decided to go along with the majority of the Court in accepting the Order just made, but for reasons other than some of those given in the preambular paragraphs.

The present case is probably unique in that it was the first in which an applicant State brought a simultaneous and parallel action to the Court and to the Security Council asking both for legal and political remedies or reliefs. While this step would seem legally admissible, it clearly has its own problems and implications from which my dilemma has arisen. Without embarking here upon any detailed analysis of the relationship between the Security Council and the Court as co-ordinate principal organs of the United Nations under Article 7 (1) of the United Nations Charter, or the correct interpretation of Article 36 (1) of the Statute of the Court, both organs are competent each in its own sphere to deal with the matter submitted to it and come to its own conclusions thereon. The implications of this will be considered presently.
On the question of jurisdiction to entertain the Greek Application for the request for provisional measures of protection in this case, I accept the majority view that it is not necessary to decide the question for the purpose of indicating provisional measures of protection under Article 41 of the Statute of the Court.

***

My main quarrel with the reason apparently given for the Order is that the Greek Government has failed to establish that it has suffered irreparable damage or harm to the continental shelf which would warrant the indication of interim measures of protection within the meaning of Article 41 (1) of the Statute of the Court, which can indicate such measures only "if it considers that circumstances so require". It does not seem to me that the Court, by appearing to lean more towards "preservation" of rights and less towards possible aggravation of the situation or expansion of the dispute, has maintained sufficient balance between the two elements as laid down in the Court's own jurisprudence.

Prejudice to the rights in question has commonly been claimed to consist in either physical destruction or disappearance of the subject-[p 28] matter of the dispute. It thus appears that the aggravation or expansion of the dispute must relate to a situation or state of fact which may be worsened by act of one or both parties pending the final decision—that is, something done which might frustrate the giving of an effective decision. On the other hand, consideration of the aggravation or extension is sometimes narrowly construed, as has happened in the present case. The argument in the present case seems to be that even if the Applicant has the rights claimed by it, they could be compensated for in cash or kind if the other side should ultimately be found to be in the wrong. This is not a satisfactory state of affairs.

Despite the Geneva Convention on the Continental Shelf of 1958, Article 2 (2) and (3) of which gives exclusive rights to the coastal State, the Turkish Government granted licences of exploration and exploitation, that is, oil concessions, to its national oil company, without the consent of the coastal State. This would appear to be prejudicial to the right of exclusivity claimed by the latter. The obiter dictum sometimes cited from the Legal Status of South-Eastern Greenland case (P.C.I.J., Series A/B, No. 48,1932, p. 268) to the effect that even action calculated to change the legal status of the territory would not in fact have irreparable consequences for which no legal remedy would be available (pp. 284 and 288) must be regarded as limited to the peculiar circumstances of that case, in which the Court found "the state of mind and intentions" in both countries were so "eminently reassuring" that there was no need to indicate interim measures "for the sole purpose of preventing regrettable events and unfortunate incidents". To say the least, in both Greece and Turkey today the state of mind and the intentions are far from "reassuring".

The rights in the continental shelf in the Aegean Sea are not like those which hunting and farming rights connote in the South-Eastern Greenland case. Nor is there a true comparison between the case of groups of individuals inhabiting diverse parts of a sparsely populated continent over 40 years ago and that of two industrialized nations engaged in competitive exploitation of wasting assets like oil in the crowded Aegean Sea. In the latter, the danger of friction and even explosion is real and the resulting damage might be irremediable.

Rather than follow the South-Eastern Greenland formula religiously, it seems to me that a better and more relevant guide in our type of case is to be found in the Electricity Company of Sofia and Bulgaria case (P.C.I.J., Series A/B, No. 79, 1939, pp. 194-199). There the Court declared that Article 41 of the Statute of the Court:

". .. applies the principle universally accepted by international tribunals .. . that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution [p 29] of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute".

