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The Dispute between Greece and Turkey Concerning the Continental Shelf in the Aegean

Published online by Cambridge University Press:  27 February 2017

Leo Gros
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Extract

On August 10, 1976, Greece addressed a communication to the President of the Security Council requesting an urgent meeting of the Council on the ground that “following recent repeated flagrant violations by Turkey of the sovereign rights of Greece in the continental shelf in the Aegean, a dangerous situation has been created threatening international peace and security.” On the same day, by unilateral application, Greece instituted proceedings in the International Court of Justice against Turkey in “a dispute concerning the delimitation of the continental shelf 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.” Also on the same day Greece filed a request for interim measures of protection asking the Court to direct that both Greece and Turkey

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 1 , January 1977 , pp. 31 - 59
Copyright
Copyright © American Society of International Law 1977

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References

1 UN Doc. S/12167.

2 Aegean Sea Continental Shelf, Interim Protection, Order of 11 Sept. 1976. [1976] ICJ REP. 3 (hereinafter cited as [1976] REP.), 15 ILM 985 (1976).

3 In the French version the passage is clearer: “ … la Turquie a accordé des concessions ou des permis, ou qui sont adjacentes aux iles, ou qui se trouvent à d'autres égards en litige dans la présente èspece.“

4 [1976] REP at 4-5.

5 Id. at 19 and 27. Judge Elias thought this case was “probably unique” from this angle. Id.

6 Id. at 5, paras. 8 and 13, paras. 45 and 46.

7 In the Council the Turkish representative, referring to this, said: The position of the Turkish Government on this matter has always been clear and consistent. If it becomes necessary, Turkey does not exclude recourse to the International Court of Justice to settle certain relevant aspects of the problem, but maintains that the dispute should first be negotiated between the two countries. Those aspects of the problem that cannot be resolved through negotiations conducted meaningfully and in good faith could then and only then, be referred to the International Court of Justice or to any other legal or judicial instance. It is obvious that such a referral can only be made jointly. UN Doc. S/PV.1950, Aug. 13, 1976, at 12. The representative quoted the following passage from the Continental Shelf case on the meaning of “meaningful” negotiations: The parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement, they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it. [1969] ICJ REP. 3, at 47, para. 85(a). The text in UN Doc. S/PV.1950 is not quite accurate. For earlier evidence of Turkey's position, see Notes Verbales from the Turkish Ministry of Foreign Affairs to the Greek Embassy in Ankara of Feb. 6, 1975, Sept. 30. 1975, and Nov. 18, 1975 in UN Doc. S/12173, Aug. 12, 1976, Annexes II and III.

8 The islands are listed in the Greek Application at 4, 5, and 10 and in [1976] REP. 6, para. 15(i).

9 Id. 4, para. l (i).

10 Id. 7, para. 16, and Greek Application at 4.

11 The Turkish representative in the Security Council, UN Doc. S/PV.1950, Aug. 13, 1976, at 7-10.

12 Letter from the permanent representative of Turkey to the Secretary-General of the UN of Aug. 18, 1976, UN Doc. S/12182.

13 [1976] REP. at 4, para. l(ii). Submissions (iii) to (vi) are consequential: the Court is asked to adjudge that Greece has exclusive rights in the shelf, that Turkey is not entitled to undertake any activities without the consent of Greece, that Turkish activities constitute infringements of Greek sovereign rights, and finally that Turkey shall not continue its activities.

14 Greek Application, 18, para. 31. Islands are listed in para. 29. It may be that the position of Greece was motivated by its reservation to the accession to the General Act for the Pacific Settlement of International Disputes of September 28, 1928. This excluded certain disputes “in particular disputes relating to its rights of sovereignty over its ports and lines of cornmunications.” [1976] REP. 8, para. 19. Turkey's position was that the General Act was “no longer a treaty in force between Greece and Turkey” and alternatively that the dispute fell within the terms of the reservation. Ibid. This point is elaborated in the Observations of the Government of Turkey on the Request by the Government of Greece for Provisional Measures of Protection, transmitted to the Court on August 25, 1976, at 8 and 10 ff. The Court found that “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 … “ . [1976] REP. 8, para. 21.

