Aegean Sea Continental Shelf (Greece v. Turkey) - Judgment on the question of the Court's jurisdiction

Aegsan Sea Continent21 Shelf
(Gre~ce V. Tarke~)

The following information is made available to the press by
the Registry of the InternationaC lourt of Justice;

Today, 79 Decernkr 1978, tne International Court of Justice
delivered judgment on the question of its jurisdfction in the case .
concerning the Aegean Sea Continental Shelf (Greece TijrkeI).

51.12 votes to 2, the Court has found that it is withrlut
jurisdiction to entertain the kpplicâtion filed by the Governnent

of Sreece.

Tne Court was compoçed as follmus: PresidentJimknez de Aréchaga;
Vice-Presiden tJagendra Singh; &dges Forster, C-ros, Lz,chs, fiillard,
de Castro, Korozo-7, Sir Xumphrey Waldock, Ruda, Mosler, Zlias,
and Tarezi; Judge ad hoc Siassinopoulos.

Of the 12 Pqembers cf the Court u:ho voted for i;hr decision,

vice'-~resident Xagendra Siwh ad JudgesGros, Lachç, Pllorozov c~nd
Serazi have appended separate opinionsor declarations.

Dissentingopinions have been appended to tne Judgnent by
Judge de Castro and Judge ad hoc Stassinopoulos.
a

J
The -printéd editian will becorne available in Februaky 1979.
(Orciers should be addressedto the Distribution and Sales Section,
Office of the United Nations, 1211 Geneira 10, or ,the Sales Section,

United Nations, NIT/!York, N.Y. 10017, or an appropriate bookseller. )

An analysis of the ,J=~dgmentis given below. This analysis. has
been prepared bg the Registry to assistthe.pressand dues not commit
the Court in any way. It cannof; be quated againstthe actual text
of the Judgmentand does not constitute an interpretation of it. Analysis of the ,Tudament

procedure,and Surnrnary of Piegotiations (paras. 1-31 )

In its Judgment, the Court rccalls tiiat on 10 August 1376 1
Greece instituted proceedingsagzinst Turkey in respect of a dispute
/!;
concerning the delirnitation of the continental shelf appertaining
to each of the L~io :;tates in the Aegean Ses and their rights
thereover. In a letter of 25 August 1376 Turkeÿ expressed the view
thatthe Court had no jilirisdictiionto entortain the Application. 5

Greece requested -the Cou~t to indicate interipi measuresof
protection, Sut in an Order 05 11 September 1376 the Cou~t found that
the circumstancew sere net s~ic:h asto req~l~e thern and decided that

thewritten pieceedings shoulc',Tirst Se addressecl to the q~iestion of
its jurisdiction to entertain the dispute. Greece subsequently flled
a Piernorialand presentedorel argumen,ts @t public sittings,Îormally
submittinq that the Coi~rt hzd sdeh jurisdic-lion, Turkey did no5 file
any Counter-iilemorial and was not represented at; the heari~gs. Its
8 attitude was i-ioweverdefinefi ir.the above-tnentioned le-tter and. in
communicetians addressedto the Court on 24 April and 10 October 1978. i

ras. 1-14.)

iJhile regrettirq that 'Turkey. ddianot 2gyaï in order to put
foniard 15s arguments, the Court points ol~t th& it noverthele'ss had
to exatnine proprio motu the questioiî of its ovrn ,jurisdic"tion, a düty
reinforced by the tcrrns 02 Article 53 of its Statute, accordingto
which the Court, whenever a party does not appear,nust, before

finding upon the merits, sztisfy itselr that it has jurisdiction
(para. 15) -

P.ftdergivi~ a hrief account QE the negotiations which have taken
place betrreen C-reecc and Tilrkey since 1973 on the ouestion of
delimitingthe continental shelf, the Court finds, contrary to
suggestions by ~urkeÿ, that the active p~rsuit of negoiiations

concurrently with the proceedTngs is not, legally, any obstacle its
exercise of its judicial functiot?, and -tkt a legal dispute exists
between Greece and Turlrey in respect of the continental shelf in the
a kegean Sen (paras. 16-31).

First Basis of J~zrisdictian Fielied Upon: P.rticle 17 of the
~ene$alAct of 192-8 (2aras. 32,-93)
n

In Lts ApplicatioRthe Greek Covernment specifi&d two bases on
F:~LC it clairn~d to found the ji~risdietiorr'of the Coust in the dispute,
w The first was P.rticle 17 of the Geheral Kct'of 1928 for the Pacifie
Settle~ent of ~nternationel Disputes, read witi Article 35, paragraph 1,
and Article 37 of the Statute of the Court.