***

There is the continuing danger that, in the face of standing armies on opposite coasts, the frequent surveillance of each other's movements by the overflying of aircraft, and the presence of a large fleet of landing vessels on the Turkish coast facing the Greek islands, an armed conflict will break out. It is, therefore, necessary to discourage both sides from maintaining the continuing harassment and infringement of alleged rights until the settlement of the issues that divide them. That is why the Court is, in my view, along the right lines when it emphasizes this point in paragraph 41 of the Order as follows:

"Whereas both Greece and Turkey, as Members of the United Nations, have expressly recognized the responsibility of the Security Council for the maintenance of international peace and security; whereas, in the above-mentioned resolution, the Security Council has recalled to them their obligations under the United Nations Charter with respect to the peaceful settlement of disputes, in the terms set out in paragraph 39 above; whereas, furthermore, as the Court has already stated, these obligations are clearly imperative in regard to their present dispute concerning the continental shelf in the Aegean; and whereas it is not to be presumed that either State will fail to heed its obligations under the Charter of the United Nations or fail to take account of the recommendations of the Security Council addressed to them with respect to their present dispute."

It seems to me that there are substantive as well as procedural questions raised in the consideration of the application of Article 41 of the Statute of the Court which require urgent and serious re-thinking by the Court. There is, for instance, the question of preliminary or incidental jurisdiction; and there is also the concept of the judicial criterion concerning aggravation and extension of a dispute. After all, the General Assembly recommended in its resolution 171 (II) of 14 November 1947:

". . . that it is also of paramount importance that the Court should be utilized to the greatest practicable extent in the progressive development of international law, both in regard to legal issues between States and in regard to constitutional interpretation .. ." (italics added).

***
[p 30]

Finally, the apparent acceptance by the majority of the Court that, once any damage resulting from the exploration and/or exploitation by Turkey is capable of being compensated for in cash or kind, Greece cannot be said to have suffered irreparable damage does not seem to me to be a valid one. It means that the State which has the ability to pay can under this principle commit wrongs against another State with impunity, since it discounts the fact that the injury by itself might be sufficient to cause irreparable harm to the national susceptibilities of the offended State. The rightness or wrongness of the action itself does not seem to matter. This is a principle upon which contemporary international law should frown: might should no longer be right in today's inter-State relations.

Despite some of the reasonings, with which I do not agree, it is important to underline the significance of paragraph 41 of the Order which, as I understand it, spells out as far as possible the substance of the Security Council resolution, which is that both sides should respect each other's rights and do nothing to worsen the situation pending meaningful negotiations and peaceful settlement of the dispute. Since this must be the main objective of the Greek Government's request and since the substance of the Security Council resolution which has thus been incorporated had been accepted as such by the Applicant, the Order has gone far towards achieving the desired result.

The original Greek request, it must be noted, could not in any case have been granted as prayed. Even if the Court were disposed to grant any request, it should have had to be limited to restraining both sides to keep the peace until negotiation and settlement. Although the Order speaks the language of refusal it is nevertheless to be hoped that it will serve the cause of peace.

(Signed) Taslim O.Elias



[p 31]

Separate opinion of judge Tarazi

[Translation]

I voted in favour of the Order adopted by the Court. I think it necessary, however, to express my separate opinion on two essential points which, in my view, are particularly important:

(1) the Court's jurisdiction;

(2) the role of the Court as an organ of the United Nations and its place in the process of peaceful settlement of international disputes.

Jurisdiction of the Court

The jurisdiction which the International Court of Justice possesses in contentious proceedings is not compulsory. It is necessary that States shall have given their prior consent to its being seised. If the respondent does not appear, the Court is under an obligation to ascertain, before any consideration of the merits, whether it is competent to settle the dispute referred to it by the applicant State, in accordance with Article 53 of the Statute.

In the present instance the Court had to consider a request for interim measures of protection, submitted by the Government of Greece. This request, in the eyes of that Government, was intended for the protection of Greece's rights over the continental shelf of the Aegean Sea. The Court was therefore urgently convened by its President, in accordance with the provisions of paragraph 3 of Article 66 of its Rules.

Turkey, the respondent party in the case, has chosen not to respond to the invitation made to it under paragraph 2 of Article 66 of the Rules of Court. Nevertheless the Ministry of Foreign Affairs of Turkey has sent the Registrar of the Court a written communication. That communication raised an objection alleging lack of jurisdiction and called for:

(a) the rejection of the Greek request for the indication of interim measures of protection;

(b) the removal of the case from the Court's list.

