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[p.12]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court, and to
Articles 73 and 74 of the Rules of Court,
Having regard to the Application by the Republic of Finland filed in the
Registry of the Court on 17 May 1991, instituting proceedings against the
Kingdom of Denmark in respect of a dispute concerning passage through the
Great Belt (Storebælt);[p 13]
Makes the following Order:
1. Whereas by the above-mentioned Application the Republic of Finland
brought before the Court a dispute which has arisen between the two States
concerning a project of the Government of Denmark to construct a fixed
traffic connection for both road and rail traffic across the strait of the
Great Belt, one of the Danish Straits connecting the Baltic with the
Kattegat;
2. Whereas in its Application Finland states that the Danish project
involves the construction over the West Channel of the Great Belt of a
low-level bridge for road and rail traffic, and over the East Channel (the
main channel) of a high-level suspension bridge for road traffic, with
clearance for passage of 65 metres above mean sea level; and that the
construction of, in particular, the East Channel Bridge as planned would
permanently close the Baltic for deep draught vessels of over 65 metres'
height;
3. Whereas in the Application it is further explained that drill ships and
oil rigs have been constructed in Finland since 1972, and that most of them
have navigated to their exploration or production fields through the Great
Belt; that the projected East Channel Bridge would prevent the passage of
such of those drill ships and oil rigs as require more than 65 metres'
clearance; and that if the projected construction works are carried out as
planned, that would mean an end to Finnish commercial activity in the field
of production of such craft, as well as in respect of the production of
ships of reasonably foreseeable design requiring more than such clearance;
4. Whereas Finland founds the jurisdiction of the Court on the declarations
of acceptance of the jurisdiction of the Court deposited by both States
under Article 36 of the Statute of the Court, and observes that a basis of
jurisdiction is also provided by the Optional Protocol of Signature
concerning the Compulsory Settlement of Disputes adopted at Geneva by the
First United Nations Conference on the Law of the Sea on 29 April 1958;
5. Whereas Finland claims in its Application that the Great Belt is a strait
used for international navigation, that there is a right of free passage
through the Great Belt, governed by the 1857 Treaty of Copenhagen on the
Abolition of the Sound Dues and the 1958 Geneva Convention on the
Territorial Sea and the Contiguous Zone, and that in this respect account
has also to be taken of customary international law and of the transit
passage regime of the 1982 United Nations Convention on the Law of the Sea,
and that the right of free passage through the Great Belt extends to drill
ships and oil rigs and to ships of reasonably foreseeable design;
6. Whereas Finland in its Application therefore asks the Court to adjudge
and declare:[p 14]
"(a) that there is a right of free passage through the Great Belt which
applies to all ships entering and leaving Finnish ports and shipyards;
(b) that this right extends to drill ships, oil rigs and reasonably
foreseeable ships;
(c) that the construction of a fixed bridge over the Great Belt as currently
planned by Denmark would be incompatible with the right of passage mentioned
in subparagraphs (a) and (b) above;
(d) that Denmark and Finland should start negotiations, in good faith, on
how the right of free passage, as set out in subparagraphs (a) to (c)
above, shall be guaranteed";
7. Whereas by a request dated 22 May 1991, and filed in the Registry on23
May 1991, the Republic of Finland, relying on Article 41 of the Statuteof
the Court and Article 73 of the Rules of Court, requested the Court
toindicate the following provisional measures:
"(1) Denmark should, pending the decision by the Court on the merits of the
present case, refrain from continuing or otherwise proceeding with such
construction works in connection with the planned bridge project over the
East Channel of the Great Belt as would impede the passage of ships,
including drill ships and oil rigs, to and from Finnish ports and shipyards;
and
(2) Denmark should refrain from any other action that might prejudice the
outcome of the present proceedings";
8. Whereas on 17 May 1991 the Registrar transmitted a copy of the
Application to the Government of Denmark and on 23 May 1991 the Registrar
notified Denmark of the filing of the request for provisional measures;
9. Whereas, pursuant to Article 40, paragraph 3, of the Statute and Article
42 of the Rules of Court, copies of the Application were transmitted to the
Members of the United Nations through the Secretary-General and to other
States entitled to appear before the Court;
10. Whereas inasmuch as the Court does not include upon the bench a judge of
the nationality of either of the Parties, the Government of Denmark has
chosen Mr. Paul Fischer, and the Government of Finland Mr. Bengt Broms, to
sit as judges ad hoc in this case;
11. Whereas written observations by Denmark on the request for provisional
measures were filed in the Registry on 28 June 1991, and whereas the
submissions therein, which were repeated at the close of the hearings, were
as follows:
"The Government of Denmark requests the Court:
(1) to adjudge and declare that.. .the request of Finland for an order of
provisional measures be rejected;[p 15]
(2) in the alternative, and in the event that the Court should grant the
request in whole or in part, to indicate that Finland shall undertake to
compensate Denmark for any and all losses incurred in complying with such
provisional measures, should the Court reject Finland's submissions on the
merits";
12. Whereas oral observations of the Parties on the request were presented,
at public hearings held, pursuant to Article 74, paragraph 3,of the Rules of
Court, from 1 to 5 July 1991, by the following representatives:
on behalf of the Republic of Finland:
H.E. Mr. Tom Gronberg, Agent,
Mr. Martti Koskenniemi, Co-Agent,
Sir Ian Sinclair, Q.C., Mr.