~rticlc 17 of the General Act reads as follot~s:'

"Al1 disp~ites with regard to which the parties are in
conflict as to iheirrespectLve rights shall, subject to any
raservations vrkiichKiay be nizd-dunder Article 39, be siibmltted
for declsionto the Permanent Court of Internationa lustice,
unless trie parties agrec, in tic nianner hereinafter provided,
to have resort to an arbitraltribunal. It is understood that

the disputes referred to aùovc include in particularthose
rnentioned iiiArticle 36 of th;-Statute of the orf fia neCourt
of Tnternational Justice ".

This a... This Article thus provided for tiierefe~ence of 'disputes to the
Permanent Court of T~ternational Justice. That body was the
predecessorof the present Cou:*t, wkiici~, by the ef2act of Article 37
of its own Statute, is substituted l'or it in any treaty or convention
in force which provides for reference of' amatter to the Permznent
Court. dence, if the General Ac% iç to be considered a convention in
force between Grecce and Turkeg, it may, when read with Article 37

and Article 36, paragraph 1, oî the present Court's Statute, suffice
to establish the latter 'a jurisdic ti0~. (Paras. 32-3J4.)

The question of triesta'cus of -the G~neral Act of 1928 as a
conventionin forca for the p~rposcs of Article 39 of the Statutewas
raised, though not decided, in 7revious ceses before the Court. In

the present case the Greek Government contendedthat the Act mist be
presumed to be stillin force cs between Greeceand Turke~; the
TurkishGovernment, on the contrary, took tl~e.position tnat the Act
was no longer in force. ( Paras. 35-38 ).

a The Court notes that C-reece drew attentlonto the fact that both
the Greek and the Turkish instrurents of âccessrlon Lo tne Act ii.ere

accornpanied bg reservat isns. Greece 'af ~irmed that t'nese were
irrelevant to tne case. 'Turkey, or?the ot'r~er_Sand, to~lr the position
that, whether or not the General Act vias asspmed ta be in force,
Greece '.sInstrument of accession, rfsted 1b Septerriber 1931, was sub ject
to a clause, rescrvation -jb), which would exclude the Court's
cornpetence with respect to the dispute. (?ma. 39,)

The tex% of thisrcservati-on (o) 2s es follows:

"Th5 follotring diswtes are excliided froin the proeed-ures
describedin the Generel Act ,,,

(bi disputes concerliirqgc~1ezti3os wi"Lch by internatrio~al law
jurisdiction of States,and
are solely within "the dxi~estic
in particular dis>utes relating to the territorial status
of Greece, incLuding dis-tes reiatir& to its rights o11
sovereignty over its ports and iines of cornninication.

The Cmrt considers that, if TUrlszy's ~ie~i of tize eff~ct of
reservation -(b) on the spplicabillty of 'he Act as between Greece md
Tu~key with respect to Me subject-natter of the dispute 5s justified,

a finding on t$e questtcin whether the Act is or is not in force would
cease to be essentialfor the decision regardlng the Court's
jurlsdiction. (Para. 40,)

According to Creece, the Court shiiuld leave reservation (b) out
.ofaccoiint because the question of its effect on the applicabilityof
the General Act.was not raised regulariy hy Türkey in accordance vrith

theXules of Court, so that Turkeg coula not be regarded as having
"enforced" the ~eservation as required by Article . 9, paragraph 3, of
the ~eneral Act, wherehy: "~fone of the 'to a dispute has
made a reservation, the othzr parties may enforce the same reservation
in regard to that party." In the Court's view, Turkey'sinvocation
of reservation -(b} in a farmal statement made in respcnse to a
communlcatian frorn the Court musi be considered as constitutirg an1enforcement'' of th5 reservation within the meming of Article B,
paragraph 3, of the Act, sIhe Court !vas thereforeunable 50 leaw

out of its consideration a rlesei=~ration the in~rocati~n of which had
been properly brought to its ndtice earlics in the proceedings.
(Paras. 41-4 7. )

Greece naintsined thatreservation -(b 1 could not be considered
as covering the dispute regarding the continental shelf af the
Aegean Sea and therefore did not excludethe normal operation o.
Article 17 of the Act. Tt coeended in particular that the -
reservation dld not cover al1 disputes relating $0 the territorial .

status of Greece b~:t only such as 5c.U: relzted to. its territorial
status and at the saine tirne eoncerned "questionswhich 'by
international law are solely within the donestic jurisdkction of '
tat tes". (Paras. &8 and 49. )