15 Greece could invoke Article 1 of the 1968 Geneva Convention on the Continental Shelf which defines in Article 1(b) the term “continental shelf’ as referring “to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.” 15 UST 471; TIAS No. 5578; 499 UNTS 311, 52 AJIL 858 (1958). Turkey, although not a party to the Convention, could rely on Article 6, as interpreted by the Court in the Continental Shelf case, which, in cases of both coasts which are opposite each other and coasts adjacent to the territories of two adjacent states, stressed the principle that delimitation shall be determined by agreement and that “special circumstances” may require consideration. See Turkish Note Verbale, Feb. 27, 1974, in Greek Application, at 37-39, referring to [1969] ICJ REP. 31, paras. 43 and 44 and 47, para. 85.

16 Greek Note Verbale, March 22, 1976, in Greek Application, at 81. As understood by Greece, Turkey denied the applicability of the median line to the delimitation of the shelf in the Aegean between opposite states, also on the ground that there was “a discontinuity in the seabed.” Statement by the Greek Delegation at the Meeting of Experts of the Governments of Greece and Turkey in Berne on June 19 and 20, 1976, in Greek Application, at 84-86.

17 Supra, p. 31.

18 UN Doc. S/12168, Aug. 10, 1976, at 1.

19 Id. at 3, and UN Doc. S/PV.1949, Aug. 12, 1976, at 6.

20 UN Doc. S/12173, Aug. 12, 1976, at 5. The movements of Sismik-I are detailed in this document at 2 as well as in its Annex I, at 2-3.

21 UN Doc. S/PV.1949, Aug. 12, 1976, at 16. The Greek representative summarized the substantive dispute at 6-15.

22 UN Doc. S/12172, Aug. 11, 1976, Annex I and Annex II, at 1.

23 Id. Annex II, at 2. Turkey submitted “a list of illustrative nature of the harassment and intimidation actions” by Greece. UN Doc. S/12175, Aug. 13, 1976.

24 UN Doc. S/12176, Aug. 13, 1976. Turkish charges of Greek explorations in the Aegean “outside the territorial waters” of the specified islands are detailed in UN Doc. S/12182, Aug. 20, 1976.

25 UN Doc. S/PV.1950, at 6, 7-10. The representative of Turkey also alluded to “illegal acts” of Greece “aimed at transforming the international air space of the Aegean into national Greek air space, thus depriving Turkey and other countries of their inherent and traditionally established rights to use the international air space over the Aegean.” Id. at 17.

26 Id. at 21. Some details on the violations of the treaties of 1923 and 1947 will be found id. at 16. Concerning “meaningful negotiations,” see supra note 7.

27 The statement by the representative of the United Kingdom, UN Doc. S/PV.1953, Aug. 25, 1976, at 8. The representative of the United States did not believe that the Council was the place “to analyze such complex issues of international law” as those relating to the continental shelf which “are among the most sensitive in the entire field of international law.” Id. at 14-15.

28 UN Doc. S/PV.1953, Aug. 25, 1976, at 8.

29 Id. 47. Pakistan objected to paragraph 4 of the draft resolution and to the unilateral application of Greece to the Court and hoped that Greece “will now find it possible to reconsider.” Id. 43. Libya indicated that if a vote were taken, it would abstain. Id. 47. As adopted, the resolution was numbered 395 (1976).

30 The French representative stated that the authors of paragraph 4 “had a great deal of trouble with the two parties regarding it” and went on to say: The Charter, in Chapter VI, lists the various peaceful ways of settling disputes. Article 36(3) specifically singles out the specific role to be played by the International Court of Justice in dealing with legal disputes, which is clearly what the limitation of the continental shelf is. What we have tried to recall in the last operative paragraph of our draft, which is the logical outcome of the preceding paragraph, is that when the parties, in their negotiations, encounter problems which they are unable to resolve, they have available to them the judicial channels laid down in the Charter—and, in the case of the International Court of Justice at The Hague—those enunciated in the Court's Statute. This reminder seems reasonable to us and in accordance with the position previously taken by both Greece and Turkey. UN Doc. S/PV.1953, at 21.