There we have two quite separate requests. The first was based on a contention that the interim measures of protection were not required by the situation. The second denied the Court's right to pronounce upon the Application of Greece or even to discuss it.

At this stage of the proceedings, the Court had solely to decide whether [p 32] the interim measures should or should not be granted. Was it entitled to grant them if it did not possess the power to decide the substantive dispute or if, in other words, it lacked jurisdiction? It has been maintained that, so far as concerns the application of the provisions of Article 41 of the Statute of the Court, the text of which governs the question of interim measures, the Court possesses a special competence which is in some way different from its basic, specific jurisdiction as conferred by Article 36 of that Statute.

This is a theory with which I am unable to agree. Without going into the details of the argument, I feel impelled to declare that the Court is competent only by virtue of Article 36 of its Statute. The power conferred upon it by Article 41 to indicate interim measures when appropriate is merely a corollary of its jurisdiction under Article 36, in accordance with the old legal saw that qui magis potest minus potest.

That being so, the situation before the Court was such as to require it to show vigilance in the appraisal of the various elements in the Application, in which Greece had claimed that two diplomatic instruments conferred jurisdiction on the Court: Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, and the joint communique of Brussels of 31 May 1975.

The Court could not, on simple perusal of these two documents, pronounce upon its jurisdiction at the present stage of the proceedings. A more thoroughgoing examination was needed, on account of the complexity and ambiguity of the problems confronting the Court, problems which it could only resolve after written and oral proceedings had taken place in the normal way.

The request that the case be removed from the Court's list could not be acceded to in the present circumstances. According to the consistent jurisprudence of the Court, such removal is decided only in the event that the applicant State does not invoke in support of its Application any legal instrument conferring jurisdiction on the Court but contents itself with leaving the respondent State the possibility of expressing its assent to the proceedings. If, on the other hand, the respondent State responds in the negative, by indicating its refusal to recognize the Court's jurisdiction, the Court orders the case to be removed from its list. Such in my view are the significance and legal scope of the Orders of 12 July 1954 (Treatment in Hungary of Aircraft and Crew of United States of America, I.C.J. Reports 1954, pp. 99 and 103), 14 March 1956 (Aerial Incident of 10 March 1953, I.C.J. Reports 1956, p. 6) and of 16 March 1956 (Antarctica, I.C.J. Reports 1956, pp. 12 and 15).

It is clear that the situation is different in respect of the present case. That is why the Court has not decided to remove it from its list and has reserved its position on the question of its jurisdiction for later consideration. [p 33]

Power and Role of the Court in the United Nations System

I think that the Court was well advised to act as it has. I feel however that particular attention should have been paid to the fact that the proceedings are attended by special circumstances.

At the same time as it requested the Court to indicate interim measures, Greece turned to the Security Council to request it to examine the situation which it had already described in its Application. This was not an example of the simultaneous use of two parallel remedies, inasmuch as the Security Council, unlike the Court, is a political organ. The rule electa una via did not have to be applied.

Now, while the oral proceedings were taking place before the Court, the Security Council adopted "by consensus" the resolution of 25 August 1976 by which it, in the main, recommended the parties to continue their negotiations and address themselves, if appropriate, to the Court. There can be no doubt that this was a situation which created a new element requiring to be taken into consideration in the formulation of the Court's Order.

For if it is true and certain that the Court is an independent and judicial organ, and that neither the General Assembly nor the Security Council are able, without the consent of the interested parties, to withdraw from it any case which has been referred to it, it is no less true that it is an integral part of the United Nations, inasmuch as Article 7 of the Charter provides that it is one of the "principal organs of the United Nations" while Article 92 indicates that its Statute is annexed to and "forms an integral part of" the Charter. Such was not the case with the Court's predecessor. The Covenant of the League of Nations did not provide that the Permanent Court of International Justice should be one of its organs. The Court itself had been set up independently of the elaboration and adoption of the Covenant.

That being so, the present Court, while maintaining its independence, should not fail to take into consideration this basic truth, namely that it is an integral part of the United Nations. The Charter, whose genesis marked a new stage in the course of history, features some essential differences in comparison with the provisions of its predecessor, the Covenant of the League of Nations. Those differences were due to the new situation which States and peoples had to face on account of the consequences of the Second World War and of the developments which preceded or triggered its outbreak.