Tullio Treves;
on behalf of the Kingdom of Denmark:
H.E. Mr. Tyge Lehmann,
Mr. Per Magid and
H.E. Mr. Per Fergo, Agents,
Mr. Niels Jorgen Gimsing,
Mr. Eduardo Jimenez de Arechaga,
Mr. Derek Bowett,Q.C;
and replies were given by the Parties to questions put by Members of the
Court during the hearings;
**
13. Whereas the Republic of Finland claims to found the jurisdiction of the
Court to entertain the present case primarily upon declarations made by the
Parties accepting the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute of the Court; and whereas such declarations were
deposited with the Secretary-General of the United Nations, by the Kingdom
of Denmark on 10 December 1956, without reservations, and by the Republic
of Finland on 25 June 1958, incorporating a reservation not material to the
present case;
14. Whereas on a request for provisional measures the Court need not, before
deciding whether or not to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet it ought not to indicate such
measures unless the provisions invoked by the Applicant appear, prima facie,
to afford a basis on which the jurisdiction of the Court might be founded;
whereas in the present case it has been stated by Denmark that the Court's
jurisdiction on the merits is not in dispute;[p 16]
15. Whereas the Court in the circumstances of the present case is satisfied
that it has the power to indicate provisional measures;
*
16. Whereas the power of the Court to indicate provisional measures under
Article 41 of the Statute of the Court has as its object to preserve the
respective rights of the parties pending the decision of the Court, and
presupposes that irreparable prejudice should not be caused to rights which
are the subject of dispute in judicial proceedings;
17. Whereas the right which Finland submits is entitled to protection by the
indication of provisional measures is the right of passage through the Great
Belt of ships, including drill ships and oil rigs, to and from Finnish
ports and shipyards, the right of passage of "reasonably foreseeable ships",
also asserted in the Application, not being the subject of a request for
provisional measures;
18. Whereas the Court is informed that there are four routes available to
ship traffic to and from the Baltic, namely the Sound (Oresund) between
Sweden and the Danish island of Zealand, the Great Belt (Store-baslt)
between the Danish islands of Zealand and Funen, the Little Belt (Lillebælt)
between the island of Funen and the peninsula of Jutland, and the Kiel
Canal; whereas the Little Belt and the Kiel Canal are crossed by bridges
considerably lower than that planned for the East Channel of the Great Belt,
while the Great Belt and the Sound have up to the present not been bridged;
whereas the reason why, according to Finland, the Great Belt permits passage
of vessels which cannot use the Sound is that the minimum water-depth of the
"T-Channel" of the Great Belt is 17 metres while that of the Sound is less
than 8 metres;
19. Whereas the particular importance to Finland of the right which it
claims lies in the fact that, according to Finland, the East Channel of the
Great Belt is, for certain vessels, including some drill ships and oil rigs,
the only passage-way they can use when communicating to and from the
Baltic; whereas Finland claims that completion of the Danish Great Belt
project in its presently planned form would irreparably prejudice the right
of free passage claimed by Finland in these proceedings by preventing the
passage of vessels, including drill ships and oil rigs, exceeding 65 metres
in height;
20. Whereas it is not disputed by Denmark that completion of its project
for a fixed link across the Great Belt would prevent passage through that
Strait of any vessel requiring greater clearance than that to be afforded by
the East Channel Bridge, i.e., 65 metres above mean sea level (the projected
road and rail bridge over the shallower West Channel having a navigational
clearance of only 18 metres);[p 17]
21. Whereas Denmark contends that for provisional measures to be granted it
is essential that Finland be able to substantiate the right it claims to a
point where a reasonable prospect of success in the main case exists, and
that not even a prima facie case exists in favour of the Finnish
contention; whereas Denmark, while acknowledging that there is a right of
free passage through the Danish Straits for merchant ships of all States,
denies that there is such a right of passage for structures up to 170 metres
high, on the ground, inter alia, that such structures are not ships; whereas
Finland argues that the Court may not enter into the merits of a particular
case at the stage of deciding whether or not to indicate provisional
measures, but denies in any event that Finland's case could be considered as
prima facie unfounded;
22. Whereas it is the purpose of provisional measures to preserve"rights
which are the subject of dispute in judicial proceedings"(United States
Diplomatic and Consular Staff in Tehran, I.C.J. Reports1979, p. 19, para.
36; see also Frontier Dispute, I.C.J. Reports 1986, p. 8,para. 13); whereas
the Court notes that the existence of a right of Finlandof passage through
the Great Belt is not challenged, the dispute betweenthe Parties being over
the nature and extent of that right, including itsapplicability to certain
drill ships and oil rigs; whereas such a disputedright may be protected by
the indication of provisional measures underArticle 41 of the Statute if the
Court "considers that circumstances sorequire";
*
23. Whereas provisional measures under Article 41 of the Statute are
indicated "pending the final decision" of the Court on the merits of the
case, and are therefore only justified if there is urgency in the sense that
action prejudicial to the rights of either party is likely to be taken
before such final decision is given;
24. Whereas it is stated by Denmark, and not contested by Finland, that,
according to the planned schedule for construction of the East Channel
Bridge, "no physical hindrance for the passage through the Great Belt will
occur before the end of 1994", when cable works for that bridge are due to
be initiated; and whereas Denmark contends (inter alia) that by that time
the case could have been finally decided by the Court, so that no indication
of provisional measures is required;
25. Whereas Denmark contends that there is no urgency justifying the
indication of provisional measures also on the ground that the construction
of the East Channel Bridge will hardly represent any practical hindrance for
the passing of drill ships and oil rigs through the Danish Straits, inasmuch
as most of the units in question (drill ships and jack-ups) will be able to
pass through the Sound without technical alterations (in the [p 18] case of
jack-ups, by being towed) and the remainder (semi-submersible drilling
units) will be able to pass under the planned East Channel Bridge if part of
the drilling tower (derrick) is left unassembled until after passage of the
bridge; whereas these contentions are not accepted by Finland, which asserts
that for a number of the units constructed since 1972 by a Finnish company,
Rauma-Repola Offshore Oy, and a number of those currently tendered for by
that company, the Great Belt has been or will be the only practicable
passage-way to and from the Baltic;
26. Whereas it appears to the Court that the right claimed by Finland is to
passage specifically through the Great Belt of its drill ships and oil rigs,
without modification or disassembly, in the same way as such passage has
been effected in the past; whereas the Court cannot at this interlocutory
stage of the proceedings suppose that interference with the right claimed by
Finland might be justified on the grounds that the passage to and from the
Baltic of drill ships and oil rigs might be achieved by other means, which
may moreover be less convenient or more costly; whereas accordingly if
construction works on the East Channel Bridge which would obstruct the right
of passage claimed were expected to be carried out prior to the decision of
the Court on the merits in the present proceedings, this might justify the
indication of provisional measures;
27. Whereas however the Court, placing on record the assurances given by
Denmark that no physical obstruction of the East Channel will occur before
the end of 1994, and considering that the proceedings on the merits in the
present case would, in the normal course, be completed before that time,
finds that it has not been shown that the right claimed will be infringed by
construction work during the pendency of the proceedings;
*
28. Whereas Finland claims moreover not only that continuation of the Danish
project as planned will cause irreparable damage to the right of passage
claimed by Finland but that the project is already causing such damage to
tangible economic interests inasmuch as Finnish shipyards can no longer
fully participate in tenders regarding vessels, including drill ships and
oil rigs, which would be unable to pass through the Great Belt after
completion of the East Channel Bridge; and that the existence of the bridge
