INTERNATIONAL COURT OF JUSTICE
YEAR 1978
19 December 1978
AEGEAN SEA CONTINENTAL SHELF CASE (GREECE v. TURKEY) JURISDICTION OF THE COURT
Pursuit of negotiations during judicial proceedings no impediment to exercise of jurisdiction—Existence of legal dispute.
Jurisdiction of the Court—Question of applicability of 1928 General Act for Pacific Settlement of International Disputes and relevance of reservation in Applicant’s instrument of accession—Reciprocal enforcement of the reservation in the procedural circumstances of the case.
Interpretation of reservation— Whether single reservation or two distinct and autonomous reservations—Grammatical interpretation—Intention of reserving State having regard to the context—Generic meaning of term “disputes relating to territorial status”—Scope follows evolution of the law—Present dispute regarding entitlement to and delimitation of continental shelf areas relates to territorial status of Greece.
Joint communique issued by Heads of Government as basis ofjurisdiction—Question of form not conclusive—Interpretation in the light of the context.
JUDGMENT
1978 19 December General List No. 62
Present: President Jimenez de Arechaga; Vice-President NagEndra Singh; Judges Forster, Gros, Lachs, Dillard, dp Castro, Morozov, Sir Humphrey Waldock, Ruda, Mosler, Eli as, Tarazi; Judge ad hoc stassinopoulos; Registrar Aquarone.
In the case concerning the Aegean Sea continental shelf. between the Hellenic Republic, represented by
H.E. Mr. Sotirios Konstantopoulos, Ambassador of Greece to the Netherlands, as Agent, assisted by
Mr. Constantin Economides, Legal Adviser and Head of the Legal Department of the Greek Ministry of Foreign Affairs, as Agent, advocate and counsel,
Mr. D. P. O’Connell, Q.C., Member of the English Bar, Chichele Professor of
Public International Law in the University of Oxford, Mr. Roger Pinto, Professor in the Faculty of Law and Economics, University of Paris,
Mr. Paul De Visscher. Professor in the Faculty of Law, University of Louvain,
Mr. Prosper Weil, Professor in the Faculty of Law and Economics, University of Paris,
Mr. Dimitrios Evrigenis, Dean of the Faculty of Law and Economics, University of Thessaloniki, as advocates and counsel,
Mr. Emmanuel Roucounas, Professor in the Faculty of Law, University of
Athens, as advocate and counsel, and by
Mr. Christos Macheritsas, Special Counsellor, Legal Department of the Greek
Ministry of Foreign Affairs, as expert adviser,
and
the Republic of Turkey,
Thf. Court,
composed as above,
delivers the following Judgment:
appertaining to Greece and Turkey in the Aegean Sea, and the rights of the parties thereover. In order to found thejurisdiction of the Court, the Application relied on, firstly, Article 17 of the General Act for the Pacific Settlement of International Disputes of 1928, read together with Article 36, paragraph 1, and Article 37 of the Statute of the Court; and secondly, a joint communique issued at Brussels on 31 May 1975, following an exchange of views between the Prime Ministers of Greece and Turkey.
in the Application:
“The Government of Greece requests the Court to adjudge and
declare:
(i) that the Greek islands referred to in paragraph 29 [of the Application], as part of the territory of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law;
(ii) what is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea;
(iii) that Greece is entitled to exercise over its continental shelf sovereign and exclusive rights for the purpose of researching and exploring it and exploiting its natural resources;
(iv) that Turkey is not entitled to undertake any activities on the Greek continental shelf, whether by exploration, exploitation, research or otherwise, without the consent of Greece;
(v) that the activities of Turkey described in paragraphs 25 and 26 [of the Application] constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf or to authorize scientific research respecting the continental shelf;
(vi) that Turkey shall not continue any further activities as described above in subparagraph (iv) within the areas of the continental shelf which the Court shall adjudge appertain to Greece.”
in the Memorial:
“… the Government of Greece requests the Court to adjudge and declare that, whether, on the basis of Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read with Articles 36, paragraph 2, and 37 of the Statute of the Court, or on the basis of the joint communique of Brussels dated 31 May 1975, the Court is competent to entertain the dispute between Greece and Turkey on the subject of the delimitation of the continental shelf appertaining to the two countries in the Aegean Sea”.
“The Government of Greece submits that the Court be pleased to declare itself competent to entertain the dispute between Greece and Turkey on the delimitation of the respective areas of continental shelf appertaining to either country in the Aegean.”
15. It is to be regretted that the Turkish Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings and the Court has thus not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. Nevertheless, the Court, in accordance with its Statute and its settled jurisprudence, must examine proprio motu the question of its own jurisdiction to consider the Application of the Greek
Government. Furthermore, in the present case the duty of the Court to make this examination on its own initiative is reinforced by the terms of Article 53 of the Statute of the Court. According to this provision, whenever one of the parties does not appear before the Court, or fails to defend its case, the Court, before finding upon the merits, must satisfy itself that it has jurisdiction. Before proceeding further, however, the evolution of the main events leading to the bringing of this dispute before the Court must be outlined.
18. On 27 January 1975 the Greek Government proposed to the Turkish Government that the differences over the applicable law as well as over the substance of the matter be referred to the International Court of Justice, and it stated that, without prejudice to its right to initiate Court proceedings unilaterally, it saw considerable advantages in reaching jointly with the Turkish Government a special agreement for reference to the Court. On 6 February 1975 the Turkish Government answered expressing the hope that the Government of Greece would “agree, with priority, to enter into negotiations … on the question of the Aegean Sea continental shelf”, adding that in principle it considered favourably the proposal to refer the dispute jointly to the Court. To this effect it proposed talks between the two Governments at ministerial level. On 10 February 1975 the Greek Government agreed that talks should be held in order to draft the terms of a special agreement.
21. In a Note of 18 November 1975 the Turkish Government disputed this interpretation and invited the Greek Government to conduct meaningful negotiations for an agreed equitable settlement, as well as for consideringjoint submission of unresolved but well-defined legal issues, if necessary, to the Court. In a Note of 19 December 1975 the Greek
Government expressed the view that since negotiation was in any case necessary in order to proceed with the drafting of the special agreement, it was understood that if in the course of that negotiation proposals were made for the elimination of points of disagreement concerning delimitation, those proposals would be given appropriate consideration. In accordance with the views expressed in the above communications, meetings of experts took place in Berne from 31 January to 2 February and on 19 and 20 June 1976, but no agreement was reached.
22. On 13 July 1976 a Turkish Government press release was issued concerning researches that would be undertaken by the Turkish seismic research vessel Mta-Sismik I in the Turkish territorial sea and the high seas, and in a statement on Turkish radio on 24 July 1976 the Turkish Foreign Minister indicated that these researches would be carried out in the areas of the Aegean claimed by Turkey, and could extend to all areas of the Aegean outside the territorial waters of Greece. When the vessel pursued its researches into areas where, in the view of the Greek Government, the continental shelf appertains to Greece, that Government made a diplomatic protest to the Turkish Government in a Note Verbale dated 7 August 1976, and on 10 August 1976 referred the matter simultaneously to the International Court of Justice and to the Security Council.