There is no necessity here to consider these differences in detail. One may content oneself with the affirmation that, by virtue of the Charter, the Security Council bears an essential responsibility for the maintenance of peace and security. The Court, if the circumstances so require, ought to collaborate in the accomplishment of this fundamental mission.

It must be recognized that the Court has indeed applied itself to this [p 34] task. Several of the paragraphs in the reasoning of the Order recall the Security Council resolution. Nevertheless, I would have thought it necessary to mention this resolution in the operative part.

(Signed) Salah El Dine Tarazi



[p 35]

Dissenting opinion of judge Stassinopoulos

[Translation]

To my great regret, I am unable to associate myself with the Order. Exercising therefore the right conferred upon me by Article 57 of the Statute, I venture to indicate the reasons for my dissent.

The request by Greece for the indication of interim measures of protection must be viewed, first of all, from the angle of two indisputable principles of the international law of the sea.

The first principle is that the coastal State exercises over the continental shelf sovereign rights of exploration and exploitation of the natural resources; those rights are exclusive in the sense that none may carry on any research, exploration or exploitation activities without the consent of that coastal State. This principle, crystallized by Article 2 of the 1958 Geneva Convention on the Continental Shelf, was reaffirmed in very clear terms by the Court in its North Sea Continental Shelf Judgment (I.C.J. Reports 1969, p. 22).

The second principle is that islands possess their own continental shelf in the legal sense of that term. Here I venture to recall the basic provision of Article 1 of the 1958 Geneva Convention:

"For the purpose of these articles, the term 'continental shelf is used as referring ... (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands."

The norm-creating character of Articles 1 and 2 of this Convention was repeatedly confirmed by the Court's above-mentioned Judgment on the North Sea Continental Shelf (ibid., pp. 22, 39 and 42).

In my view it is necessary always to bear in mind these two principles, which constitute the law in force, in assessing the merits of the request for the indication of interim measures of protection in the present case.

Now the exercise by Greece of its exclusive sovereign rights over its continental shelf, as determined by the two above-mentioned principles, has been immutable, imperturbable and continuous from all time, and ever since the appearance of the very concept of the continental shelf in the domain of international law. Turkey never protested against that exercise and never claimed any rights whatever over the Greek continental shelf. It was only in 1973 that it suddenly published in its Official Gazette a map showing areas of the Aegean Sea in respect of which Turkey claimed rights. At practically the same time Turkey granted exploration licences in respect of those same areas and began exploration work. That means that Turkey, instead of waiting for the question which it had itself [p 36] raised to be settled by the appropriate means, in accordance with Article 33 of the Charter of the United Nations, attempted to make good its own claims by material acts undertaken with no other title than those claims themselves. This manner of proceeding provides a classic example of taking the law into one's own hands ("voie de fait") and is certainly not sufficient in law to justify describing these areas, which always incontest-ably belonged to Greece, as "areas in dispute" or "contested".

In 1976, the exploration activities carried on by the Turkish vessel Sismik I are part of a large-scale programme which has even been extended since the Court has had to concern itself with the present situation. As a result of those activities, Greece and Turkey have found themselves engaged in military preparations on a considerable scale, and the aggravation of the situation could lead to a very real threat to peace.

Faced with that situation, which has been steadily deteriorating, Greece has filed in the Court an Application with a view to the delimitation of the continental shelf of the Aegean Sea and a request for the indication of interim measures of protection pending the pronouncement of this eminent international tribunal on the merits of the case.

Greece's request is founded on Article 33 of the General Act of 1928 and on Article 41 of the Statute of the Court. Both these texts confer on the Court the power to indicate interim measures of protection. But they differ, in particular, in the weight and scope of the powers conferred on the Court for that purpose.

The wording of Article 33, paragraph 1, of the General Act is more imperative from the Court's standpoint:

"1. In all cases where a dispute forms the object of arbitration or judicial proceedings, and particularly if the question on which the parties differ arises out of acts already committed or on the point of being committed, the Permanent Court of International Justice, acting in accordance with Article 41 of its Statute, or the Arbitral Tribunal, shall lay down within the shortest possible time the provisional measures to be adopted. The parties to the dispute shall be bound to accept such measures."