project in its present form is having and will continue to have a negative
effect on the behaviour of potential customers of those shipyards;
29. Whereas however evidence has not been adduced of any invitations to
tender for drill ships and oil rigs which would require passage out of the
[p 19] Baltic after 1994, nor has it been shown that the decline in orders
to the Finnish shipyards for the construction of drill ships and oil rigs is
attributable to the existence of the Great Belt project; whereas
accordingly proof of the damage alleged has not been supplied;
*
30. Whereas Finland contends further that the completion of the East Channel
Bridge will be only the final step in a continuous process in which Finnish
rights are already being irreparably harmed; whereas Finland observes that
the interrelation between the various elements of the Great Belt project has
as a consequence that completion of any one element would reduce the
possibilities of modifying other elements so as to enable effect to be given
to a judgment of the Court in Finland's favour on the merits, and in this
connection has drawn attention to the fact that, according to Denmark,
tender offers for the construction of the East Channel Bridge expire on 18
August 1991; whereas Finland concludes that there is thus urgency, inasmuch
as many of the activities involved in the project anticipate a final closing
of the Great Belt by excluding practical possibilities for accommodating
Finnish interests and giving effect to Finnish rights in the event of a
judgment in favour of Finland;
31. Whereas it has been argued on behalf of Denmark in the course of the
proceedings on the request for provisional measures that, if the Court ruled
in favour of Finland on the merits, any claim by Finland could not be dealt
with by an order for restitution, but could only be satisfied by damages
inasmuch as restitution in kind would be excessively onerous; whereas the
Court is not at present called upon to determine the character of any
decision which it might make on the merits; whereas in principle however if
it is established that the construction of works involves an infringement of
a legal right, the possibility cannot and should not be excluded a priori of
a judicial finding that such works must not be continued or must be
modified or dismantled;
32. Whereas no action taken pendente lite by a State engaged in a dispute
before the Court with another State "can have any effect whatever as regards
the legal situation which the Court is called upon to define" (Legal Status
of the South-Eastern Territory of Greenland, P.C.I.J., Series A/B, No. 48,
p. 287), and such action cannot improve its legal position vis-à-vis that
other State;
33. Whereas it is for Denmark, which is informed of the nature of Finland's
claim, to consider the impact which a judgment upholding it could have upon
the implementation of the Great Belt project, and to decide whether or to
what extent it should accordingly delay or modify that project;[p 20]
34. Whereas likewise it is for Finland, which is informed of the Great Belt
project, to decide whether or not to promote reconsideration of ways of
enabling drill ships and oil rigs to pass through the Danish Straits in the
event that the Court should decide that construction of the East Channel
Bridge with a clearance of 65 metres would not infringe any right
appertaining to Finland;
35. Whereas, as the Permanent Court of International Justice observed, and
the present Court has reiterated,
"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 disputes between the Parties; as consequently it
is for the Court to facilitate, so far as is compatible with its Statute,
such direct and friendly settlement..." (Free Zones of Upper Savoy and the
District of Gex, P.C.I.J., Series A, No. 22, p. 13; see also Frontier
Dispute, I.C.J. Reports 1986, p. 577, para. 46);
whereas, pending a decision of the Court on the merits, any negotiation
between the Parties with a view to achieving a direct and friendly
settlement is to be welcomed;
36. Whereas it is clearly in the interest of both Parties that their
respective rights and obligations be determined definitively as early as
possible; whereas therefore it is appropriate that the Court, with the
co-operation of the Parties, ensure that the decision on the merits be
reached with all possible expedition;
*
37. Whereas the decision given in the present proceedings in no wayprejudges
any question relating to the merits of the case, and leavesunaffected the
right of the Governments of the Republic of Finlandand the Kingdom of
Denmark to submit arguments in respect thereof;
**
38. For these reasons,
The Court,
Unanimously,
Finds 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 provisional measures.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twenty-ninth day of July, one thousand [p 21]
nine hundred and ninety-one, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government of
the Republic of Finland and the Government of the Kingdom of Denmark,
respectively.
(Signed) R. Y. Jennings,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Tarassov appends a declaration to the Order of the Court.
Vice-President Oda, Judge Shahabuddeen and Judge ad hoc Broms append
separate opinions to the Order of the Court.
(Initialled) R.Y.J.
(Initialled) E.V.O.
[p 22]
Declaration of judge Tarassov
I have voted for the present Order, albeit not without some hesitation.
As it seems to me, the continuation of the construction work on the East
Channel Bridge over the Great Belt even now constitutes a serious threat to
the continued, unimpeded passage of international shipping through this
international strait. The present bridge project has been conceived in such
a way that not only after its final realization, but even during the
construction process, it would impose serious physical limitations upon the
possibilities and scope of navigation for Finland as well as upon the whole
international community and, in particular, the Baltic States.
This is my preoccupation and my concerns are strengthened by the fact that
the East Channel Bridge is only a part of a bigger road and rail
communication link over the Great Belt and that, given this situation, the
implementation of other parts of the whole project would inevitably make it
more difficult to correct the present plan of the East Channel Bridge if the
Court were to find in favour of Finland on the merits.
At the same time I fully subscribe to the recognition, reflected in the
present Order of the Court, of the indisputable right of Finland to passage
through the Great Belt and also accept the possibility that the Court may,
if circumstances so require, indicate provisional measures for the
protection of this right and its disputed application to certain drill
ships and oil rigs.
I see the main significance of the present Order in the Court's resolute
intention to prevent a situation from arising in which, pendente lite, both
the Parties to the case, the Court itself, and also all States interested in
free and unimpeded maritime navigation through the Great Belt (which by
virtue of conventional and customary international law, has the status of
an international strait), might be confronted with a fait accompli, which
could be brought about in the event of an accelerated continuation by
Denmark of its present construction plans for the bridge, without any
modification. That intention of the Court, as I understand it, is expressed
very distinctly in the following provisions of the present Order:
(1) The Court has established in paragraph 24 of the Order that, as stated
by Denmark, the planned schedule for the construction of the East Channel
Bridge is such that "no physical hindrance for the passage through the Great
Belt will occur before the end of 1994", which means that the status quo of
passage through the Great Belt will not be changed prior to the decision of
the Court on the merits of the case.
(2) In paragraph 26 of the Order the Court has recognized that: [p 23]
"if construction works on the East Channel Bridge which would obstruct the
right of passage claimed were expected to be carried out prior to the
decision of the Court on the merits in the present proceedings, this might
justify the indication of provisional measures".
In this provision of the present Order I see not only a possibility that
Finland may, in accordance with Article 75, paragraph 3, of the Rules of
Court, renew its request for provisional measures "based on new facts", but
also some indication that the Court, in accordance with Article 75,
paragraph 1, may examine proprio motu whether the further construction of
the bridge based on the plans in their present form will require special
measures of protection of the disputed rights of Finland.
(3) While, in paragraphs 33 and 34 of the Order, the Court cautionsboth
Parties equally about the need to take into consideration, in any fur-ther
actions related to the present dispute, the final judgment of the
Court(whatever it may be), paragraphs 31 and 32 of the Order emphasize
verystrongly that no action should be taken pendente lite to change the
statusquo in respect of passage through the Great Belt.