23. On 25 August 1976 the Security Council adopted resolution 395 (1976) to which the Court has referred in its Order of 11 September 1976. The operative part of the Security Council resolution called on the two Governments “to resume direct negotiations over their differences” and appealed to them “to do everything within their power to ensure that this results in mutually acceptable solutions” (para. 3). Paragraph 4 of this resolution invited:
“… 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 that they may identify in connection with their present dispute”.
24. While the present case was pending before the Court, Greece and Turkey resumed their negotiations, in accordance with the Security Council resolution. Their Ministers for Foreign Affairs met in New York on 1 October 1976 and agreed that the question of the delimitation of the Aegean continental shelf should be the subject of negotiations between the two Governments with the aim of reaching a mutually acceptable settlement. There followed a meeting in Berne between representatives of the two Governments from 2 to 11 November 1976, which outlined the procedure for future negotiations. It was also agreed that the negotiations would be confidential.
25.The subsequent meeting of Ministers for Foreign Affairs of the two States in Brussels ended in a Joint Communique published on 11 December 1976 which expressed satisfaction with the previous meeting in Berne. At their next meeting on 29 January 1977 at Strasbourg, the two Ministers for Foreign Affairs exchanged views on the subject of the negotiations relating to the question of the continental shelf which were to begin in London on 31 January 1977. The Ministers met again at Strasbourg on 28 April 1977 and decided to continue negotiations on the subject of the delimitation of the continental shelf, fixing a meeting of their experts, which took place in Paris at the beginning of June 1977. Again on 9 December 1977 the Ministers agreed in Brussels that there should shortly be a meeting of the experts on the question of the continental shelf. This meeting took place in Paris in mid-February 1978.
26.The Prime Ministers of Greece and Turkey met at Montreux on 10-11 March 1978 and at Washington on 29 May 1978; they decided that a meeting between the Secretaries-General of the Foreign Ministries of Greece and Turkey should take place in Ankara on 4-5 July 1978. These officials, after their meeting in July, decided to meet again in Athens in September 1978. In Athens they agreed that “the bilateral talks related to the continental shelf question should be resumed at the appropriate level on or about the 1 of December 1978”.
27. In his letter of 24 April 1978 to the Registrar, the Ambassador of Turkey to the Netherlands stated inter alia:
“It should, in the view of the Government of Turkey, be recalled that that Application was filed although the two Governments had not yet begun negotiations on the substantive issue, as is clearly apparent from the contents of the Notes exchanged by the two Governments. It was however always contemplated between them that they would seek, through meaningful negotiations, to arrive at an agreement which would be acceptable to both parties.”
The letter recalled that the Security Council, by its resolution 395 (1976), called upon both Governments “to settle their problems primarily by means of direct negotiations in order that these might result in mutually acceptable solutions”. It argued that it was in pursuance of that resolution that the Berne Agreement of 11 November 1976 provided in Article 1 that:
“The two Parties agree that the negotiations shall be frank, thoroughgoing and pursued in good faith with a view to reaching an agreement based on their mutual consent with regard to the delimitation of the continental shelf as between themselves.”
28.After recalling the 10-11 March 1978 meeting at Montreux between the Prime Ministers, the letter claimed that:
“The necessary conditions for the conduct of frank and serious negotiations, and the spirit which should motivate the parties concerned, with a view to the settlement of their problems by such negotiations, are not reconcilable with the continuation of international judicial proceedings.”
Furthermore, in a Note Verbale to the Greek Government of 29 September 1978 concerning the Greek request for a postponement of the beginning of the oral proceedings in the case, the Turkish Government objected to the postponement, and expressed the opinion that:
“… the discontinuance of the proceedings and the removal of the case from the list of the International Court of Justice would be more conducive to the creation of a favourable political climate for an agreed settlement”.
30.The above-mentioned observations of the Turkish Government might also be interpreted as making the point that there is no dispute between the parties while negotiations continue, so that the Court could not for that reason be seised of jurisdiction in this case. As the Court recognized in its Order of 11 September 1976, the existence of a dispute can hardly be open to doubt in the present case. Counsel for Greece correctly stated that there is in fact a double dispute between the parties:
“There is a dispute about what the continental shelf boundaries in the Aegean Sea should be, and there is a dispute as to the method whereby this first dispute should be settled-whether by negotiation alone or by submission to a tribunal competent to exercisejurisdiction in the matter, either following upon negotiations or even in the absence of them.”
31. Again, in the Turkish Ambassador’s letter of 24 April 1978, the further argument is advanced that the dispute between Greece and Turkey is “of a highly political nature”. But a dispute involving two States in respect of the delimitation of their continental shelf can hardly fail to have some political element and the present dispute is clearly one in which “the parties are in conflict as to their respective rights”. Greece has asked the Court to pronounce on its submissions “in accordance with the … principles and rules of international law”. Turkey, for its part, has invoked legal grounds in reply to the Greek claim, such as the existence of “special circumstances”. It is clear from the submissions in the Greek Application and Memorial, as well as in the observations in the various Turkish diplomatic communications to Greece, that Greece and Turkey are in conflict as to the delimitation of the spatial extent of their sovereign rights over the continental shelf in the Aegean Sea. Thus there are certain sovereign rights being claimed by both Greece and Turkey, one against the other and it is manifest that legal rights lie at the root of the dispute that divides the two States. The Court therefore finds that a legal dispute exists between Greece and Turkey in respect of the continental shelf in the Aegean Sea.
33.The first basis of jurisdiction is formulated in paragraph 32 (1) of the Application as follows :
“Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Respectively on 14 September 1931 and 26 June 1934, Greece and Turkey acceded to this instrument, which is still in force for both of them. The texts of these accessions were accompanied by declarations which are irrelevant to the present case.”
“All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice.”
The Article thus provides, under certain conditions, for the reference to the former Permanent Court of International Justice of disputes with regard to which the parties are in conflict as to their respective rights. Article 37 of the Statute of this Court, however, states that:
“Whenever a treaty or convention in force provides for reference of a matter to … the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”
The effect of that Article, as this Court emphasized in the Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, case (I.C.J. Reports 1964, at pp. 31-39) is that, as between parties to the Statute, this Court is substituted for the Permanent Court in any treaty or convention in force, the terms of which provide for reference of a matter to the Permanent Court. Accordingly any treaty or convention providing for reference of any matter to the Permanent Court is capable as between the parties to the present Statute of furnishing a basis for establishing the Court’s jurisdiction in regard to a dispute, on condition that the treaty or convention applies to the particular matter in question and is in force as between the parties to that dispute. Clearly, Article 17 of the General Act of 1928, here invoked by Greece, contains a jurisdictional clause which does provide for reference to the Permanent Court of certain specified matters, namely, “all disputes with regard to which the parties are in conflict as to their respective rights”. It follows that, if the 1928 Act is considered to be a convention in force between Greece and Turkey and applicable to the “matter” which is the subject of the present dispute, the Act, read in combination with Article 37, and Article 36, paragraph 1, of the Statute, may suffice to establish the Court’s jurisdiction in the present case.