As for Article 41, paragraph 1, of the Statute, it provides that the Court "shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party" (emphasis added). In my view, the notion of the "circumstances" which the Court has to take into consideration comprises in the first instance the nature of the rights whose protection is in contemplation. And on that point the texts of Article 33 of the General Act and Article 41 of the Statute are identical. By this I mean that, when the Court finds itself faced with an infringement of rights appertaining to the sovereignty of a State, it is bound to give this circumstance the highest degree of consideration in relation to the indication of the measures requested. [p 37]

Having made that point, I venture to recall that the Court has indicated interim measures of protection in many cases where the rights to be protected did not appertain to the sovereignty of the State in question. In the present case, on the other hand, I have the impression that this is the first time that the Court has refused to indicate interim measures of protection when confronted with a dispute involving infringements of sovereign rights.
In its jurisprudence the Court has defined the conditions which in its view have to be fulfilled if interim measures are to be indicated. Central among these conditions are the following concepts: preservation of the rights of the parties, irreparable prejudice, and aggravation or extension of the dispute.

The concept of preserving the rights of the parties is always featured in the Orders made by the Court, whether they indicate or do not indicate interim measures of protection. On the other hand, the concept of irreparable prejudice has not always been explicitly mentioned in the reasoning of the Court. Such was for example the case in Anglo-Iranian Oil Co. (where interim measures were indicated) and Interhandel (where they were not). I would add that the concept of irreparable prejudice is not taken by the Court in a literal sense. The prejudice is considered in relation to the situation in which it takes place.

In the present case, there is grave and irreparable prejudice to sovereign rights as such, for we know that, according to the Court, the coastal State possesses such rights over the continental shelf ipso facto and ab initio, that Article 2 of the Geneva Convention, when it speaks of exclusivity, confers an absolute right and that, consequently, any infringement of that absolute right constitutes an irreparable prejudice. I consider equally irreparable the prejudice caused by the gathering of information on the resources of the Greek shelf and the possibility of disclosing them, which would raise an insurmountable obstacle to their exploitation by Greece.

Furthermore, the material fact of exploring the continental shelf by means of explosions constitutes an aggravating circumstance if the evolution of international law in this respect is taken into account.

Indeed Part III of the Revised Single Negotiating Text of the United Nations Third Conference on the Law of the Sea (A/CONF.62WP. 8/Rev.l/Part III (6 May 1976)), which according to the Chairman of the Third Committee has taken account "of all the proposals and amendments submitted and results reached during this session of the conference", includes, in Article 60, paragraph 2, subparagraph (b), a very clear ban on carrying out research or exploration of the continental shelf by means of explosives.

This prohibition postulates the risk of irreparable damage to the natural resources of the continental shelf. But it concerns cases where the research is carried out with the authori-
[p 38]zation of the coastal State. How could the continental shelf be preserved from adverse effects in the case of unlawful exploration, as in the present instance, constituting a veritable vote de fait? And the acts intended to promote Turkey's achievement of its own claims with respect to the Greek shelf are, as I have said above, nothing other than voies de fait. Again I must emphasize this view of the matter.

*

I find myself also in disagreement with that part of the Order which deals with Security Council resolution 395 (1976).

The Court is the principal judicial organ of the United Nations, one of its five principal organs. It contributes, with the means placed at its disposal by the Charter and its Statute, to the settlement of legal disputes between States.
In the present case, we are confronted with a legal dispute (delimitation of the continental shelf) the resolution of which will enable the parties to improve their mutual relations.

The political aspect of the case has been referred to the Security Council. This organ worked out a resolution in accordance with the elements at its disposal.

As for the Court, it has been seised of another fundamental aspect of the same question. Given the urgency of the situation and its aggravation, the Court should have exercised its powers in full. It is not necessary to mention here the difference there is between a dispute or a situation referred at one and the same time to the Security Council and the General Assembly, and two applications of which one is made to the political organs of the United Nations and the other to its judicial organ. In the first instance, Article 12 of the Charter prohibits the General Assembly in principle from making any recommendation for so long as the Security Council is exercising its functions under the Charter with regard to the dispute or situation. But there is absolutely nothing, whether in the Charter or in the Statute, to prevent the Court from making a finding in its own particular domain in cases where another organ of the United Nations is concerning itself with the political aspects of a case.