31 Id. 24-25, 26, 51, and 52.

32 Id. 7. The last preambular and the first two operative paragraphs read as follows: Conscious of the need for the parties both 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, 1. Appeals to the Governments of Greece and Turkey to exercise the utmost restraint in the present situation; 2. Urges 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;

33 Id 53-55.

34 Id. 57.

35 Id. 18.

36 See supra, p. 32 at note 7. For the Greek statement, see UN Doc. S/PV.1953, at 57. The text of paras. 3 and 4 is as follows: 3. Calls on the Governments of Greece and Turkey to resume direct negotiations over their differences and appeals to them to do everything within their power to ensure that these result in mutually acceptable solutions; 4. Invites the Governments of Greece and Turkey in this respect to continue to take into account the contribution that appropriate judicial means, in particular the International Court of Justice, are qualified to make to the settlement of any remaining legal differences which diey may identify in connexion with their present dispute.

37 UN Doc. S/PV.1953, at 56. The Turkish representative went on to say: It should also be borne in mind that Turkey has not recognized the jurisdiction of the International Court of Justice as binding. Furthermore, it is undeniable that the resumption of negotiations implies that no unilateral action should be undertaken that would be in flagrant contradiction with the concept of negotiations as I have just defined it. Id. 57.

38 Concerning this, see Ciobanu, Litispendens between the International Court of Justice and the Political Organs of the United Nations, in L. GROSS (ed.), 1 The Future OF The International Court OF Justice 209-75, esp. 219-26 (1976) (hereinafter cited as Gross). See also S. Rosenne, The Lae And Practice OF The International Court 83-87, 516, 752, n.2 (1965).

39 Rosenne, supra note 38, at 752, 851; Ciobanu, supra note 38, at 225-26. Gross 120 Rec. Des Cours 313-439, at 329 (I, 1967).

40 Rosenne, supra note 38, at 87. Rosenne continues as follows: This is illustrative of the extent of the integration with the Organization and its work of the Court as a principal organ and the principal judicial organ of the United Nations. It well illustrates the functional parallelism of two principal organs of the United Nations, each of which has competence, under the combined Charter and Statute, to deal with the same “dispute”.

41 Thus, Ciobanu concludes that the travaux prSparatoires of the San Francisco Conference seem to indicate that it was not the intent of the conferees to restrict the jurisdiction of the Security Council to deal with any dispute falling under its jurisdiction for the sole reason that other means and procedures for its peaceful settlement (among them the judicial settlement by the International Court of Justice) have been adopted by the parties. Supra note 38, at 222.

42 The inclusion of Turkey is made with some diffidence but it may be justified by the fact that on August 25, 1976, the day on which Resolution 395 (1976) was adopted in the Council, Turkey transmitted to the Registrar of the Court its Observations on the Request of Greece for Provisional Measures of Protection. The Observations are dated August 10, 1976.

43 Supra, p. 36, at note 30.

44 Resolution 19(1947), Feb. 27, 1947, 2 Scor, Res. & Dec. 3 (1947).

45 It is impossible not to see a veiled criticism of Greece in the remarks of the United States representative I believe it is also clear that both parties recognize the potentially valuable role of the International Court of Justice to consider matters which remain unresolved after negotiations. The important thing is that the parties find a basis through direct contacts between them for whatever combination of direct talks and supporting adjudication may be necessary to achieve the peaceful settlement that my Government is confident both Governments seek. UN Doc. S/PV.1953, at 17.

46 It may be pertinent to draw attention to G.A. Resolution 3232 (XXIX) of November 12, 1974 entitled “Review of the role of the International Court of Justice“ which in a general way was designed to encourage states and UN organs to make greater use of the Court. 29 GAOR, Supp. (No. 31) 141, UN Doc. A/9631 (1974). In paragraph 6 the Assembly “reaffirms that recourse to judicial settlement of legal disputes, particularly referral to the International Court of Justice, should not be regarded as an unfriendly act.” “Referral” in this context cannot mean anything but seising the Court by means of a unilateral application. It is difficult to escape the impression that both Turkey and the Security Council tended to regard the Greek Application as an unfriendly act which they should not have done had they heeded the Assembly resolution. For a recommendation of diplomatic and judicial procedures, see G.A. Res. 1497 (XV), October 31, I960, “The status of the German-speaking element in the Province of Bolzano (Bozen); implementation of the Paris agreement of 5 September 1946.” 15 GAOR, Supp. (No. 16) 5, UN Doc. A/4684 (1960). In that case, however, no judicial proceedings were pending before the Court. In the Special Political Committee reference was made to Article 36(3) of the Charter by the representatives of Paraguay, Liberia, and Ireland. 15 GAOR, Spec. Pol. C. at 19, 26, and 47 (1960).