If it were to be established that the construction works involve an
infringement of the legal right, the Court does not exclude the possibility
of a judicial finding that such works "must not be continued" or even "must
be modified or dismantled".
(4) The last factor aimed at securing the respective rights of the
Partiesuntil the decision on the merits is the intention of the Court
reflected inparagraph 36 of the Order to ensure, with the co-operation of
the Parties,that that decision be reached with all possible expedition.
All these provisions of the Order permitted me, together with all the other
Judges, to arrive at the final conclusion that, at present, the
circumstances are not such as to require from the Court the immediate
indication of special provisional measures.
I have also had some difficulties with those provisions of the Order which
deal with the possiblity of negotiations between the Parties, pending a
decision of the Court on the merits. It seems to me that the position of the
Court relating to such negotiations, which in the wording of the Order are
"welcomed", might, in accordance with the previous practice of the Permanent
Court of International Justice and also with its own practice, be more
straightforward and somewhat stronger. The Court could promote the positive
outcome of negotiations if it were to indicate that the aim of such
negotiations is to search for the best technical possibilities which may
fully guarantee that
"the erection of the bridge section crossing the Eastern Channel will, in
conformity with international law, allow for the maintenance of free passage
for international shipping between the Kattegat and the Baltic Sea as in the
past" (Danish Circular Note of 30 June 1987, reproduced as Annex 2 to the
Application by Finland and in Written [p 24]Observations of Denmark on the
Finnish request for provisional measures, Annex 8).
I am sure that it was in the power of the Court — albeit not as a special
provisional measure — to recommend that the Parties, given the significance
of the Great Belt for international shipping, should invite for such
negotiations the experts of third countries, especially of those countries
interested in free passage through this international strait, or should
conduct such negotiations under the aegis of the International Maritime
Organization.
(Signed) Nikolai K. Tarassov.
[p 25]
Separate opinion of vice-president Oda
I am in full agreement with the conclusion of the Order to reject the
request of Finland on the sufficient ground of lack of urgency. Urgency is
indeed absent. Firstly, Denmark has given assurances that no physical
obstruction of the East Channel will occur before the end of 1994. Secondly
— and this is a point which should have been underlined —, while would-be
purchasers of drill ships and oil rigs from Finnish shipyards must
inevitably weigh the risk that in the meantime the Court may give a judgment
adverse to the Finnish claim, that risk would have remained undiminished
even if the Court had indicated the provisional measures requested, because
their indication would in no way have prejudged the merits. Consequently, I
saw little meaningful object in Finland's request. The only way in which
the Court can concretely affect Finland's position is by passing judgment on
the merits, and, in view of the negative consequences for that position
flowing from the non-resolution of the dispute, the Court will render the
best service by coming to a final decision at the earliest possible date.
*
I also agree with the warning to Denmark that
"the possibility cannot and should not be excluded a priori of a judicial
finding that such works must not be continued or must be modified or
dismantled" (para. 31).
This phrase adds an extremely important element of balance to the rejection
of the Finnish request. In connection with Denmark's risk, it may be
observed that the Agent and counsel for the Respondent laid stress on the
contention that, should execution of the East Channel Bridge project have
reached an advanced stage before the Court gives judgment and should the
Court in fact find in favour of Finland, it would then be legitimate to
finish the bridge and offer compensation inasmuch as restitution in kind
would be excessively onerous. As the Court in its Order has indicated, no
reliance can be placed on the Court's eventually determining that this
course of action could be represented as legally sufficient. To minimize the
possibility of wasted efforts, it is therefore all the more desirable for
Denmark also that the judgment be handed down as soon as possible.
**[p 26]
There are, however, two aspects of the Order which I regard as somewhat
superfluous. In the first place, while it is certainly true, as the Order
states, that
"it is for Denmark ... to consider the impact which a judgment upholding
[Finland's claim] could have upon the implementation of the Great Belt
project, and to decide whether or to what extent it should accordingly delay
or modify that project" (para. 33),
there seems to be little reason for the Court to suggest "likewise" that
"it is for Finland... to decide whether or not to promote reconsideration
of ways of enabling drill ships and oil rigs to pass through the Danish
Straits in the event that [Finland loses the case on the merits]" (para.
34).
What is in fact needed for Finland, at this stage, is simply to take
cognizance of the obvious possibility that in the event of its losing the
case on the merits it might have to abandon or modify any plans to construct
drill ships and oil rigs higher than 65 metres.
*
Secondly, while I am in no sense opposed to a revival of negotiations if the
Parties take an initiative in that sense, here we have two brother nations
in the Baltic region which, we are assured, have a trusting relationship
pursued through largely informal diplomacy; it is therefore reasonable to
assume that, if negotiations could lead to a solution of their dispute,
recourse to the judicial process would not have been necessary. Where,
indeed, is the incentive for the Parties to negotiate now, when each must
believe that the strength of its position depends upon the judicial
determination of its right: on one side a right of free passage of taller
drill ships and oil rigs, on the other a right freely to undertake works
within the national territory though recognizing a right of passage for
drill ships and oil rigs of lesser height? There is no shared understanding
of the relationship between these rights, or of the rules of international
law relevant to their reconciliation. Thus neither Party can blame the other
for reluctance to negotiate at this stage.
Moreover, if what the Court wishes to encourage is that the Parties should
negotiate as to their respective attitudes or conduct pending judgment of
the merits, it should be obvious that neither side will be willing to risk
prejudicing its case by making concessions. Until the Court has resolved
some central legal issues, the chance of stalemate is therefore so great
that for the Court to point the Parties in that direction may be of little
[p 27] avail. I therefore have difficulty in endorsing the sentiment
expressed by the Court that
"pending a decision of the Court on the merits, any negotiation between the
Parties with a view to achieving a direct and friendly settlement is to be
welcomed" (para. 35).
The only fruitful direction in which the Court can bend its efforts is
towards ensuring "that the decision on the merits be reached with all
possible expedition" (para. 36). Indeed, it is the very readiness of the
Parties to negotiate on a basis of law that makes it imperative to finish
the case as speedily as possible.
(Signed) Shigeru Oda.
[p 28]
Separate opinion of judge Shahabuddeen
I have voted for the Order of the Court but would like to explain my
approach and reasoning with respect to the point of law whether a State
requesting interim measures must establish a prima facie case as to the
existence of the right sought to be preserved by the requested measures.
Issue was joined by the Parties on this important question (para. 21 of the
Order). If Denmark was right in its submission that Finland was required to
show a prima facie case as to the existence of the right sought to be
preserved by the requested interim measures but that Finland had not done
so, this sufficed to dispose of Finland's request. The ruling of the Court
is set out in paragraph 22 of the Order. Having regard to the terms of the
ruling, I consider it necessary to state my position. In my view, Finland
was obliged to show a prima facie case in the sense of demonstrating a
possibility of existence of the specific right of passage claimed in respect
of drill ships and oil rigs in excess of a clearance height of 65 metres.