In a daily deteriorating situation, the indication to both parties that they should avoid any act that might aggravate or extend the dispute would have been justified within the framework of the powers conferred on the Court by Article 33 of the General Act and Article 41 of its Statute. Furthermore, since the Court had decided upon the solutions adopted in paragraphs 34-41 of the Order, while concluding in paragraph 42 that—

".. . it is not necessary for the Court to decide the question whether Article 41 of the Statute confers upon it the power to indicate interim measures of protection for the sole purpose of preventing the aggravation or extension of a dispute",[p 39]

it was necessary in my opinion for the Court to extend that solution to the other ground of the request, that is to say, the question of irreparable prejudice relied on therein, and not to concern itself with that matter. Instead of that, the Court has said that it was not requisite to indicate the measures requested because there was no irreparable prejudice (para. 33). Yet one should not lose sight of the fact that the activities of Sismik I and the irreparable prejudice to which they give rise are central to the case and are closely bound up with the creation of the situation which is aggravating and extending the dispute. It is not surprising that these two factors, closely linked as I have said, were presented together before the Security Council, since the explorations of Sismik I were the cause of the aggravation of the situation.

Now, in my view, the Court ought to have decided in like manner on each of the two different grounds of the request for the indication of interim measures of protection and ought not to have considered the question of irreparable prejudice separately, arriving at the conclusion embodied in paragraph 33. If the Court had followed that course, the answer given on both heads would have been identical, which in my opinion would correspond to the real situation and constitute a fair and calming solution for both parties.

The Question of Jurisdiction

So far as jurisdiction is concerned I think that, before proceeding to consider the request for interim measures, or any request, the Court must satisfy itself, by an extremely summary examination, that it has prima facie jurisdiction to deal with the merits of the case. Not only does that rule emerge from the Court's jurisprudence, but it also constitutes a general principle governing all analogous institutions.

I would refer in this connection to the practice of municipal administrative tribunals. When an appeal is made to an administrative tribunal on the ground of action ultra vires, that does not have any suspensory effect on the act complained of; in other words, the mere filing of the appeal does not prevent that act from being carried out. This is natural, because otherwise the functioning of the administration could be seriously harmed and its activities paralysed. However, in municipal systems of law, there is statutory provision for the unusual event that the performance of the act complained of, if it were to take place pending the pronouncement of the competent tribunal on its validity, would be likely to cause the applicant irreparable prejudice. In such event, it is possible to obtain a stay of execution. Such stay of execution has never been refused on account of doubts as to competence to deal with the substantive appeal.

The Greek application is founded on Article 17 of the General Act of 1928 and on the joint Greco-Turkish communique of 31 March 1975.

So far as the General Act is concerned, although the Court, in the Nuclear Tests cases, did not make any direct pronouncement as to the French contention that it had fallen into desuetude, it nevertheless [p 40] considered the General Act as prima facie in force for the purposes of the interim measures phase. Moreover, recent action by the Secretary-General of the United Nations, the depositary of the General Act, proves that it is still in force.

Greece also founds the jurisdiction of the Court on the communique of 31 May 1975. This constituted an undertaking on the part of both parties. It is a factor which is also sufficient to ascertain that the Court has at least prima facie jurisdiction.

Finally, reservation (b), mentioned in Greece's instrument of accession to the General Act (see para. 19 of the Order) is no obstacle to the force of the General Act, for the three following reasons:

(a) as appears from the letter by Mr. Politis, which has been laid before the Court, the purpose of that reservation was to remove from the sphere of applicability of the General Act such disputes as might arise regarding the possible aspirations of another State to have a free zone, or a zone of special regime, within the territory, of the Greek State;

(b) at the time when that reservation was formulated, the concept of the continental shelf did not yet exist in the field of international law;

(c) the literal sense of the term "territorial status" excludes, in my view, any construction according to which it might comprehend the continental shelf.

For those reasons, I am of the opinion that the jurisdiction of the Court to adjudicate upon the merits of the case does exist, at least prima facie.

(Signed) Michel Stassinopoulos

 
     

 

 

 

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