47 See supra, p. 31, at notes 3 and 4 for text of the Greek request.

48 [1976] Rep. 4, para. 2. It is not clear whether provisional measures indicated by the Court under Article 41 of the Statute are binding. See Conclusions in Gross, supra note 38, at 739 and H. Lauterpacht, THE Development OF International Law By Tins International Court 110-13, 253-54 (1958). Therefore the invocation of Article 33(1) of the General Act had the object of eliminating any doubt on this score for it provides: “The parties to the dispute shall be bound to accept such measures.“

49 [1976] REP. 8, para. 19. See supra note 14.

50 Id. 8, para. 21.

51 Id. 9, para. 25.

52 Fisheries Jurisdiction case (United Kingdom v. Iceland) Interim Protection, Order of Aug. 17, 1972, [1972] ICJ REP. 12, at 16, para. 21, and Nuclear Tests case (Australia v. France), Interim Protection, Order of June 22, 1973, [1973] REP. 99, at 103, para. 20.

53 [1976] REP. 10, para. 29

54 Id. 10-11, para. 31.

55 Id. 11, para. 33.

56 Turkish Observations, 14-15, para. 20. The quoted passage is summarized by the Court in [1976] REP. 8, para. 18.

57 Id. 11, para. 33.

58 The Court does go into the question of the nature and physical effect of seismic exploration “according to the information before the Court.” Id. 10, para. 30. 6” In his Dissenting Opinion, ludge ad hoc Stassinopoulos considered “equally irreparable the prejudice caused by the gathering of information on the resources of the Greek shelf and the possibility of disclosing them [sc. information; in French original: “des renseignements“], which would raise an insurmountable obstacle to their exploitation by Greece.” Id. 37.

60 Order of July 5, 1951. [1951] ICJ REP. 89. On the question of compensation, see LAUTEHPACHT, supra note 48, at 252.

61 Order of Aug. 17, 1972. [1972] ICJ REP. 12.

62 Order of June 22, 1973. [1973] ICJ REP. 99.

63 The United States paid ex gratia compensations in the 1954 incident of the Japanese fishing boat Diago Fukurya Maru, the crew of which suffered injuries from radiation fallout. For details, see 4 Whiteman, Digest Of International Law 565 ff. (1965). In the Nuclear Tests case, the Court noted that no claim of damages was raised by Australia. [1974] ICJ REP. 270, para. 53.

64 [1976] REP. 30.

65 Id. 16.

66 Id. 29.

67 It will be recalled that the Court had decided to confine its examination of the request to Article 41. Id. 8, para. 21 and supra, p. 40.

68 [1976] REP. 6, para. 15(H).

69 Id. 11, para. 34.

70 [1951] ICJ REP. 89, at 93. See also Fisheries Jurisdiction case, [1972] ICJ REP. 17, para 1(a) of operative clause. For earlier cases, see Lauterpacht, supra note 48, at 282-83.

71 [1951] ICJ REP. 89, at 93. The Court invoked Article 61(6) of its old Rules of Procedure, now Article 66(6), which authorizes the Court to indicate interim measures proprio motu as additional basis for its indication.

72 [1976] REP. 5, paras. 6 and 9. The hearings were continued on August 26 and 27.

73 Id. 12-13, paras. 37-40. The text of the preambular paragraphs referred to in paragraph 39 of the Order is as follows: Bearing in mind 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, … Conscious of the need for the parties both 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, … \

74 Id. 13. In paragraph 43, the Court recalled Article 66(5) of its Rules of Procedure according to which a party may make a fresh request for interim measures “based on new facts.“

75 Rosenne seems to think that the Court has the power but should not exercise it in view of the availability of the political organs of the United Nations: “Nor, normally, ought this jurisdiction to be invoked to prevent ‘incidents'. That was the rationale of the decision of the Permanent Court in the Souih-Eastem Greenland case. It applies with greater force when the Court is a principal organ of the United Nations, which has other organs—the Security Council and the General Assembly— equipped, to varying degrees, with competence to prevent ‘incidents'.” Supra, note 38, at 426. This is persuasive as far as it goes but if an applicant state in a contentious proceedings also requests interim measures to prevent an aggravation of the dispute, it may well be part of the Court's judicial function to indicate such measures and not expect the applicant to appeal to the General Assembly, which may not be in session, or to the Security Council which may be prevented from taking useful action by a veto of one of its permanent members which may be in a patron-client relation to the respondent state. It seems pointless to procrastinate proceedings by referring the requesting party to Article 66(5) of the Court's Rules of Procedure.