35. The General Act came into force in accordance with its terms on 16 August 1929, and Greece became a party to the Act by depositing an instrument of accession on 14 September 1931, subject to certain reservations. Turkey likewise became a party to the Act by depositing an instrument of accession on 26 June 1934 which, also, was subject to certain reservations. In consequence, the General Act undoubtedly became a convention in force as between Greece and Turkey on the ninetieth day following the deposit of Turkey’s instrument of accession, in accordance with Article 44, paragraph 2, of the Act; nor is there any record of either Greece or Turkey having notified the Secretary-General, in conformity with Article 45, paragraph 3, of its denunciation of the Act. The Greek Government maintains that, in these circumstances, the General Act must be presumed to be still in force as between Greece and Turkey, in virtue of paragraph 2 of Article 45, under which the Act is expressed to remain in force for “successive periods of five years in the case of Contracting Parties which do not denounce it at least six months before the expiration of the current period”. It further maintains that neither the reservations in Greece’s own instrument of accession nor those in the Turkish instrument have any relevance to the present dispute, and that Article 17 of the General Act accordingly constitutes a valid basis for the exercise of the Court’s jurisdiction in the present case under Article 36, paragraph 1, of the Statute.
36. The Turkish Government, on the other hand, in the observations which it transmitted to the Court with its letter to the Registrar of 25 August 1976, contested the Greek Government’s right to invoke Article 17 of the General Act in the present case on both counts. It there took the position that the General Act is no longer in force and that, whether or not the General Act is in force, it is inapplicable as between Greece and Turkey. In this connection, the Turkish Government has emphasized “that at no time during the exchanges of documents and discussions concerning the continental shelf areas of the Aegean Sea has any Greek representative
made any mention of the General Act of 1928″.
*
37. In 1948, the General Assembly of the United Nations undertook a study of the text of the General Act of 1928 with a view to restoring its full efficacy, since this had been impaired in some respects as a result of the dissolution of the League of Nations and the disappearance of its organs. On 29 April 1949, the General Assembly adopted resolution 268A-III, by which it instructed the Secretary-General to prepare the text of a “Revised General Act for the Pacific Settlement of International Disputes” incorporating the amendments which it had adopted, and to hold it open to accession by States. Explaining the reasons for this instruction, the Preamble to the resolution, inter alia, stated:
” Whereas the amendments hereafter mentioned are of a nature to restore to the General Act its original efficacy;
Whereas these amendments will only apply as between States having acceded to the General Act as thus amended and, as a consequence, will not affect the rights of such States, parties to the Act as established on 26 September 1928, as should claim to invoke it in so far as it might still be operative.”
The Secretariat, in a memorandum of 4 May 1948, had provided a list of the States which up to 31 July 1946 had acceded to the 1928 Act and that list included both Greece and Turkey. The publication Multilateral treaties in respect of which the Secretary-General performs depositary functions—List of signatures, notifications, accessions, etc., as at 31 December 1977 lists Greece and Turkey.
*
38. The question of the status of the General Act of 1928 as a convention in force for the purpose of Article 37 of the Statute of the Court has already been raised, though not decided, in previous cases before the Court. In the Nuclear Tests cases Australia and New Zealand each took the position that the 1928 Act continues in force for States which have not denounced it in conformity with Article 45 of the Act, whereas France informed the Court that, as a result of the dissolution of the League of Nations, it considered the Act to be no longer in force (I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 348). Similarly, in the Trial of Pakistani Prisoners of War case, Pakistan invoked the 1928 Act as a basis for the exercise of the Court’s jurisdiction in that case, whereas in a letter to the Court, the respondent State, India, stated that the 1928 Act “is either not in force or, in any case, its efficacy is impaired by the fact that the organs of the League of Nations and the Permanent Court of International Justice to which it refers have now disappeared” (I. C.J. Pleadings, Trial of Pakistani Prisoners of War, p. 143). The Court also has cognizance of the fact that on 10 January 1974 the Secretary-General of the United Nations received a communication from the Government of the French Republic reaffirming its view as stated above, and notifying him that, with respect to any State or any institution that might contend that the General Act is still in force, the letter was to be taken as constituting a denunciation of the Act in conformity with Article 45 thereof. The Court is further aware that in a letter to the Secretary-General, received on 8 February 1974. the United Kingdom, after referring to the fact that doubts had been raised as to the continued legal force of the General Act, gave notice of its denunciation of the Act in accordance with Article 45, paragraph 2, in so far as it might be considered as still in force, and that by a notification of 15 September 1974 India informed the Secretary-General that it had never regarded itself as bound by the Act since its independence, whether by succession or otherwise. At the same time, the Court observes that a considerable number of other States, listed by the Secretary-General as at 31 December 1977 as having acceded to the Act, have not up to the present date taken steps to denounce it nor voiced any doubts regarding the status of the Act today.
39. Although under Article 59 of the Statute “the decision of the Court has no binding force except between the parties and in respect of that particular case”, it is evident that any pronouncement of the Court as to the status of the 1928 Act, whether it were found to be a convention in force or to be no longer in force, may have implications in the relations between States other than Greece and Turkey. Moreover, in the present proceedings the question has also been raised of the actual relevance of the General Act as a potential source of the Court’s jurisdiction with respect to the subject-matter of the present dispute. In paragraph 32 (1) of the Application, the text of which has already been set out in paragraph 33 above, the Greek Government itself, when invoking the General Act, drew attention to the fact that both the Greek and Turkish instruments of accession to the Act were accompanied by declarations, and categorically affirmed that these declarations “are irrelevant to the present case”. These declarations contained reservations to the Act made respectively by Greece and Turkey, which are for the most part without relevance to the present dispute. But this is not the case in regard to reservation (b) contained in the declaration which accompanied Greece’s instrument of accession; for in its observations of 25 August 1976 the Turkish Government unequivocally took the position that, whether or not the General Act is assumed to be still in force, it is subject to a clause, i.e., reservation (b), which would exclude the Court’s competence with respect to the present dispute. The Turkish Government there declared that in conformity with Article 39, paragraph 3, of the Act, “Turkey opposes reservation (b) to the Greek Application”. In its further letter to the Registrar of 24 April 1978 the Turkish Government informed the Court that it maintained its view that the Court has no jurisdiction to entertain the Greek Application for the reasons which it had explained in its earlier letter of 25 August 1976.
40. The Court is thus confronted with a situation in which, even if the General Act is to be considered a convention in force, its whole relevance as a potential source of the Court’s jurisdiction in a matter concerning a coastal State’s sovereign rights over the continental shelf is contested by the Turkish Government. Clearly, if the Turkish Government’s view of the effect of reservation (b) on the applicability of the Act as between Greece and Turkey with respect to the subject-matter of the present dispute is found by the Court to be justified, a finding on the question whether the Act is or is not a convention in force today ceases to be essential for the Court’s decision regarding its jurisdiction to entertain the present Application. As was pointed out by the Court in the Certain Norwegian Loans case, when its competence is challenged on two separate grounds, “the Court is free to base its decision on the ground which in its judgment is more direct and conclusive” (I.C.J. Reports 1957, p. 25). Accordingly, taking account of the nature of the issue raised in the present proceedings concerning the General Act, the Court will at once address itself to the effect of reservation (b) on the applicability of the Act with respect to the subject-matter of the present dispute.
*
Registrar, at the direction of the Court, informed the Turkish Ambassador to the Netherlands that his Government had the right to address to the Court in writing any observations that it might have on the Greek request. It was in these circumstances that, by its letter of 25 August 1976, the Turkish Government transmitted to the Court the document entitled “Observations of the Government of Turkey on the request by the Government of Greece for provisional measures of protection dated The Hague, 10 August 1976”. In those observations the Turkish Government specifically referred to the right conferred upon it by Article 39, paragraph 3, of the General Act to invoke Greece’s reservation (b) on the basis of reciprocity, and then stated: “In conformity with this provision, Turkey opposes reservation (b).” In the view of the Court, that formal statement, made in response to a communication from the Court, must be considered as constituting an “enforcement” of the reservation within the meaning of, and in conformity with, Article 39, paragraph 3, of the Act.
44. The Turkish Government, it is true, was not represented at the public hearings on Greece’s request for the indication of provisional measures, and did not afterwards file a preliminary objection or take any steps in the proceedings. But there is no provision in the Rules of Court which excludes the submission of written observations on a request for provisional measures; nor is there any provision which excludes the raising of questions of jurisdiction in written observations submitted in proceedings on the indication of provisional measures. On the contrary, in view of the urgency of a request for provisional measures, written communications not submitted through an agent but either directly or through the Ambassador in The Hague have invariably been admitted by the Court; while one of the very purposes of such communications has commonly been to raise questions as to the competence of the Court with respect to the particular case (Anglo-Iranian Oil Co., I.C.J. Reports 1951, p. 91; Fisheries Jurisdiction, I.C.J. Reports 1972, pp. 14 and 32; Nuclear Tests, I.C.J. Reports 1973, pp. 100 and 136-137; Trial of Pakistani Prisoners of War, I.C.J. Reports 1973, p. 329).
45. In the present case, the Turkish Government’s observations were immediately communicated to the Greek Agent, and they were referred to by counsel for Greece during the hearings concerning the request for interim measures. Indeed, counsel for Greece then expressly recognized that by reason of the title given to the document the Turkish Government had placed itself “within the context of Article 66, paragraph 8, of the Rules of Court”, adding:
“Thus, not only has an opportunity of presenting observations been given to Turkey, but Turkey has in fact, in the letter which it has sent to the Court and in the document, availed itself of that opportunity of presenting observations.”
47. In the procedural circumstances of the case it cannot be said that the Court does not now have before it an invocation by Turkey of reservation (b) which conforms to the provisions of the General Act and of the Rules of Court. Nor can it be said that the Court substitutes itself for the Turkish Government if it now takes cognizance of a reservation duly invoked in limine litis in the proceedings on the request for interim measures. It would not discharge its duty under Article 53 of the Statute if it were to leave out of its consideration a reservation, the invocation of which by the Respondent was properly brought to its notice earlier in the proceedings. It follows that the Court has now to examine the scope of reservation (b) and its application to the present dispute.
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48. The text of the reservations in Greece’s instrument of accession reads as follows :
“Sont exclus des procedures decrites par l’Acte general, sans en excepter celle de conciliation visee a son chapitre I:
a) les differends nes de faits anterieurs, soit a l’adhesion de la Grece, soit a l’adhesion d’une autre Partie avec laquelle la Grece vien- drait a avoir un differend;
b) les differends portant sur des questions que le droit international laisse a la competence exclusive des Etats et, notamment, les differends ayant trait au statut territorial de la Grece, y compris ceux relatifs a ses droits de souverainete sur ses ports et ses voies de communication.”
[Translation]
“The following disputes are excluded from the procedures described in the General Act, including the procedure of conciliation referred to in Chapter I:
(a) disputes resulting from facts prior either to the accession of Greece or to the accession of another Party with whom Greece might have a dispute;
(b) disputes concerning questions which by international law are solely within the domestic jurisdiction of States, and in particular disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication.”
designated or understood whole). Particular stress is then laid by the Greek Government on the phrases given by Robert to illustrate the use of the word notamment, in the majority of which the word is preceded by the word et, but still denotes merely a particular instance of a wider genus or category. The Greek Government also cites similar examples of this use of “et notamment” given in the Dictionnaire de I’Academie frangaise and in Littre, Dictionnaire de la langue frangaise. On the basis of this linguistic evidence, it maintains that the natural, ordinary and current meaning of this expression absolutely precludes the Greek reservation from being read as covering disputes regarding territorial status in addition to, and quite separately from, disputes regarding matters of domestic jurisdiction.
55. In any event, “the Court cannot base itself on a purely grammatical interpretation of the text” (Anglo-Iranian Oil Co., I.C.J. Reports 1952, p. 104). A number of considerations of a substantive character point decisively to the conclusion that reservation (b) in fact contained two separate and autonomous reservations. One is that the making of reservations to the General Act was expressly authorized and regulated by Article 39, which allowed only the reservations “exhaustively enumerated” in paragraph 2 of the Article, namely:
“(a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute;
(b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States;
(c) Disputes concerning particular cases or clearly specified subject- matters, such as territorial status, or disputes falling within clearly defined categories.”
When a multilateral treaty thus provides in advance for the making only of particular, designated categories of reservations, there is clearly a high probability, if not an actual presumption, that reservations made in terms used in the treaty are intended to relate to the corresponding categories in the treaty. Nor does the fact that the instrument of accession includes in a single paragraph two categories of disputes which are listed in the treaty as separate categories, by itself, in any way diminish that probability. When making reservations under the General Act, States have not, as a rule, meticulously followed the pattern of reservations set out in Article 39, paragraph 2; and they have not infrequently grouped together in one paragraph two or more reservations listed separately in the Act.
57.A further consideration is that Greece’s declaration accepting compulsory jurisdiction under the optional clause of the Statute of the Permanent Court contained a provision which, indisputably, was an autonomous reservation of “disputes relating to the territorial status of Greece”. That declaration, made on 12 September 1929, only two years before Greece’s accession to the General Act, was stated to be subject to two reservations:
“(a) disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication; (b) disputes relating directly or indirectly to the application of treaties or conventions accepted by Greece and providing for another procedure”.
It can hardly be supposed that Greece should at the same time have intended to give a scope to its reservation of “disputes relating to the territorial status of Greece” which differed fundamentally from that given to it both in the General Act and in its declaration under the optional clause. That Greece should have had such an intention seems all the more improbable in that in 1934 and again in 1939 it renewed its declaration under the optional clause without modifying in any way the form of its reservation of “disputes relating to the territorial status of Greece”.
Permanent Court there observed that the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question and depends upon “the development of international relations”. It pointed out that a matter which is not, in principle, regulated by international law and is thus a matter within the State’s domestic jurisdiction, will cease to be such if the State has undertaken obligations towards other States with respect to that matter. Consequently, and in the light of historical circumstances now to be described, it is hardly conceivable that Greece intended to reduce the scope of its “territorial status” reservation by integrating it into its “domestic jurisdiction” reservation.