Where Denmark's submission fails is on the ground, as I hold, that Finland
did in fact succeed in demonstrating that possibility.
The problem presented is this: is it open to the Court by provisional
measures to restrain a State from doing what it claims it has a legal right
to do without having heard it in defence of that right, or without having
required the requesting State to show that there is at least a possibility
of the existence of the right for the preservation of which the measures are
sought? The Court has never pronounced on the question. Scholarly opinion is
divided on itFN1. And, no doubt, as in so many other areas, there [p 29] is
need for caution in having recourse to municipal law ideas on the subject.
--------------------------------------------------------------------------------------------------------------------
FN1
See, for example, Giuseppe Tesauro, "Le misure cautelari della Corte
internazio-nale di Giustizia", Comunicazioni e studi, 1975, Vol. 14, p. 873,
at pp. 897 ff.; J. G. Merrills, "Interim Measures of Protection and the
Substantive Jurisdiction of the International Court", Cambridge Law
Journal, 1977, Vol. 36, p. 86, at pp. 100-102; J. B. Elkind, "The Aegean Sea
Case and Article 41 of the Statute of the International Court of Justice",
Revue hellénique de droit international, 1979, Vol. 32, p. 285, at p. 333;
and Jerzy Sztucki, Interim Measures in the Hague Court, 1983, pp.
97,123,259, and 260; and compare Dr. E. Dumbauld, Interim Measures of
Protection in International Controversies, 1932, pp. 160-161; Dr. M. H.
Mendelson, "Interim Measures of Protection in Cases of Contested
Jurisdiction", British Year Book of International Law, 1972-1973, Vol. 46,
p. 259, at pp. 315-316,321; V. S. Mani, "Notes and Comments on Interim
Measures of Protection: ICJ Practice", Indian Journal of International Law,
1973, Vol. 13, p. 262, at pp. 265, 272; and, also by him, International
Adjudication: Procedural Aspects, 1980, p.293.
---------------------------------------------------------------------------------------------------------------------
To indicate interim measures without requiring the requesting State to
demonstrate some arguable basis for the existence of the right which is
sought to be protected would seem to present a problem of reconciliation
with the exceptional character of the procedure — a problem of some
delicacy, regard being had to the consensual nature of the Court's
jurisdiction. As observed by Dumbauld:
"Interim measures always constitute an exceptional remedy. They derogate
from the usual rule that a plaintiff can not obtain relief until he has
thoroughly proved his case, and all defenses and objections of his adversary
have been heard and considered." (Dr. E. Dumbauld, Interim Measures of
Protection in International Controversies, 1932, p. 184.)
No doubt, Dumbauld had that consideration in mind when stating:
"Indication of interim measures is to be made if the 'Court considers'
('estime') that circumstances so require. It thus appears that a prima facie
showing of probable right and probable injury is all that is required."
(Ibid., pp. 160-161, para. 9.)
The exceptional character of interim measures, to which Dumbauld drew
attention, assumes added significance when it is recalled that it is not
settled whether the jurisprudence of the Court allows for compensating a
party for any injury suffered in complying with an interim measure should
the latter be eventually found to have been unjustified; that point, raised
in this case, did not fall for decision and remains undecided.
Possibly the most influential factor contributing to a discernible and
perhaps understandable general impression that the Court should not consider
whether there is a prima facie case as to the existence of the right claimed
is the need to avoid any appearance of prejudgment. That danger must not be
overlooked; it is clearly of special importance in the sensitive field of
litigation between States. However, that consideration needs to be balanced
against the reflection that the State which is sought to be constrained may
itself have an interest in showing that the requesting State has failed to
demonstrate a possibility of the existence of the right sought to be
protected: in this case, for example, it is Denmark, the Respondent, which
is raising the question whether the right claimed by Finland, the Applicant,
exists. As for the requesting State, any opposition by it to a requirement
to establish the possible existence of the right claimed can hardly rest on
grounds of prejudgment; for any complaint on such grounds is met by the
circumstance that it would ex hypothesi have had an [p 30] opportunity to
meet the requirement. Also, in measuring the danger of prejudgment, it has
to be borne in mind that what the Court is considering is not whether the
right sought to be preserved definitively exists, but whether the requesting
State has shown any possibility of its existence. As general judicial
experience shows, that distinction is not artificial; it is real. Certainly,
a finding that such a possibility exists clearly falls short of constituting
an interim judgment.
It is improbable that the Court is bound by a mere assertion of rights even
where these are manifestly incapable of existing in law. If this is
conceded, as it is by Finland, some colour is lent to the view that the
Court must be concerned with satisfying itself affirmatively of the possible
existence of the rights claimed, the required degree of proof being
dependent on the character and circumstances of the particular case. I shall
approach the matter on the basis of the requesting State happening to be
also the applicant in the main proceedings, as in this case.
It seems that the Court has come to adopt a prima facie test of
jurisdiction over the merits when deciding whether to indicate interim
measures (see Nuclear Tests (Australia v. France), Interim Protection,
I.C.J. Reports 1973, p. 99, at p. 101,para. 13, and p. 102, para. 17;
Nuclear Tests (New Zealand v. France), Interim Protection, I.C.J. Reports
1973, p. 135, at p. 137, para. 14, and p. 138, para. 18; United States
Diplomatic and Consular Staff in Tehran, Provisional Measures, I.C.J.
Reports 1979, p. 7, at p. 13, para. 15, and p. 14, paras. 18 and 20; and
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional
Measures, I.C.J. Reports 1990, p. 64, at pp. 68-69, paras. 20 and 22). It
appears to be also settled that the power of the Court to indicate interim
measures is distinct from its jurisdiction over the merits (see Dumbauld,
op. cit, pp. 165, 186; M. O. Hudson, The Permanent Court of International
Justice, 1920-1942, New York, 1943, p. 425; Anglo-Iranian Oil Co.,
Preliminary Objection, I.C.J. Reports 1952, p. 93, at pp. 102-103;
Interhandel, Interim Protection, I.C.J. Reports 1957, p. 105, at p. 118, per
Judge Lauterpacht; S. Rosenne, The Law and Practice of the International
Court, 1965,Vol. 1, pp. 422-423; and Sir Gerald Fitzmaurice, The Law and
Procedure of the international Court of Justice, 1986, Vol. 2, pp. 533 ff.).
This being so, in considering whether it has prima facie jurisdiction over
the merits, the Court is not considering whether it has power to indicate
interim measures (for this rests on another basis), but is rather
considering whether the case is a fit and proper one for exercising that
power. In other words, the question whether substantive jurisdiction prima
facie exists is germane to the "circumstances" within the meaning of Article
41 of the Statute (see M. O. Hudson, "The Thirtieth Year of the World
Court", American Journal of International Law, 1952, Vol. 46, p. 1, at p.
22; and Aegean Sea Continental Shelf, Interim Protection, I.C.J. Reports
1976, p. 3, at [p 31] pp. 15-16, per President Jimenez de Arechaga; cf.
Judge Mosler, ibid., at p. 25).
But jurisdiction over the merits is merely one element which the applicant
must establish in order to succeed in the substantive case which it has
brought — a truth undiminished, in my view, by the importance of that
element or by the fact that it may be argued as a preliminary issue. If the
applicant cannot make out a prima facie case of substantive jurisdiction,
this circumstance shows that it has no possibility of succeeding. Why should
the applicant be limited to being required to show a prima facie case in
respect of only one of the elements which it must establish if it is to
succeed? It is easy to appreciate that proof of the definitive existence of
the right claimed cannot be part of the "circumstances" within the meaning
of Article 41 of the Statute, but is rather a matter for the merits. It is
less easy to accept that this applies to the establishment of a possibility
of the existence of the right. It is not suggested that the requesting State
should anticipate and meet each and every issue which could arise at the
merits. How far it should do so in any particular case will depend on the
nature and circumstances of the case. What is important is that enough
material should be presented to demonstrate the possibility of existence of
the right sought to be protected. I am not certain that this view is
necessarily at variance with the position taken in the joint declaration of
Vice-President Ammoun and Judges Forster and Jimenez de Arechaga in the
Fisheries Jurisdiction cases (I. C.J. Reports 1972,p. 12, at p. 18, and p.
30, at p. 36). If it is, I would respectfully differ.
Although the Court, it would seem, has not so far had occasion to respond
definitively to the question under examination, it may be useful to consider
the way in which the matter has from time to time been treated at the bar of
the Court, and sometimes by the Court itself. In brief, while I recognize
that other interpretations of the material are not excluded, it would appear
that in some cases the shape of the arguments was objectively designed to
prove, or to disprove, the possibility of the existence of the right
claimed, even where this purpose was not explicitly declared.
In the Legal Status of the South-Eastern Territory of Greenland case,
President Adatci did indeed indicate to counsel that the merits should not
be encroached upon in arguments on interim measures (P.C.I.J., Series C, No.
69, pp. 16,32 and 48). That notwithstanding, the Order later made by the
Court had occasion to note that —
"according to the statement by M. Steglich-Petersen [counsel for Denmark],
'the Norwegian request for provisional measures has no foundation in Article
41 of the Statute and Article 57 of the Rules' — which deal only with the
preservation of the rights of one or other Party — seeing that, according to
him, Norway possesses no right in the territory in question capable of
forming the subject of [p 32] a measure of protection" (P.C.I.J., Series
A/B, No. 48, p. 277, at p. 282).
It will be seen that, as in the present case, it was the State which was
sought to be constrained (Denmark, then as now) which was effectively
asserting that the State requesting interim measures had failed to prove the
existence of any rights susceptible of being protected by such measures.
The decision turned on other considerations, but this does not affect the
point now being made as to the way counsel for the respondent understood the
requirements of the case.
Some basis seems to exist for thinking that certain aspects of the legal
merits were considered in a provisional way by the Court in the case of the
Anglo-Iranian Oil Co., Interim Protection (I.C.J. Reports 1951, p. 89, at
pp. 92-93), and in the Fisheries Jurisdiction cases, Interim Protection
(I.C.J. Reports 1972, p. 12, at p. 15, and p. 30, at p. 33) (see the
discussion in Dr. M. H. Mendelson, "Interim Measures of Protection in Cases
of Contested Jurisdiction", British Year Book of International Law,
1972-1973, Vol. 46, p. 259, at p. 316).
In the Nuclear Tests case (Australia v. France), though not appearing,
France had challenged Australia's position on the merits (I.C.J. Reports
1973, p. 99, at pp. 104-105, para. 28). Responding to the challenge,
Solicitor-General Ellicott, Q.C., made what he described as an "outline
statement of the substantive law applicable to the merits of Australia's
claim", and added:
"In my submission this outline should suffice to show the serious and
well-founded character of the Australian case in support of its contention
that French conduct of nuclear tests in the South Pacific Ocean is not
consistent with applicable rules of international law." (I.C.J. Pleadings,
Nuclear Tests, Vol. I, p. 189.)
Counsel for Australia was endeavouring to combat the French position to the
point of showing that, in effect, Australia did have an arguable case on the
merits. Now, it is true that the Court confined itself to saying that —
"for the purpose of the present proceedings it suffices to observe that the
information submitted to the Court, including Reports of the United Nations
Scientific Committee on the Effects of Atomic Radiation between 1958 and
1972, does not exclude the possibility that damage to Australia might be
shown to be caused by the deposit on Australian territory of radio-active
fall-out resulting from such tests and to be irreparable" (I.C.J. Reports
1973, p. 99, at p. 105, para. 29; and see, ibid., p. 135, at p. 141, para.
30).
Thus the Court did not say that such possible damage to Australia might be
violative of some possible right of Australia; and I do not minimize the
value of this fact for opposing arguments. It does, however, seem some-[p
33]what improbable that the Court could recognize "the possibility" that
Australia might be able to show irreparable damage from radio-active
fall-out on its own territory resulting from French nuclear tests without at
the same time assuming that Australia could also show at least a
possibility that such damage was in violation of some Australian right. The
argument of counsel to this effect could scarcely have been absent from the
mind of the Court when making the statement cited above and proceeding to
indicate provisional measures affecting a major French programme.
In the Aegean Sea Continental Shelf case, Professor O'Connell, for Greece,
conceived his position thus: "We are required only to show that prima facie
Greece has rights which are threatened" (I.C.J. Pleadings, Aegean Sea
Continental Shelf, p. 89). He restated the substance of that understanding
on two further occasions (ibid., at pp. 97 and 115).
Reference may also be made to I.C.J. Pleadings, United States Diplomatic
and Consular Staff in Tehran, at pages 21 ff. and 25 ff., for extensive
arguments in support of the substance of the United States claim. Rejecting
an Iranian argument that the United States request implied "that the Court
should have passed judgment on the actual substance of the case submitted to
it", the Court said that —
"a request for provisional measures must by its very nature relate to the
substance of the case since, as Article 41 expressly states, their object is
to preserve the respective rights of either party;..."(United States
Diplomatic and Consular Staff in Tehran, Provisional Measures, I.C.J.
Reports 1979, p. 7, at p. 16, para. 28; emphasis added).