76 Thus Judge Elias, after referring to paragraph 41 of the Ordercited supra, note 74—said: “Since this must be the main object 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.” [1976] REP. 30.

77 It will be recalled that the Court denied the Turkish request to remove the case from its list. Supra, p. 32. The Court in the operative part of its Order reserved “the fixing of time-limits for the said written proceedings [addressed to the jurisdiction of the Court], and the subsequent procedure, for further decision.” [1976] REP. 14. The time-limits were fixed by an Order of October 14, 1976, the Court fixed April 18, 1977 and October 24, 1977 for the delivery of the Greek Memorial and the Turkish Memorial, respectively. ICJ Communiqu6 No. 77/10, Oct. 14, 1976.

78 While agreeing with the Court that the seismic exploration of the shelf “does not cause, of itself and in isolation, irreparable damage” justifying the application of Article 41, he said: But I must express doubts regarding the Court's separation of the infringement of alleged Greek rights to exploration from the military measures, taken by both sides for purposes of the protection or supervision of the vessel, which involve a risk of armed conflict. I consider the military aspect not as a distinct element but simply as an aggravating circumstance additional to the basic element of continued exploration. In my view the Court should have considered that it was part of its overall responsibility to consider the situation as a whole, quite apart from its assessment of the Security Council's resolution and the reactions thereto of Greece and Turkey. [1976] REP. 26.

79 Judge Tarazi also stressed that the Court being “an integral part of the United Nations,” ought “if the circumstances so require … collaborate in the accomplishment of this fundamental mission,” namely the responsibility of the Security Council for the maintenance of peace and security, and concluded that he “would have thought it necessary to mention this resolution in the operative part.” Id. 33-34. There are apparently no limits to the consequences to be derived from the integration of the Court in the United Nations.

80 Id. 20. One cannot fail to be reminded of the legal consequences which the Court spelled out in the Nuclear Tests case with respect to the statements made by several French officials. [1974] ICJ REP. 253, at 267, paras. 43 and 269, paras. 50-52. With regard to this case, see A. Rubin, The International Legal Effects of Unilateral Declarations, supra, pp. 1-30.

81 Id. 20. The reference in the quotation is to the Haya de la Torre case in which the Court was asked to declare how its judgment in the Asylum case of November 20, 1950, should be executed.

82 In Peace Treaties case, the Court declared: The Court's Opinion is given not to States, but to the organ which is entitled to request it; the reply of the Court, itself an “organ of the United Nations”, represents its participation in the activities of the Organization, and, in principle, should not be refused. [1950] ICJ REP. 65, at 71.

83 Rosenne, The Composition of the Court in GROSS, supra note 38, at 428. The term refers to members of the Court “with a long history of personal involvement in United Nations affairs” and “who by way of experience and intellectual inclination possess an intangible psychological relationship with the United Nations.” Id. 388.

84 Sir Gerald Fitzmaurice in Enlargement of the Contentious Jurisdiction of the Court (in GROSS, supra, note 38, at 469) stresses the need to elect jurists with expertise in public international law. Experience in international affairs and other branches of law does “not furnish an adequate substitute. It cannot be a good thing for the Court that members of it have to start learning—or re-learning—their public international law after they come to it.” For comments on the suggestion of Fitzmaurice, see Institut De Droit International Livre Du Centennaire 1873-1973, at 277, 391 (Bindschedler), 391-95 (Petren), 395-96 (Reuter), 397 (Ruegger), and 400 (Rosenne) (1973). Having been a member of the Court from 1960 to 1973, Fitzmaurice speaks from experience. Rosenne maintains that the qualifications of the candidates and “the records of the judges as are apparent from their separate and dissenting opinions (the only proper source of information on this subject) will show that the exacting standards of professional qualification and competence imposed by the Statute (Article 2) are generally reached.” On the other hand, he notes that in trying to strike the balance between personal criteria and the demands of balanced geographical representation “not surprisingly perhaps, the two electoral colleges, being political organs, have come down heavily in favor of the politically directed criteria …”. GROSS, supra 382. Membership in the International Law Commission, which Rosenne lists as a factor (id. 381), is not necessarily a criterion of professional competence as the elections to this organ have also come to be dominated by political criteria and considerations of balanced geographical representation. On the subject of the composition of the Court, see also GROSS, supra, 729-30.