60. Greece’s main preoccupation in the years following the First World War, so the Court was informed, was to guard against the revival of Bulgarian aspirations to recover direct access to the Aegean Sea which it had lost as a result of the territorial changes effected by the peace treaties. By the Treaty of Neuilly of 27 November 1919, Bulgaria had renounced all its rights and titles over areas of Thrace, but the Principal Allied and Associated Powers at the same time “undertook to ensure the economic outlets of Bulgaria to the Aegean Sea” (Art. 48). Article 4 of the Treaty of Sevres of 10 August 1920 relating to Thrace, put into force by Protocol XVI of the Lausanne Conference, provided that Greece “in order to ensure to Bulgaria free access to the Aegean Sea” recognized her freedom of transit “over the territories and in the ports assigned to Greece under the present Treaty”. The expectation that Bulgaria might seek to secure a revision of this territorial settlement was the source of Greece’s preoccupation and, also, as will be shown shortly, its motive for inserting in its declaration under the optional clause a reservation of disputes relating to its territorial status. In the present connection, however, what needs to be emphasized is that the territorial settlement, against the revision of which Greece’s “territorial status” reservation was designed to provide a safeguard, consisted essentially of a complex of rights and obligations established by treaties. Consequently, having regard to the implications of the Nationality Decrees Opinion, that territorial settlement was by its very nature one which could not legally be considered as capable of falling within the concept of questions of domestic jurisdiction. It follows that, by integrating its territorial status reservation into its reservation of questions of domestic jurisdiction, Greece would automatically have deprived itself of the protection which the former reservation would otherwise have given it against attempts to use the General Act as a means of effecting a revision of the territorial settlement established by the peace treaties.
61.This basic objection to the Greek Government’s way of interpreting reservation (b) is not removed by another suggestion made in the public hearings. This was that the series of treaties connected with the territorial arrangements and the treatment of minorities provided their own special procedures for the settlement of disputes, which had priority over those of the General Act under Article 29, so that an autonomous reservation of disputes relating to territorial status was not really indispensable to Greece. The difficulty with this suggestion, however, is that these procedures by no means covered all possible claims relating to territorial status and to rights of sovereignty over ports and lines of communication. It is true that the Treaty of Neuilly provided for recourse to the Permanent Court or to other methods of pacific settlement on questions relating to minorities and certain other matters, but special procedures were never established for the settlement of disputes concerning the parts of the Treaty dealing with Bulgaria’s economic outlet to the Aegean Sea.
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63.During the public hearings on its request for interim measures, the Greek Government submitted to the Court a document referred to by counsel as “the travauxpreparatoires of the reservation”. This was a letter addressed by M. Politis to the Greek Foreign Minister on 9 September 1928, setting out the reservations which he recommended that Greece should make to its acceptance of the Permanent Court’sjurisdiction under the optional clause. M. Politis was at that time the Rapporteur for the drafting of the General Act which was then nearing completion, and in that letter he said, inter alia:
“I think that it would be wise to safeguard ourselves against an eventual application of Bulgaria on matters related to our territorial status, to the access (of Bulgaria) to the Aegean and to the protection of Bulgarian-speaking minorities in Greece.”
He went on to suggest a possible text of a declaration to give effect to his recommendation which contained the following three reservations:
(a) disputes relating to the territorial status of Greece;
(b) disputes relating to its rights of sovereignty over its ports and lines of communication;
(c) disputes for the settlement of which the treaties signed by it provide another procedure.
64. That letter confirms in the clearest manner the Greek Government’s explanation of its motive in introducing a “territorial status” reservation into its declaration under the optional clause. But it also shows that this reservation was originally conceived of and formulated as a specific and autonomous reservation. In the actual declaration the second reservation, “disputes relating to its rights of sovereignty over its ports and lines of communication”, was tacked on to, and specifically “included” in, the first reservation of “disputes relating to territorial status”. The reason, no doubt, was that the disputes covered by the second reservation were realized to be cases of “disputes relating to the territorial status of Greece”. At any rate, this change in the presentation of the first and second reservations only served to emphasize both the generic and the autonomous character of Greece’s reservation of disputes relating to its “territorial status”. Another point which may be deduced from M. Politis’s letter is that he clearly did not think a reservation of disputes for the settlement of which treaties provided another procedure would necessarily cover all disputes relating to Greece’s “territorial status”; otherwise, he would not have recommended the inclusion of two separate, autonomous reservations to cover specifically each of these two categories of disputes.
65. In response to a question put by the Court on 9 October 1978, the Greek Government submitted certain internal documents relating to the preparation of Greece’s instrument of accession to the General Act. These documents included a first draft of theprojet de loi to be presented to the Greek Chambre des deputes for ratification of the instrument of accession, the text of the projet de loi as finally presented, and the expose des motifs explaining the projet de loi to the Chambre des deputes; all of the documents being accompanied by certified translations into the French language.
“We have judged it necessary to proceed to that accession subject to certain reservations. The latter are those enumerated in Article 2 of the projet de loi submitted, and consist, on the one hand, of the repetition of one of the two reservations we formulated when we accepted the compulsory jurisdiction of the Permanent Court—reservation (b)—the other being established in Article 29 of the Act; and, on the other hand, of the reservations enumerated in Article 39 of the Act.”
As the Greek Agent confirmed in reply to a question put by the Court, the words “the repetition of one of the two reservations which we formulated when we accepted the compulsory jurisdiction of the Permanent Court” refer unequivocally to the reservation of “territorial status” already used in Greece’s declaration under the optional clause and thus already known to the Chambre des deputes. The projet de loi was approved without discussion and without change, so that reservation (b) must be presumed to have been included in Greece’s instrument of accession on the basis of the explanations given in the expose des motifs.
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69. The Greek Government maintains that a restrictive view has to be taken of the meaning of the expression “disputes relating to the territorial status of Greece” in reservation (b) by reason of the historical context in which that expression was incorporated into the reservation. In this connection, it invokes the jurisprudence of this Court and the Permanent Court concerning the interpretation of unilateral declarations of acceptance of the Court’s jurisdiction (Anglo-Iranian Oil Co., I.C.J. Reports 1951, p. 104; Rights of Minorities in Upper Silesia, P.C.I.J., Series A, No. 15, p. 22; Phosphates in Morocco, P. C.I. J., Series A/B, No. 74, pp. 22- 24). According to this jurisprudence it is indeed clear that in interpreting reservation (b) regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time.
70. The Court has already referred to M. Politis’s letter to the Greek Foreign Minister of 9 September 1928 setting out the reservations which he recommended Greece should make to its declaration under the optional clause of Article 36 of the Statute. One of his recommendations concerned “disputes relating to the territorial status of Greece” and another “disputes relating to its rights of sovereignty over its ports and lines of communication”. The Greek Government is therefore justified in asking the Court to conclude that it was the same motive which inspired their inclusion also in reservation (b) of Greece’s accession to the General Act. It goes further, however, and asks the Court to interpret reservation (b) in the light of that motive, so as to restrict its scope to matters of territorial status connected with attempts to revise the territorial arrangements established by the peace treaties of the First World War. Moreover, in support of this interpretation of reservation (b), the Greek Government has also laid stress on the general historical context in which reservations of questions relating to territorial status had come into use in the League of Nations period.
