Public sitting held on Monday 1 July 1991, at 10 a.m., at the Peace Palace, President Sir Robert Jennings presiding

CR 91/9
International Court Cour international
of Justice de Justice
THE HAGUE LA HAYE
YEAR 1991
Public sitting
held on Monday 1 July 1991, at 10 a.m., at the Peace Palace,
President Sir Robert Jennings presiding
in the case concerning Passage through the Great Belt
Request for the Indication of Provisional Measures
(Finland v. Denmark)

VERBATIM RECORD

ANNEE l991
Audience publique
tenue le lundi 1er juillet 1991, à 10 heures, au Palais de la Paix,
sous la présidence de sir Robert Jennings, Président,
en l'affaire du Passage par le Grand-Belt
Demande en indication de mesures conservatoires
(Finlande c. Danemark)

COMPTE RENDU

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Present:
President Sir Robert Jennings
Vice-President Oda
Judges Lachs
Elias
Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva
Judges ad hoc Bengt Broms
Paul Henning Fischer
Registrar Valencia-Ospina

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Présents:
Sir Robert Jennings, Président
M. Oda, Vice-Président
MM. Lachs
Elias
Ago
Schwebel
Bedjaoui
Ni
Evensen
Tarassov
Guillaume
Shahabuddeen
Aguilar Mawdsley
Weeramantry
Ranjeva, Juges
MM. Bengt Broms
Paul Henning Fischer, Juges ad hoc
M. Valencia-Ospina, Greffier

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The Government of Finland is represented by:
H. E. Mr. Tom Grönberg, Director general, Legal Department, Ministry
of Foreign Affairs,
as Agent;
Mr. Martti Koskenniemi, Counsellor, Legal Department, Ministry of
Foreign Affairs,
as Co-Agent;
Sir Ian Sinclair,
Professor Tullio Treves,
as Counsel;
Mr. Tuula Svinhufvud, Attaché, Legal Department, Ministry of
Foreign Affairs,
Mr. Kari Hakapää, Associate Professor, University of Lapland,
Mr. Erkki Kourula, