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 a dispute 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.

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 case from 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

Power to indicate interim measures presupposes that irreparable injury should not be caused to rights subject of the dispute The Court has to determine first if it has independent power to indicate interim measures

III.

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

the 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 should not 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 the Court (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

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 910)

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 the risk 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 might require 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 interim measures

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

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 present themselves 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 of the jurisdiction of the Court to entertain the dispute Reserves the fixing of the time-limits for the said written proceedings and the subsequent procedure, for further decision