71.Disputes concerning territorial status were expressly mentioned in Article 39, paragraph 2, of the General Act as an example of the “clearly specified subject-matters” in regard to which reservations to the Act were to be permitted. Consequently, it is reasonable to presume that there is a close link between the concepts of territorial status in the General Act and in Greece’s instrument of accession to it; and that presumption is all the stronger when it is recalled that M. Politis was the Rapporteur for the drafting of the General Act as well as the author of the letter of 9 September 1928 which prompted Greece’s recourse to a reservation under the optional clause relating to territorial status. Thus, the meaning with which the expression “territorial status” was used in Article 39 of the General Act may clearly have a bearing on its meaning in Greece’s instrument of accession.
“Everything that is known of the contemporary understanding of such terms as ‘territorial status’, ‘territorial situation’ and ‘territorial integrity’ in the 1920s indicates that these expressions are to be given a restrictive interpretation limited to the maintenance of the status quo established by treaties, normally as the result of post-war settlement.” (Emphasis added.)
73. In the view of the Court, the historical evidence may justifiably be said to show that in the period in question the motive which led States to include in treaties provisions regarding “territorial status” was, in general, to protect themselves against possible attempts to modify territorial settlements established by the peace treaties. But it does not follow that they intended those provisions to be confined to questions connected with the revision of such settlements. Any modification of a territorial “status” or “situation” or “frontier” is unpalatable to a State; and the strong probability is that a State which had recourse to a reservation of disputes relating to territorial status, or the like, intended it to be quite general. Article 39 of the General Act, it is true, was designed to regulate the formulation of reservations and to exclude vague or subjective reservations. But in making express mention of disputes relating to territorial status as an example of disputes concerning a clearly specified subject-matter, Article 39 said nothing of this example being exclusively directed against attempts to revise the territorial settlements established by the peace treaties.
74. In the opinion of the Court, the historical evidence adduced by Greece does not suffice to establish that the expression “territorial status” was used in the League of Nations period, and in particular in the General Act of 1928, in the special, restricted, sense contended for by Greece. The evidence seems rather to confirm that the expression “territorial status” was used in its ordinary, generic sense of any matters properly to be considered as relating to the integrity and legal regime of a State’s territory. It is significant in this regard that in the analysis of treaty provisions made in the Systematic Survey of Arbitral Conventions and Treaties of Mutual Security, published in 1927 by the Secretariat of the League of Nations (one of the documents used in connection with the drafting of the General Act), reservations of disputes relating to “territorial integrity”, “territorial status” and “frontiers” were examined together as having the same or a very similar meaning. The Systematic Survey of Treaties for the Pacific Settlement of International Disputes 1928-1948 prepared by the Secretariat of the United Nations and published in 1948, also groups together, under the title “Disputes relating to territorial status”, provisions concerning “territorial status”, “territorial questions”, “territorial integrity”, “present frontiers”. As to the legal writers of the League of Nations period, the Greek Government itself laid stress on the fact that they consistently linked together treaty provisions excepting questions relating to “territorial status”, “territorial integrity” and “existing frontiers”.
“had contemplated excluding any disputes concerning the spatial delimitation of State jurisdictions, they would not have failed clearly to mention the familiar category of frontier disputes rather than resort to the term of territorial status which was a very specific one in the practice of the time” (Memorial, para. 236).
In the view of the Court, the term “territorial status” in the treaty practice of the time did not have the very specific meaning attributed to it by the Greek Government. As the nature of the word “status” itself indicates, it was a generic term which in the practice of the time was understood as embracing the integrity and frontiers, as well as the legal regime, of the territory in question. This is implicit in the very wording of reservation (b) itself which treats disputes relating to Greece’s “rights of sovereignty over its ports and lines of communication” as included in its reservation of disputes relating to its “territorial status”. These disputes by their nature related to the interpretation and application of existing treaties rather than to their revision.
Greece” in reservation (b) is to be understood as a generic term denoting any matters properly to be considered as comprised within the concept of territorial status under general international law, and therefore includes not only the particular legal regime but the territorial integrity and the boundaries of a State. It is therefore in accordance with this interpretation of the words “disputes relating to the territorial status of Greece” that the Court is called on to determine whether reservation (b) does or does not have the effect of excluding the present dispute from the scope of Greece’s accession to the General Act of 1928.
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77. The Greek Government, however, has advanced a further historical argument by which it seeks to convince the Court that there can be no question of the applicability of reservation (b) with respect to the present dispute. This is that the very idea of the continental shelf was wholly unknown in 1928 when the General Act was concluded, and in 1931 when Greece acceded to the Act. It also refers in this connection to the arbitral award in the Petroleum Development Ltd. v. Sheikh of Abu Dhabi case (International Law Reports 1951, p. 144 at p. 152), where the arbitrator held that the grant of a mineral oil concession in 1939 was not to be understood as including the continental shelf. In appreciating the intention of a party to an instrument there is an essential difference between a grant of rights of exploration and exploitation over a specified area in a concession and the wording of a reservation to a treaty by which a State excludes from compulsory procedures of pacific settlement disputes relating to its territorial status. While there may well be a presumption that a person transferring valuable property rights to another intends only to transfer the rights which he possesses at that time, the case appears to the Court to be quite otherwise when a State, in agreeing to subject itself to compulsory procedures of pacific settlement, excepts from that agreement a category of disputes which, though covering clearly specified subject- matters, is of a generic kind. Once it is established that the expression “the territorial status of Greece” was used in Greece’s instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. This presumption, in the view of the Court, is even more compelling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of continuing duration, for it hardly seems conceivable that in such a convention terms like “domestic jurisdiction” and “territorial status” were intended to have a fixed content regardless of the subsequent evolution of international law.
79.Furthermore, the close and necessary link that always exists between a jurisdictional clause and reservations to it, makes it difficult to accept that the meaning of the clause, but not of the reservation, should follow the evolution of the law. In the present instance, this difficulty is underlined by the fact that alongside Greece’s reservation of disputes relating to its “territorial status” in reservation (b) is another reservation of disputes relating to questions of “domestic jurisdiction”, the content of which, as the Court has already had occasion to note, is “an essentially relative question” and undoubtedly “depends upon the development of international relations” (paragraph 59 above). Again, the Court can see no valid reason why one part of reservation (b) should have been intended to follow the evolution of international relations but not the other, unless such an intention should have been made plain by Greece at the time.
over the continental shelf in the Aegean Sea.