85 The revised Rules of Court have in fact acknowledged this trend but tried to capture it by opening up an opportunity for arbitral tribunals functioning within the framework of the Court. See E. Hambro, Will the Revised Rules of Court Lead to Greater Willingness on the Part of Prospective Clients?, in GROSS, supra, note 38, at 365-76. It is not suggested that the trend noted in the text is the only or a primary reason why states eschew recourse to the Court. On this subject, as well as possible remedies, see GROSS, supra, passim.

86 [1976] REP. 13, para. 44. The rest of the sentence is unobjectionable and reads as follows: “—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.“

87 [1972] ICJ REP. 12, at 15, para. 15 (emphasis supplied).

88 Id. 16, para. 17 (emphasis supplied).

89 [1973] ICJ REP. 99, at 102, para. 17. In the Trial of Pakistani Prisoners of War case, the Court did not refer to the basis of jurisdiction invoked by Pakistan, if there was one, and found it unnecessary to deal with the Pakistani request for provisional measures on the ground that Pakistan requested postponement of its request. Id. 328, at 330, para. 14. Nevertheless, Judge Petren, in his Dissenting Opinion, expressed the view that “the first question to which the Court should have attended was that of its own jurisdiction on the merits of the case.” Id. 334.

90 [1951] ICJ REP. 89, at 93. The Court continued that “the considerations stated in the preceding paragraph suffice to empower the Court to entertain the Request for interim measures of protection.” This case is unusual because the President of the Court addressed a telegram to the Prime Minister of Iran on June 23, 1951, the day after receiving the British request, suggesting that no measures be taken which might impede the execution and eventual judgment or aggravate the dispute. The hearing in this case was held on June 30. Id. 91 and 92.

91 Id. 96. These two judges, elaborating the cited statement, pointed out that the text of Article 41 presupposes the competence of the Court, inasmuch as there must be “proceedings” and “parties” within the meaning of the Statute. The Court need not pronounce “finally” on its jurisdiction “but the Court must consider its competence reasonably probable,” and “its opinion on this point should be reached after a summary consideration.” Id. 96 and 97. The judges rejected any presumption in favour of the Court's power by pointing out that under Article 41 the power of the Court is not unconditional and that generally speaking We find it difficult to accept the view that if prima facie the total lack of jurisdiction of the Court is not patent, that is, if there is a possibility, however remote, that the Court may be competent, then it may indicate interim measures of protection. This approach, which also involves an element of judgment, and which does not reserve to any greater extent the right of the Court to give a final decision as to its jurisdiction, appears however to be based on a presumption in favour of the competence of the Court which is not in consonance with the principles of international law. In order to accord with these principles, the position should be reversed: if there exist weighty arguments in favour or the challenged jurisdiction, the Court may indicate interim measures of protection; if there exist serious doubts or weighty arguments against this jurisdiction such measures cannot be indicated. Id. 97. For argument against the probability test, see Lautehpacht, supra note 48, at 255, particularly nn. 41 and 42.

92 [1957] ICJ REP. 105, at 110.

93 Id. 111. The Court also said that the decision given under Article 61 of Rules of Court—Article 66 of the revised Rules—does not prejudge the question of jurisdiction on the merits.

94 Id. 118-19 (emphasis in the original). See also lauterpacht, supra note 48, at 111-12 for an identical statement, and also id. at 255.

95 [1957] ICJ REP. 119 and also at 120.

96 Id. 120. Some of the material presented here is contained in the Turkish Observations at 5-8. Turkey argued that the Court lacked prima facie jurisdiction because the General Act was no longer in force and the Brussels Agreement did not constitute a commitment to submit the dispute to the Court without a special agreement. Id. 8-9.

97 [1976] REP. 15-16. As a further reason for declining the request the Court relied on the action taken by the Security Council.