This contention dependeci on ari ~ssentially grarnrnatical
.
interpretation which hinged on the ciuanlng Lo bc sscribed to the
expresslon "and in partfcularl' ('jet, notarntrient," in the original
mench of the reservation), After considering this arament, the
Court finds that the question whdher tha-t exprkssion has the
meaning attributedto Tt by Greece depends on the cantext in which
it was used in the instrument 3f ~CC~SS~O~ and is not a matter sirnPlg
of the preponderant linguistic usage, The Court reeallstiat it

cannot b~se itselfon a pu-rely grm~matical interpr-tction of the text
and observes that a ixrnber of substentiveconsiderations point
decisively to the conclusior, Yhat reservation -(b) contai~edtwo
separate and aut;or,otnous reservatio~s ,. ("ras. 50-76. )

One such consideration me tnzt in frarrilng it,s declaration

accepting the compulsoryjurisàictiori. of the Permanent court und&
the optionalclause of the latter's Statute - a declaration made on
12 September 1929, only two years before the Greek .accession to the
GeneraL Act - Greece includeda provision which, incXs'ptably, was an
autonomous reservation of ''àisputes relatlng to the territorial status
of Greece". It cm hardlÿ te supposed that Greece, in its instrument
of accession t3 the General Act, sliould have ii~tended to give to its

.reservation of l!diçp~ites rc1atir.g to the territorial stat;is of ~reece"
a scope which differed kindementzlly froc that given to it in that
declaration. That Greece had had such an intentiop was flot borne'out
by the contemporary evidence placed before the Court relati-g tu the
malthg of the declaration ar.dthe deposit of the instrument of
accessj'on, #
".
*
That being so, the Court ficds that reçervation (b) comprises two
dist5nc-t and autonornoùs reservations,one 'af febting disputes concernkng
questionsof domestic jurisc!fct;ion and.the other reserving "disputes
relating to the territorial sta-Lus of Grcece". (paras. 57-68. )

The . .. . T~E i:curt then goes on to consiucr;ilha* '"disputes i-elating to
the terri-tarial status of ~reece" must be taken to mean.

Greece niaintsined thart a restrictive vievi of the meaning must be
taken, by reason of the histo~ical context, and that th~s~
n~rds. relnts- tn territorial qiiestioas haund up ~ritk! the territorial
settlemepts established bg the pcace trentics after the Sirs% Morld Var.
In the Court'sopinion, the l~istorical evidence relieà on >y Greece
sems rather to confirm that in reszrvation(b) the expression
"territorial statusi' was used In its ordinary, generic sense of any

mattex properly to bc considered as beionging to the concept of
territorial s-tatus in pirùlic international Latv. The expr3ession
therefore includcd not only the -pa;.ticulcrrlcgal réginie but the
territorial integri ty and Crie bonndaries af'a State . (Paras. 69-75. )

Greece arguecl that the very idea a? the continental sheif wes
wholly ~inknorvn in 1928 when the Senernl R.t was concluded,and in 1931

* when Greece aceededto the Act. Eut, in the Couri'sview,since the
expression "terrf torial status" was itsed iz?the Greek rescrvation as
a genmic term, ~he presumption nec@sssr1i13; arLses that its meaning,
as also that of the word 'lrigl~ts" in Article17 3f the Ceneral Act,
was to follon the eriolution of the hi an2 to corresp3nd t.iitithe
meaning attached 50 it by the lm in iwce at ~ny given tirne. The
Court therefore finds thatthe expressi~n "disputesrelating to the

territorial statusof ~reece" nixst be interpreted in accorûance with
the ruies of international law as they xist today and not as they
existed in 1931. (Paras. 77-80 ).

The Court then praceeds to exaniine lv~Ilether, taking into account
'che.developments in international 13.1lbe2arding the coitinental shelf,
the expressi3xi "ciisgutes relating +,stnc territcirial stetus of Grecce"

should O;. shoulùnot he ~in2e-lsto.idas conprising d~sputes relatiq ta
tne geographical extent of Grcece 's rights over the ccintinental shelf
in the Aegean Sea. Oreece contendcd that the dispute c~ncerned the
delimitation of the continental snelf, said ts be entirelgzxtraneous
to the notion of territoreal statiis, anc! that the continental shelf,
a not being part of th2 ter~itwy, could not Se considered as connected

with territorial status, The Court obser-rcs t'nat it would be difficult
to accept the pl-oposition tha t deliisitatlon 1s entirely ext~ane3us to
th nction of territorial stntus, ?ad points out that a dispite
rlgarding delimitation of a continental shelf tcnds by its very nakuse
t~ be one relaCing to territorial status, inasmueh as a coastslState's
rights over the continental shelf -2crive fsom its sovereignty over the
adjoining land. It follows that the territorial status of the coastal
Statecomp~ises, ipso juret th2 rightsof exploration and exploitction
7 over the continentalshelf t3 which it is entitled under international

1at.1. (Paras. 80-89.)