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81.In order to determine whether the present dispute falls within the scope of reservation (b), the Court must first clarify the question that calls for decision. The question is not, as Greece seems to assume, whether continental shelf rights are territorial rights or are comprised within the expression “territorial status”. The real question for decision is, whether the dispute is one which relates to the territorial status of Greece. Accordingly, a linguistic argument presented by the Greek Government, and based on the definitions of the words “statut” (status) and “territorial” in the Dictionnaire de la terminologie du droit international, appears to the Court to be only of marginal interest. No doubt, it is true the expression territorial status is commonly used in international law with reference to a legal condition or regime of a territory; but although the expression, as Article 39, paragraph 2, of the General Act itself indicates, denotes a category or concept covering clearly specified subject-matters, it is not an expression which can be said to have rigid legal connotations. On the contrary, the Court considers it to be a generic expression which comprises within its meanings various legal conditions and relations of territory. The answer to the question whether any given matter is properly to be considered as relating to the territorial status of a State must, therefore, depend
on the particular circumstances of the case.
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(1) whether certain Greek islands in the Aegean Sea “as part of the territory of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law”;
(2) what is “the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea”.
In maintaining that the subject-matter of the dispute embraced by Greece’s submissions does not fall within the scope of reservation (b), the Greek Government puts its case in two ways. First, it contends that the dispute concerns the delimitation of the continental shelf boundary between Greece and Turkey, and that delimitation is entirely extraneous to the notion of territorial status (Memorial, para. 236); and, secondly, it contends that, the continental shelf not being part of the territory of the coastal State under the applicable rules of international law, the present dispute regarding rights over the continental shelf cannot be considered as one relating to “territorial status”.
86. The second contention mentioned in paragraph 82 above does not put the question to be decided in its correct context. The question for decision is whether the present dispute is one “relating to the territorial status of Greece”, not whether the rights in dispute are legally to be considered as “territorial” rights; and a dispute regarding entitlement to and delimitation of areas of continental shelf tends by its very nature to be one relating to territorial status. The reason is that legally a coastal State’s rights over the continental shelf are both appurtenant to and directly derived from the State’s sovereignty over the territory abutting on that continental shelf. This emerges clearly from the emphasis placed by the Court in the North Sea Continental Shelf cases on “natural prolongation” of the land as a criterion for determining the extent of a coastal State’s entitlement to continental shelf as against other States abutting on the same continental shelf (I.C.J. Reports 1969, pp. 31 et seq.) and this criterion, the Court notes, has been invoked by both Greece and Turkey during their negotiations concerning the substance of the present dispute. As the Court explained in the above-mentioned cases, the continental shelf is a legal concept in which “the principle is applied that the land dominates the sea” (I.C.J. Reports 1969, p. 51, para. 96); and it is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law. In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State. It follows that the territorial regime-the territorial status—of a coastal State comprises, ipso jure, the rights of exploration and exploitation over the continental shelf to which it is entitled under international law. A dispute regarding those rights would, therefore, appear to be one which may be said to “relate” to the territorial status of the coastal State.
87. The particular circumstances of the present dispute have also to be taken into account. The basic question at issue, as the Court has already mentioned, is the one formulated in the first submission in the Application, and it requires the Court to decide whether certain named Greek islands in the Aegean Sea, “as part of the territory of Greece”, are entitled to a portion of continental shelf. Earlier in the Application, under the heading “The Subject of the Dispute”, it is explained that in 1974, when the Greek Government in a diplomatic Note asserted its claim to continental shelf rights in respect of these islands, the Turkish Government retorted that the islands “do not possess a [continental] shelf of their own”. The two
Governments, as appears from the Application, maintained their respective positions in the diplomatic negotiations which followed, and in a Note of 22 May 1976 the Greek Government recalled that it had emphasized as two of the fundamental legal points in the dispute: (a) “the territorial and political unity of the continental and insular parts of the Greek State”; (b) “the existence of a continental shelf appurtenant to the [Greek] islands concerned”. In the same Note, it had also recalled and rejected the Turkish Government’s reference to the islands as “mere protuberances on the Turkish continental shelf” having no continental shelf of their own. Summarizing its legal position in paragraph 29 of the Application, the Greek Government names the islands concerned and reaffirms its contention that they “are an integral part of Greek territory which is entitled to the portion of [the] continental shelf which appertains to them”. It then expressly rests its claims to continental shelf in respect of those islands upon “the territorial and political unity of Greece”.
91. In examining the application of the General Act to the present dispute, the Court has not overlooked a suggestion that the Act has never been applicable as between Turkey and Greece by reason of the existence of the Greco-Turkish Treaty of Friendship, Neutrality, Conciliation and Arbitration signed at Ankara on 30 October 1930 (League of Nations, Treaty Series, Vol. 125, No. 2841). This Treaty provided for a general system of procedures for the pacific settlement of disputes between the two countries similar to, but in some respects different from, those provided in the General Act. It entered into force by exchange of ratifications on 5 October 1931, and under Article 28 was expressed to continue in force for successive periods of five years, unless denounced. The length of these periods was extended to ten years by an “Additional Treaty” of 27 April 1938, which at the same time provided that “the mutual engagements, bilateral or plurilateral”, which the parties had contracted should “continue to produce their full effect irrespective of the provisions of the present Treaty” (League of Nations, Treaty Series, Vol. 193, No. 4493). By these Treaties and by the General Act, therefore, Greece and Turkey appear, prima facie, to have provided for two parallel systems of pacific settlement, for so long as the 1930 Treaty and the General Act might continue in force, and both Greece and Turkey have stated that they consider the 1930 Treaty still to be in force.
92. Consequently, if the question of the effect of the 1930 Treaty on the applicability of the General Act as between Greece and Turkey had called for decision in the present proceedings, the Court would have been confronted with the problem of the co-existence of different instruments establishing methods of peaceful settlement, a question discussed in the Electricity Company of Sofia and Bulgaria case (P.C.I J., Series A/B, No. 77). In that event it might also have been necessary to examine the relation between the obligations of the two States under the 1930 and 1938 Treaties and those under the General Act in the light of the pertinent provisions of those instruments-a point which was the subject of a question put by two Members of the Court during the hearings.
93.However, the fact already established by the Court that, by reason of Turkey’s invocation of reservation (b) to the Greek accession, the General Act is not applicable to the present dispute, and the fact that the 1930 Treaty has not been invoked as a basis for the Court’s jurisdiction in the present proceedings, dispense the Court from any need to enter into these questions.
94. In paragraph 32 (2) of the Application the Greek Government specified as the second basis on which it claims to establish the Court’s jurisdiction:
“The joint communique of Brussels of 31 May 1975, which followed previous exchange of views, states that the Prime Ministers of Greece and Turkey have decided that the problems dividing the two countries should be resolved peacefully ‘et, au sujet du plateau continental de la mer Egee, par la Cour internationale de La Haye’. The two Governments thereby jointly and severally accepted the jurisdiction of the Court in the present matter, pursuant to Article 36 (1) of the Statute of the Court.”
96.On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communique of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communique gives expression; and it does not settle the question simply to refer to the form—a communique—in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communique, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.
97.The relevant paragraphs of the Brussels Communique read as follows:
“In the course of their meeting the two Prime Ministers had an opportunity to give consideration to the problems which led to the existing situation as regards relations between their countries.
They decided [ont decide] that those problems should be resolved [doivent etre resolus] peacefully by means of negotiations and as regards the continental shelf of the Aegean Sea by the International Court at The Hague. They defined the general lines on the basis of which the forthcoming meetings of the representatives of the two Governments would take place.
