Aegean Sea Continental Shelf Case Judgment of 19 Dec 1978

Marasigan, Mary Remie Jane T. 2H

AEGEAN SEA CONTINENTAL SHELF CASE (GREECE V. TURKEY)

JUDGMENT OF 19 DECEMBER 1978 I.

Factual Background Greece instituted proceedings against Turkey in respect of a dispute concerning

the delimitation of the contimental shelf appertaining to each of the two States in the Aegean Sea and their rights thereover. Turkey expressed the view that the C:ourt had no jurisdiction to entertain the Application. Greece requested the Court to indicate interim measures of protection, but in an Order of 11 September 1976 the Court found that the circumstances were not such as to require them and decided that the wrimen proceedings shollld first be addressed to the question its jurisdiction to entertain the dispute. The following submissions were presented in behalf of the Government of Greece in the Application: (1) that the Greek Islands referred to 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, (3) 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, (4) Turkey is not entitled to undertake any activities on the Greek continental shelf without the consent of Greece, (5) activities of Turkey constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf and (6) Turkey shall not continue any further activities within the areas of the continental shelf which the Court shall adjudge appertain to Greece.

The Government of Greece requests the Court to adjudge and declare on the basis of the General Act for the Pacific Settlement of International Disputes that 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. No pleadings were filed by the Government of Turkey and it was not represented at the oral proceedings and no formal submissions were made thereof by that Governement. 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 not had the assistance it might derive from such arguments or from any evidence adduced in support of them. Nevertheless, Court points out that it had to examine proprio motu the question of its own jurisdiction, a duty reinforced by the terms d Article 53 of its Statute, according to which the Court, whenever a party does not appear, must, before finding upon the merits, satisfy itself that it has jurisdiction. After giving a brief account of the negotiations which have taken place between Greece and Turkey since 1973 on the question of delimiting the continental shelf, the Court finds, contrary to suggestions by Turkey, that the active pursuit of negotiations concurrently with the proceedings is not, legally, any obstacle to its exercise of its judicial function, and thru a legal dispute exists between Greece and Turkey in respect of the continental shelf in the Aegean Sea.

II.

Doctrines 

Active negotiations in progress does not constitute as impediment to Court’s exercise of jurisdiction



When a treaty or convention in force provides reference to the Permanent Court of Justice it shall be referred to the International Court of Justice



The term "territorial status" is 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



The expression in a reservation of must interpreted in accordance with rules as they exist today and not as they existed when it was constituted



Whether joint communiqué does or does not constitute an agreement depends on the nature of the act or transaction which it gives expression

III.

Discussion 

Active negotiations in progress does not constitute as impediment to Court’s exercise of jurisdiction

“…Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes. The jurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu. Several cases, the most recent being that concerning the Trial of Pakistani Prisoners of War (I. C.J. Reports 1973, p. 347), show that judicial proceedings may be discontinued when such negotiations result in the settlement of the dispute. Consequently, the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function…” (par 29, page 12)

“…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…” (par 30, page 12)



When a treaty or convention in force provides reference to the Permanent Court of Justice it shall be referred to the International Court of Justice

“…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…” (par 34, page 14)

“…The effect of that Article, as this Court emphasized in the Barcelona Traction, Light and Power Company, Limited, Preliminaty 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…” (par 34, page 14)

“…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…” (par 34, page 14)



The term "territorial status" is 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

“…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 régime, of the territory in question…” (par 75, page 32)

“…Accordingly, the expression "relating to the territorial status of 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 régime but the territorial integrity and the boundaries of a State…" (par 76, page 32-33)



The expression in a reservation of must interpreted in accordance with rules as they exist today and not as they existed when it was constituted

“…the Court is of the opinion that the expression in reservation (b) "disputes relating to the territorial status of Greece" must be interpreted in accordance with the rules of international law as they exist today, and not as they existed in 1931. It follows that in interpreting and applying reservation (b) with respect to the present dispute the Court has to take account of the evolution which has occurred in the rules of international law concerning a coastal State's rights of exploration and exploitation over the continental shelf…” (par 80, page 34-35)



Whether joint communiqué does or does not constitute an agreement depends on the nature of the act or transaction which it gives expression

“…Accordingly, whether the Brussels Communiqué 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 Communiqué gives expression; and it does not settle the question simply to refer to the form-a communiqué-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 Communiqué, the Court must have regard above al1 to its actual terms…” (par 96, page 40)

“… On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement…” (par 96, page 40)

IV.

Voting 

The court by 12 votes to 2 finds that it has no jurisdiction to entertain the application



Vice-President Nagendra Singh a nd Judges Gros, Lachs, Morozov and Tarazi append separate opinions or declarations



Judge De Castro and Judge ad hoc Stassinopoulos append dissenting opinions to the Judgment of the Court