Although it was not to be understood as making any definitive decisions, the
Court was clearly concerned to satisfy itself affirmatively that there was a
case for holding that the rights sought to be protected by provisional
measures did exist in international law and were in fact being violated
(ibid., pp. 17-20, paras. 34-43). The particular circumstances of the case
may explain the lengths to which the Court went into the merits, but that
the Court did at all go into the merits would seem to rest on more general
considerations suggestive of recognition that a State requesting interim
measures must satisfy the Court that it has an arguable case in favour of
the existence of the rights sought to be preserved pending a final decision.
In the case of the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Provisional Measures, the
Order of the Court carefully set out the relevant circumstances, together
with a reference to supporting evidence from Nicaragua, and stated:[p 34]
"Whereas the Court has available to it considerable information concerning
the facts of the present case, including official statements of United
States authorities; whereas, the Court, in the context of the present
proceedings on a request for provisional measures, has in accordance with
Article 41 of the Statute to consider the circumstances drawn to its
attention as requiring the indication of provisional measures, but cannot
make definitive findings of fact, and the right of the respondent State to
dispute the facts alleged and to submit arguments in respect of the merits
must remain unaffected by the Court's decision" (I.C.J. Reports 1984, p.
169, at p. 182, para. 31; and see, ibid., pp. 181-182, paras. 29-30).
Of course the Court could not "make definitive findings of fact" at that
stage; but it is at the same time improbable that it had not developed an
awareness that the "considerable information concerning the facts", which
was before it, was sufficient to disclose that Nicaragua did at least have
an arguable case on the substance of its claim.
It is not proper mechanically to impute to the Court the positions taken or
assumed by counsel, particularly where the Court has not spoken. On the
other hand, it is equally not right to seek to appreciate the positions
taken by the Court abstracted from their forensic context. As is well known,
it is frequently the case that recourse to the arguments of counsel is
necessary for an understanding of what in fact a court was doing.
I do not say that all of the cases — and they are not many — speak
consistently for the interpretation proposed, or that each of them is
equally illuminating; and it would certainly be wrong to overstate the
possible supportive value of any of them for that interpretation. But,
taking them cumulatively, the general pattern of advocacy employed by
counsel, and also the reaction of the Court on some occasions, as in the
United States Diplomatic and Consular Staff in Tehran case, would appear to
be objectively consistent with Judge Anzilotti's understanding of the law as
expressed in his dissenting opinion in the case of the Polish Agrarian
Reform and German Minority, when he said:
"If the summaria cognitio, which is characteristic of a procedure of this
kind, enabled us to take into account the possibility of the right claimed
by the German Government, and the possibility of the danger to which that
right was exposed, I should find it difficult to imagine any request for the
indication of interim measures more just, more opportune or more appropriate
than the one which we are considering." (P.C.I.J., Series A/B, No. 58,p.
175, at p. 181; emphasis as in the original.)
This dictum was referred to by counsel in two later cases (see I.C.J.
Pleadings, Anglo-Iranian Oil Co. (Interim Measures), at pp. 415-416, per Sir
Frank Soskice, Q.C., and I.C.J. Pleadings, Fisheries Jurisdiction [p 35]
(Interim Measures), Vol. I, at pp. 99-100, per Sir Peter Rawlinson, Q.C.).
In the latter case, counsel remarked:
"Judge Anzilotti on a preliminary view in that case, and taking into account
merely a possible danger to a possible right of the Applicant, was prepared
to order the Respondent to suspend a major programme of agrarian reform
taking place in its own territory." (Ibid., p. 100.)
Judge Anzilotti was indeed prepared to do so, but only, as counsel
recognized, if he was satisfied of "the possibility of the right claimed by
the German Government, and the possibility of the danger to which that
right was exposed". Save on the basis of this minimum assurance, he could
scarcely have gone as far as to be prepared to "order the Respondent to
suspend a major programme of agrarian reform taking place in its own
territory".
It is difficult to conceive how it could be otherwise in respect of the
major programme of construction taking place in the territory of the
Respondent in the present case. Could the Court really have stopped the
construction of a multi-billion dollar project by the Respondent in its own
territory without first satisfying itself that the requesting State could at
least show a possibility of the existence of the right which it was seeking
to have protected? It seems to me that only the clearest and most compelling
legal authority could oblige the Court to accept that it could properly do
so. No authority of that level of cogency is to my mind presented in such
literature as there is on the subject. I certainly do not see how anything
in the "circumstances" of the case could possibly have led the Court to act
in that way. Urgency may justify summary application of, not dispensation
with, what appears to me to be a requirement rooted in deep principle.
The fact that the Court has reserved to itself the right under Article 75 of
the Rules of Court to exercise its power under the Statute to indicate
interim measures proprio motu would not seem sufficient to suggest that the
Court may exercise that power without first considering whether there is any
possibility of the existence of the right sought to be protected.
I may add that, though I appreciate it, I am not persuaded by argument that
a requirement for prima facie proof of the possible existence of the right
sought to be protected would involve a duplication of the substantive
hearing. This might be so if the requesting State was required to meet every
issue capable of arising at the merits. However, as suggested above, that is
not the position, it being sufficient if enough material is presented to
disclose the possibility of the existence of the right claimed. In this
case, for example, it is, in my opinion, sufficient that Denmark accepts
that Finland has a right of passage through the Great Belt; that Denmark
has been aware of the fact that since 1972 to the present Finland has from
time to time passed through the Great Belt several drill ships and oil rigs
in excess of a clearance height of 65 metres; and that, in full knowledge of
this, Den-[p 36]mark has never objected to their passage and still does
not, as indeed it has affirmed at the hearing. The possibility, thus
signified, of the existence of the right claimed may conceivably be
negatived by other circumstances; but these matters are for the merits.
Judge Anzilotti's formula, referred to above, appears to be potentially less
productive of any risk of prejudgment than the prima facie test, as commonly
understood; and I prefer it. But I think that the fine distinctions known
to municipal law in this field need not detain enquiry; and that
accordingly, for purposes of international litigation, the substance is
largely the same whether one speaks of a prima facie test, or of a test as
to whether there is a serious issue to be triedFN1, or of a test as to
whether there is possible danger to a possible right.
---------------------------------------------------------------------------------------------------------------------
FN1In
one national jurisdiction a revised test as to whether there is a serious
issue to be tried has seemingly not wholly displaced the prima facie test,
and doubt has been expressed as to whether it greatly affects the results
reached by the latter (see The Supreme Court Practice. 1991, London, 1990,
Vol. l,Part 1, Order 29/1/2, p. 498; American Cyanamid Co. v. Ethicon Ltd.
[1975] AC 396 HL; Fellowes and Son v. Fisher[l976) 1 QB 122 CA; N.W.L.