In that connection they decided to bring forward the date of the meeting of experts concerning the question of the continental shelf of the Aegean Sea and that of the experts on the question of air space.”
98. In presenting the Communique as constituting a definitive agreement between the Prime Ministers to submit the present dispute to the Court, the Greek Government places particular emphasis on the word “decide” and the words “doivent etre resolus” in the original-French-text of the second paragraph. These words, it says, are words of “decision” and of “obligation” indicative of a mutual commitment on the part of the Prime Ministers to refer the dispute to the Court. Specifically, it claims that the “agreement” embodied in the Communique “is more than an undertaking to negotiate” and directly “confers jurisdiction on the Court” (Memorial, Part 2, Section III, Heading A). It likewise claims that the Communique “commits the parties to conclude any implementing agreement needed for the performance of the obligation” (ibid., Heading B), and that the refusal by one party to conclude such an agreement “permits the other party to seise the Court unilaterally” (ibid., Heading C). In its view, moreover, no implementing agreement is required by the Communique which, it says, “enables the parties to resort to the Court by Application no less than by special agreement” (ibid., Heading D). Finally, if it is considered that “a complementary agreement is a legal prerequisite for seisin of the Court”, it maintains that “the two parties are under obligation to negotiate in good faith the conclusion of such an agreement” (ibid., Heading E).
“… it is clear that there was no commitment to submit to the Court without a special agreement because the following paragraph said in this connection that the two Prime Ministers had decided to accelerate the meeting of the experts concerning the question of the continental shelf of the Aegean Sea” (ibid).
This means, in its view, that “priority was given to negotiations” on the substance of the question of the continental shelf, and nothing was said in that connection “even about the negotiation of a special agreement” to submit the question to the Court (ibid.). It also points to the subsequent efforts of Greece to secure the negotiation of such an agreement as confirmation of the correctness of Turkey’s interpretation of the Communique (para. 16).
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“Indeed, the Greek Government, without prejudice to their right to initiate Court proceedings unilaterally, would see considerable advantage in reaching jointly with the Turkish Government a special agreement …” (Application, Ann. II, No. 9, emphasis added.)
“However, in principle, the Turkish Government favourably considers the Greek Government’s proposal to refer the dispute over the delimitation of the Aegean continental shelf jointly to the International Court of Justice. To this effect and to elaborate the terms under which the matter shall be referred to the said Court, Turkey proposes high level talks to be initiated between the two Governments…” (Ibid., Ann. II, No. 10, emphasis added.)
On 10 February 1975, commenting on the Turkish reply, the Greek Government noted with satisfaction that “the Turkish Government accept in principle their proposal that the question of the delimitation of the continental shelf of the Aegean Sea be submitted jointly to the International Court of Justice in The Hague” (ibid., No. 11, emphasis added). It also agreed that “following suitable preparation, talks should be held in order to draft the terms of the special agreement (compromisum) required to that effect” (ibid.). This led the Turkish Prime Minister, when explaining the matter to the Turkish Grand National Assembly on 3 March 1975 to
say:
“The Greeks have answered positively to our proposal concerning talks prior to our going to The Hague. These [talks] did not start yet. The object of the talks will be the special agreement (compromis) which will define the basis of the case.” (Memorial, para. 268.)
103.Reference is made to the proceedings at the Rome meeting in a later Greek Note Verbale of 2 October 1975, from which it appears that the Greek delegation submitted a draft text of a compromis for negotiation, but the Turkish delegation said that they were not yet ready to discuss it and needed more time to prepare themselves. The meeting ended with the issue by the two Foreign Ministers on 19 May 1975 of a brief Joint Communique, which included the following statements:
“The questions relating to the continental shelf of the Aegean Sea were discussed and initial consideration was given to the text of a special agreement concerning the submission of the matter to the International Court of Justice …
It was agreed that the meetings between experts would be continued in the near future.” (Application, Ann. Ill, No. 1.)
According to the above-mentioned Note Verbale of 2 October 1975, a committee of experts was to meet at the earliest possible date “to negotiate the special agreement”, and to explore a Turkish idea in regard to joint exploitation. The Turkish Government also referred to the Rome meeting, in a Note of 18 November 1975. It there spoke of the Greek delegation having:
“… agreed to seek a negotiated settlement of the differences, bearing also in mind the Turkish proposal for joint exploration and exploitation of resources, and to try to prepare, if necessary, a draft special agreement for the joint reference to the International Court of Justice of those aspects of the situation which, they might agree, were the points of genuine disagreement between the two sides” (ibid., Ann. IV, No. 3).
105.Consequently, it is in that context-a previously expressed willingness on the part of Turkey jointly to submit the dispute to the Court, after negotiations and by a special agreement defining the matters to be decided-that the meaning of the Brussels Joint Communique of 31 May 1975 has to be appraised. When read in that context, the terms of the Communique do not appear to the Court to evidence any change in the position of the Turkish Government in regard to the conditions under which it was ready to agree to the submission of the dispute to the Court. It is true that the Communique records the decision of the Prime Ministers that certain problems in the relations of the two countries should be resolved peacefully by means of negotiations, and as regards the continental shelf of the Aegean Sea by the Court. As appears however from paragraph 97 above, they also defined the general lines on the basis of which the forthcoming meetings of the representatives of the two Governments would take place and decided in that connection to bring forward the date of the meeting of experts. These statements do not appear to the Court to be inconsistent with the general position taken up by Turkey in the previous diplomatic exchanges: that it was ready to consider a joint submission of the dispute to the Court by means of a special agreement. At the same time, the express provision made by the Prime Ministers for a further meeting of experts on the continental shelf does not seem easily reconcilable with an immediate and unqualified commitment to accept the submission of the dispute to the Court unilaterally by Application. In the light of Turkey’s previous insistence on the need to “identify” and “elucidate” the issues in dispute, it seems unlikely that its Prime Minister should have undertaken such a commitment in such wide and imprecise terms.
109. For these reasons, The Court, by 12 votes to 2,
finds that it is without jurisdiction to entertain the Application filed by the Government of the Hellenic Republic on 10 August 1976.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this nineteenth day of December, one thousand nine hundred and seventy-eight, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the Hellenic Republic and to the Government of the Republic of Turkey respectively.
(Signed) E. Jimenez de Arechaga, President. (Signed) S. Aquarone, Registrar.
Vice-President Nagendra Singh and Judges Gros, Lachs, Morozov and Tarazi append separate opinions or declarations to the Judgment of the Court.
Judge de Castro and Judge ad hoc Stassinopoulos append dissenting opinions to the Judgment of the Court.
(Initialled) E. J. de A.
(Initialled) S. A.
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Gaza / Israel: a propósito de la solicitud de intervención de Chile en la demanda…
Nicolas Boeglin, Profesor de Derecho Internacional Público, Facultad de Derecho, Universidad de Costa Rica (UCR).…
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Nicolas Boeglin, Profesor de Derecho Internacional Público, Facultad de Derecho, Universidad de Costa Rica (UCR)…
