AEGEAN SEA CONTINENTAL SHELF CASE order of 11 sep 1976.docx

7/28/2019 AEGEAN SEA CONTINENTAL SHELF CASE order of 11 sep 1976.docx

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Marasiga, Mary Remie Jane T.

2H

AEGEAN SEA CONTINENTAL SHELF CASE

(GREECE V. TURKEY)

REQUEST FOR THE

INDICATION OF

INTERIM MEASURES OF PROTECTION

ORDER OF 11 SEPTEMBER 1976

I. Factual Background

The Government of Greece instituted proceedings against Turkey in respect of adispute concerning the delimitation of the continental shelf appertaining to Greece and

Turkey in the Aegean Sea and concerning the legal rights of those States to explore and

exploit the continental shelf of the Aegean. The Government of Greece, relying on

Article 33 of the General Act of 1928 for the Pacific Settlement of International Disputes

and on Article 41 of the Statute and Article 66 of the Rules of Court, asks the Court to

indicate, pending the final decision in the case brought before it by the Application of

the same date, the following interim measures of protection, of which both Greece and

Turkey shall: (1) unless with the consent of each other and pending the final judgment

of the Court in this case, refrain from all exploration activity or any scientific research,

with respect to the continental shelf areas within which Turkey has granted such

licenses or permits or adjacent to the Islands, or otherwise in dispute in the present case

and (2) refrain from taking further military measures or actions which may endanger

their peaceful relations.


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The rights which Greece submits as entitled to protection by indication of interim

measures are as follows: (1) sovereign rights of Greece for the purpose of researching,

exploring and exploiting the continental shelf appertaining to Greece are exclusive in

the sense that if Greece does not undertake research on the continental shelf or explore

it or exploit its natural resources, no-one may undertake these activities, or make a

claim to the said continental shelf, without the express consent of Greece, (2) the right of

Greece to the performance by Turkey of its undertakings abstain from al1 measures

likely to react prejudicially upon the execution of any judicial decision given in these

proceedings and to abstain from any sort of action whatsoever which may aggravate or

extend the present dispute between Greece and Turkey and (3) all rights appertaining

to Greece under or in consequence of the final decision of the Court in the present

proceedings. The Turkish Government suggested that the Greek request for interim

measures be dismissed for lack of jurisdiction and asked the Court to remove the casefrom the list.

The Government of Greece alleges that following the granting by Turkey in 1973

of permits to the Turkish State Petroleum Company (TPAO) for exploration for

petroleum covering an area which encroached upon the continental shelf claimed by

Greece, an announcement was made concerning researches which would be undertaken

by the Turkish seismic research vessel MTA Sismik I in the Turkish territorial sea and in

the high seas. It was stated by officia1 Turkish sources that the vessel would not be

accompanied by warships but that nevertheless all necessary measures would be taken

so as to detect immediately any attack against the vessel and to respond

instantaneously in case of any such attack. Greece contends that the activities of the

Turkish vessel constitute infringements of the exclusive sovereign rights of Greece to

the exploration and exploitation of the continental shelf appertaining to Greece.

II. Doctrines

Power to indicate interim measures has as its object the preservation of rights


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Power to indicate interim measures presupposes that irreparable injury shouldnot be caused to rights subject of the dispute

The Court has to determine first if it has independent power to indicate interimmeasures

III. Discussion

Power to indicate interim measures has as its object the preservation of rightsthe power of the Court to indicate interim measures under Article 41 of the Statute

has as its object to preserve the respective rights of either party pending the decision of

the Court; and whereas, in the present case, this power relates essentially to the

preservation of the rights which are invoked in Greece's Application (par 22, page 9)

it is essentially the preservation of those alleged rights of exploration and

exploitation which concerns the Court in examining the present request for the

indication of interim measures of protection (par 23, page 9)

Power to indicate interim measures presupposes that irreparable injury shouldnot be caused to rights subject of the dispute

the power of the Court to indicate interim measures under Article 41 of the Statute

presupposes that irreparable prejudice should not be caused to rights which are the

subject of dispute in judicial proceedings and that the Court's judgment should not be

anticipated by reason of any initiative regarding the matters in issue before theCourt (par 25, page 9)

the continued Turkish seismic exploration in the disputed areas constitutes a threat

of irreparable prejudice to the rights claimed by Greece in its Application; that it


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threatens to prevent the full restoration of those rights to Greece in the event of its

claims being upheld by the Court; and that the Court's power to indicate interim

measures ought to be exercised when "the parties' rights might not be restored in full

measure in the event of a judgment if that judgment is anticipated (par 27, page 9-

10)

the possibility of such a prejudice to rights in issue before the Court does not, by

itself, suffice to justify recourse to its exceptional power under Article 41 of the Statute

to indicate interim measures of protection; whereas, under the express terms of that

Article, this power is conferred on the Court only if it considers that circumstances so

require in order to preserve the respective rights of either Party; and whereas this

condition, as already noted, presupposes that the circumstances of the case disclose therisk of an irreparable prejudice to rights in issue in the proceedings (par 32, page 11)

the alleged breach by Turkey of the exclusivity of the right claimed by Greece to

acquire information concerning the natural resources of areas of continental shelf, if it

were established, is one that might be capable of reparation by appropriate means; and

whereas it follows that the Court is unable to find in that alleged breach of Greece's

rights such a risk of irreparable prejudice to rights in issue before the Court as mightrequire the exercise of its power under Article 41 of the Statute to indicate interim

measures for their preservation (par 33, page 11)

The Court has to determine first if it has independent power to indicate interimmeasures

independently of its request regarding the preservation of its rights, Greece

requested the Court during the public sittings to indicate interim measures of protection

in order to prevent the aggravation or extension of the dispute; whereas, before this

request could be entertained, the Court would have to determine whether, under


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Article 41 of the Statute, the Court has such an independent power to indicate interim

measures having that object (par 36, page 12)

it is not necessary for the Court to decide the question whether Article 41 of the

Statute confers upon it the power to indicate interim measures of protection for the sole

purpose of preventing the aggravation or extension of a dispute (par 42, page 13)

a decision of the Court not to exercise its power under Article 41 of the Statute to

indicate interim measures of protection "shall not prevent the party which has made [a

request] from making a fresh request in the same case based on new facts (par 43,

page 13)

IV. Voting

Court finds by 12 votes to 1 that the circumstances, as they now presentthemselves to the Court, are not such as to require the exercise of its power under

Article 41 of the Statute to indicate interim measures of protection

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

Reserves the fixing of the time-limits for the said written proceedings and thesubsequent procedure, for further decision

Documents

AEGEAN SEA CONTINENTAL SHELF CASE order of 11 sep 1976.docx