98 Id. 24. The link between jurisdiction on merits and provisional measures was developed persuasively by Judges Winiarski and Badawi Pasha in their Dissenting Opinion in the Anglo-Iranian Oil Company case where the link was stretched by the Court to the breaking point. In view of the confusion reflected in the present case, it seems worthwhile to quote their statement: In international law it is the consent of the parties which confers jurisdiction on the Court; the Court has jurisdiction only in so far as that jurisdiction has been accepted by the parties. The power given to the Court by Article 41 is not unconditional; it is given for the purposes of the proceedings and is limited to those proceedings. If there is no jurisdiction as to the merits, there can be no jurisdiction to indicate interim measures of protection. Measures of this kind in international law are exceptional in character to an even greater extent than they are in municipal law; they may easily be considered a scarcely tolerable interference in the affairs of a sovereign State. For this reason, too, the Court ought not to indicate interim measures of protection unless its competence, in the event of this being challenged, appears to the Court to be nevertheless reasonably probable. Its opinion on this point should be reached after a summary consideration; it can only be provisional and cannot prejudge its final decision, after the detailed consideration to which the Court will proceed in the course of adjudicating on the question in conformity with all the Rules laid down for its procedure. [1951] ICJ REP. 97. Rosenne affirmed “that there is no essential interconnexion“ between the jurisdiction of the Court under Article 41 and its jurisdiction on the merits, but concludes as follows: “Having regard to the exceptional power which this jurisdiction [under Art. 41] involves, it may be arguable that it ought to be more closely integrated with the principal jurisdiction to deal with the case on the merits then it now is.” Supra, note 38, at 428. See also Briggs, The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction, in K. Zmanek ( e d . ) , Völkerrecht And Rechtliches Weltbild. Festschrift Für Alfred Verdross 87, at 92 ff. (1960). In his view, states by becoming parties to the Statute have consented to the incidental jurisdiction of the Court of which Article 41 is a part. Id. 93 f.

99 [1976] REP. 17. Judge Nagendra Singh would require a more exacting degree of jurisdiction for the indication of measures than “prima facie” jurisdiction or “no manifest lack” of it. “The acid test,” in his view, “of the Court's competence … is that the judgment must be within clear prospect.“

100 Id. 27.

101 Id. 19.

102 See supra, p. 50 at note 94.

103 [1976] REP. 23.

104 Id. 25. In order fully to understand Judge Mosler's point, it may be useful to quote his “attempted definition of the criteria of a positive prima facie test” which is as follows: In view of the provisional character of the requested Order and bearing in mind that it in no way prejudges the decisions to be taken in the forthcoming proceedings, it is in my view sufficient that the Court, when it actually indicates interim measures, should have reached the provisional conviction, based on a summary examination of the material before it (including written observations of a party not represented) and subject to any objections which may be raised in subsequent proceedings, that it has jurisdiction on the merits of the case. Id. 24. See also Judge Lauterpacht's view, supra, at note 95.

105 Id. 32.

106 These cases are summarized, supra, p. 42. Referring to this practice in which he participated, Judge Morozov pointed out that 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.” [1976] REP. 22.

107 Id. 21.

108 Id. 6, para. 13.

109 Id. 22. It may be of interest to note that Judge Gros participated in the Order in the present case although in his Dissenting Opinion in the Nuclear Tests case he argued strongly that it was not “in accordance with the rules of procedure to suspend the application of Article 53 provisionally in the present case on the ground that this is an interim measures phase.” [1973] ICJ REP. 99, at 117. It may be that Article 53 could be suspended if the Court declined to indicate the requested measures and to that extent his earlier emphatically expressed view may appear to be modified.

110 [1976] REP. 39.

111 Id. 29. See supra, p. 42.

112 See supra, note 77 for the time-limits fixed for the filing of written pleadings.

113 The doctrine is discussed by Rosenne, supra, note 38, at 344-63.

114 [1947-48] ICJ REP. 17 and 1 Corfu Channel Case, ICJ Pleadings 8 (1947).

115 [1947-48] ICJ REP. 19 and 46. Albania reiterated its reservations but also appointed its Agent. Ibid. The full text of Albania's letter is in 2 Pleadings 25 (1947).

116 [1947-1948] ICJ REP. 20. For the full text of the Order, see id. 4.

117 l Pleadings 20 (1947).

118 [1947-48] ICJ REP. 20-23.

119 See the statement by the representative of Albania, Vochoc in 3 Pleadings 48 (1947).

120 “Even if (which is not admitted) there was any formal irregularity in the mode of commencement of the present proceedings, this irregularity has been cured, because the Albanian Government by its letter of 2nd July, 1947, has waived any possible objection and has consented to the jurisdiction of the Court. An irregularity in the manner in which a case is introduced may be cured by subsequent events …“ [1947-48] ICJ REP. 24 (emphasis supplied).