Having regard ta those consideraiions, the Court is of the opinion
that the dispute.is ané whichrelates to the territorial status of
Greece within the meaning of reservation (b) and that Turkey's
invocationof reservation had the effect of excludi~ the dispute
from the application of Article 17 of the Generel Act. The General Act

1s therefore not a valid banis for the Court's jurisdiction. (Pare. 30.) The Court also takesintn cansideration a suggestion that the
GeneralAct hart .never bten applicaiil? as between Turkey anci Greece,
Iny reascin of the, existenceof thu Greco-Turkish Treaty of Friendship,
Neutrnlity, Conciliation and A~bit~ation signed .on30 October 1330.
It fin& that- it 1s dispensecl fiaonian!;need to enter Into the

question of the effect of the 1930 treatyon the applicability 9f the
General Act, because it has established %kat, by the effect of .
reservation -(b'),the Act 1s not agplicable t9 the dispite, md'5ecauçe
the 1930 treatywas not invoked as a basis Tor its jurisdiction.
(paras. 91-93. ) ,

Second Basisof Jurisdiction Reli~d Uponr the Brussels Joint ~ommuniqu6
of 31 Ilia1975 (paras. 94-196)

The secondbasis of jririsdictior! reliedupon by Greece was tlze
I3mssels~,Toint Cotnnni~iquE of 31 F'izy1975. This was a ccimmunic,u8

issued directly to the press by the Frime Minisiers of Greece md
Turkey followinga neetin& hetvrcen Lhem ?n thatdate;. It contained
the followfng passage:
."'
"They /?ne tiuo Priinr ginisters/ decided thet tkîse groblems
ibetween th; two countries/ shouldbe resolved peaceally hy
-
rneans of neaotiations andcias rcga-rds t!~e continental shelf of
the'Aegean Sea b.j the Internnti~na lmrt at The Hasue. ['

Greecemaintaincd,thatthis passuge directlyconf~rred jurisdiction
on the Court, cornmitted the parties to concluding eny iyplementing
agreement needed and, in the event cifsefusal by one of t2iem to
conclude such Etn agreemer~t, perrnittcd the nther to refer the dlspute

unilaterally to the Court,. Turlcey, for its part,maintained that the
comniniqu& did'not "amount to wi agreem?nt under internattom1 lavr",
and th2.tin ang evcnt it did ncit coinpsise undertaking 53 resort to
the Cciur'c without a special agreement (comproinis) or amaunt to a?
agreement by one State to suSrnit to tlie jurisdicticin of the Courtupon-
the unilateral application of the ather. (Faras. 94-99 ).

In view of these divergent interpr~'~ations, the Courtconsiders
what light, Is thrown on the inemla~; of the communiqué by trie .context
in whichthe meetingof 31 P1ay 1.97 'coolcplace &d the document was
dravrn up: Tt ffnds nothing to justify' the c3nclusion that Tzîrkey was
pse$ared to envisage any other reference to the C~urt thm a joint
subrnisçion 9iTtf'g dispute. In the inf ornation bef ore i'k3n what

follotved the Bnissels c3mmuniqué the C~urt finds confismation that the
two Prime ivlinisters d5d n~t uridertake xny unconditional cornitment to '
refer thcfr cmtinental shclf dispute to the Court. (Piras. 100-106.)
. .
Hence the Brusselscomunlyé did nzt c~nstitute an immediats '
and unqualifiedc3mrnitment on the part of the Prime~inisfers of '
Greece W.& Turkey to accept the s~ib~iissi3n gf the dispte to the Court

unilaterally by Application. It follo~vs that it does net f'urnish a
valid hasis for estaSlishil+g th? Court's jurisdiction. The Court adds
that nothing it-hasseid may be understood as pr&cluding the dispute .
from being br~ught before the 9urt if and when the conditions for
- eslablishing its jurisdiction are çatisfied. (Paras. 107 and 108.)

For these reasons, the Court findsth~L It is without jurisdiction
to entertain Lhe Application file? 1,:rche C~~vernment cf Greeceon
IQ Li:TIlq+1q76 (3zy2*Kq),