Ltd.v. Woods [1979] 3 All ER614HL; Duport Steels Ltd. v. Sirs [1980] 1 All
ER 529 HL; and Cayne v. Global Natural Resources Ltd. [1984] 1 All ER 225
CA).
---------------------------------------------------------------------------------------------------------------------
My conclusion is that a State requesting interim measures, such as Finland,
is required to establish the possible existence of the rights sought to be
protected in the sense in which Judge Anzilotti spoke of the Court, by a
summaria cognitio, taking "into account the possibility of the right claimed
. . . and the possibility of the danger to which that right was exposed". In
my opinion, the opposite cannot credibly be argued after the United States
Diplomatic and Consular Staff in Tehran case. However, for the reasons given
above, I think Finland has met that test. It is on other grounds that its
request fails.
(Signed) Mohamed Shahabuddeen.
[p 37]
Separate opinion of judge Broms
Having joined the other Members of the Court in adopting the present Order I
want to explain the factual background to the adoption of the Order. In
doing this I do realize that at this stage any comment must relate solely to
the request for the provisional measures while the merits of the case will
only be discussed when the final decision of the Court will be made.
Needless to say the Parties at the hearing did refer to some of the merits
in order to justify their views on the provisional measures. This turned out
to be necessary in order to estimate whether the claimant had a prima facie
case.
At the time the Application for the provisional measures was made by Finland
the normal prerequisites seemed to exist for the granting of the request.
The jurisdiction of the Court did not present any problems; the claim
obviously included legal problems to be judged by the Court, and was one
which on its face had reasonable chances of succeeding. The claimant also
could prove that without provisional measures irreparable prejudice could be
caused to the right of free passage of drill ships and oil rigs allegedly
based on several international treaties and international custom. There also
seemed to be the required urgency, which has often played a decisive role in
the Court's decision-making on applications for provisional measures. The
final construction tenders for the East Channel Bridge have an acceptance
deadline of 18 August 1991 and there was a danger that tenders for Finnish
oil rigs and drill ships would diminish due to the fear of the potential
buyers that the construction work would be prevented in the near future due
to the impossibility of making use of the right of free passage through the
Great Belt.
At the hearing the Danish Government made a statement that, according to
the schedule for construction of the East Channel Bridge, "no physical
hindrance for the passage through the Great Belt will occur before the end
of 1994" (Danish Written Observations, para. 140 (2); Public Sitting of 2
July 1991 (morning), CR 91 /11, p. 11 (Lehmann)). To this it was added that
by that time the case would have been finally decided by the Court. Having
said this the Agent for Denmark suggested that no indication for provisional
measures was required (ibid.). He went on to explain that the construction
of the East Channel Bridge will not present any practical hindrance for the
passage of mobile offshore drilling units through the Danish Straits and the
navigation may continue through the Strait as before (see para. 25 of the
Order).[p 38]
Thus according to the Agent of Denmark, there is no urgency. Another thing
changing the original situation was that later during the deliberations of
the case the Court decided to make the final decision of the case
expeditiously, probably during the spring of 1992 or at the latest in the
fall of 1992. When this decision is combined with the Danish assurances as
to the continuation of the right of free passage, the issue of urgency must
be seen in another light. Finnish ships, including the oil rigs and drill
ships, are now guaranteed the right of transit at least until the end of
1994 and the Court will decide the case as expeditiously as possible —
certainly before the above date. Thus, as a result of the above explained
events the material grounds for the acceptance of the Application have
changed. With these changes the prerequisites for the adoption of the
Application diminished without any fault of the claimant. The remaining
alternative was the present Order.
The present Order confirms the above-mentioned Danish assurances given to
the Court. What is most important, however, is the provision included in
paragraph 32, whereby the Court underlines the well-established legal norm
that a State engaged in a dispute before the Court with another State cannot
improve its legal position vis-a-vis that other State by any action taken
pendente lite, and no such action "can have any effect whatever as regards
the legal situation which the Court is called upon to define" (Legal Status
of the South-Eastern Territory of Greenland, P.C.I.J., Series A/B, No. 48,
p. 287). This concerns naturally both Parties but, taking into account the
circumstances of the present case, this principle is especially important
as a guarantee to Finland against any detrimental change which might be
undertaken by the territorial power of the Great Belt.
The Order also decides another important legal issue which was taken up at
the hearing by the counsel, Professor Bowett, speaking for the Government
of Denmark. He suggested that in the event a restitution in kind should
prove excessively onerous for Denmark, a monetary compensa-tion of damages
would suffice as a payment to Finland, should Finland's claim eventually be
accepted by the Court (Public Sitting of 5 July 1991, CR 91/14, p. 45). But
this is not what the claimant has been seeking. The claimant is seeking
restitution in kind. Therefore, the opinion of the Court which denies the
validity of the Danish theory is correct, and an important interpretation.
Finally, I also regard the contents of paragraphs 33 and 34 to be most
important, especially in light of paragraph 35, where the Court welcomes the
Parties to enter into negotiations to solve their dispute. The principle of
equal treatment of the Parties has been quite correctly adopted in
paragraphs 33 and 34. Both Parties are requested to consider alternative
solutions to settle the dispute. With the help of their combined technical
[p 39] expertise, the future negotiations which the Court recommends to both
Parties might turn out to be decisive in finding a mutually acceptable
solution.
I have not been able to avoid the impression that the dispute is one which
could also possibly be solved by the use of negotiations between the two
Governments. By doing this they would only be acting in the best Nordic
spirit of comity and co-operation to make the utmost effort to find a
solution which would satisfy both sides.
After all, the main dispute should be brought to its realistic
measurements. It is not easy to understand how the building of an opening
to the East Channel Bridge by means of a swing bridge, or possibly by
another technical solution, could cause more expense to Denmark than a
relatively small fraction of the total construction costs, which are said
to be more than 4 billion dollars. Neither should such a modification cause
any real delay to the construction work presuming that the necessary
decision is reached in the foreseeable future. As the Order of the Court
itself suggests negotiations to the Parties, the acceptance of negotiations
can no longer be said to lead to any loss of face on either side. To the
contrary, the Court would appreciate such an effort by the Parties. Needless
to say, even if the Parties could not solve their dispute through direct
negotiations, the results of such negotiations, and in particular the
technical solutions which may be explored, would be helpful to the Court
which, for natural reasons, is composed of legal, and not technical,
representatives.
As the Court now has decided to deal expeditiously with the case this
solution is in the interest of both Parties. The uncertainty of the
situation should not be allowed to continue any longer than is absolutely
necessary. Now that the Court has adopted the above Order it is to be hoped
that with the co-operation of the two Agents the merits of the case will,
indeed, be decided at the latest by the end of 1992. That way any possible
damage to either Party would be minimized.
(Signed) Bengt Broms. |
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