121 Id. This theme, that Albania was trying to go back on its acceptance, was elaborated by Sir Hartley Shawcross in the hearings. See 3 Pleadings 56, 76, 154 (1947).

122 Rejecting the Albanian assumption that “the institution of proceedings by application is only possible where compulsory jurisdiction exists and that, where it does not, proceedings can only be instituted by special agreement,” the Court declared: This is a mere assertion which is not justified by either of the texts cited. Article 32, paragraph 2, of the Rules does not require the Applicant, as an absolute necessity, but only “as far as possible,” to specify in the application the provision on which he founds the jurisdiction of the Court. It clearly implies, both by its actual terms and by the reasons underlying it, that the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction. [1947-48] ICJ Rep. 27.

123 Id. 27-28. The Court went on to quote from Judgment No. 12, of April 26, 1928 in the Minority Schools in Upper Silesia case of the PCIJ: The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement. See 2 Hudson, World Court Reports 284 (1935).

124 It may be recalled that the outcome must have appeared sufficiently doubtful to both parties because they did conclude a special agreement in which Albania was able to include a complaint against the United Kingdom relating to the “Operation Retail” on which the Court gave judgment in favor of Albania. [1949] ICJ REP. 4 at 36.

125 There follow citations to Articles 1(1) and 36(3) of the Charter.

126 Anglo-Iranian Oil Company case, Pleadings 8, at 17-18 (1951).

127 Id. 281. In the author's translation: There can be no question here of a counter-memorial which could be construed as completing the procedure before the Court, rather it is intended for the sole purpose of rejecting the Memorial of the British Government dated October 10, 1951, and is limited exclusively to the jurisdiction of the Court. It is interesting to note that Iran characterized the nationalization of the Company as “an act of national liberation.” Id. 306

128 It is pertinent to cite in this context the following statement from the Dissenting Opinion of Judges Winiarski and Badawi Pasha: There are certainly cases in which the objection to the jurisdiction is regarded as a mere ground of defence, and in which the party overruled in its objection continues to take part in the proceedings. But in this case the facts are quite different. Iran affirms that it has not accepted the jurisdiction of the Court in the present matter and that it is in no way bound in law; it has refused to appear before the Court and has put forward reasons for its attitude. The Court ought therefore to decide, in a summary way and provisionally, for the purpose of arriving at the decision which it must take on the question of interim measures of protection, which is the more probable of the two conclusions which it may finally come to on the question of its jurisdiction. [1951] ICJ REP. 98.

129 [1952] REP. 93, at 111. For the prediction, see [1951] ICJ REP. 98. An attempt by the United Kingdom to apply the doctrine of forum prorogatum to certain submissions by Iran was firmly rejected by the Court in holding: The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involved an element of consent regarding the jurisdiction of the Court… . It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran's Objection to the jurisdiction were rejected. [1952] ICJ REP. 101, at 113-14. See ROSENNE, supra note 38, at 360-61.

130 Turkish Observations 2, para. 5.

131 “Nevertheless, so that the Court may be informed that, in the view of the Turkish Government, the Greek request is without merit, Turkey is submitting the present observations without commitments.” Ibid.

132 Id. 1, para. 2.

133 Rosenne, supra, note 38, at 348.

134 After reviewing the relevant cases and their aftermath, Rosenne concludes: “No doubt the connexion between these instances of the failure of the judicial process and the doctrine of forum prorogatum is purely fortuitous. Nevertheless, hesitation over the practical wisdom of the Court's attitude is necessarily strong and, so far, unresolved.“ Id. 363. It may be added that this hesitation has been reinforced by the Court's jurisprudence in more recent years.

135 This point was made by Sir Hartley Shawcross, who reviewing the alternatives open to Albania, stated: The second course was that the Government of Albania might have appeared and objected to the jurisdiction—appearing only in order to argue its objection on the grounds of competence; not submitting itself to the jurisdiction of the Court at all, but appearing before the Court in order to argue that the Court was not competent. Clearly that course was open to the Government of Albania if it chose to take it. 3 Corfu Channel case, ICJ Pleadings 56 (1947).

136 Supra, p. 50, at note 94.

137 [1973] ICJ REP. 102, para. 15.

138 Turkish Observations 10, para. 16.

139 Id. 10-12, and supra, note 14

140 [1973] ICJ Rep. 102, para. 15.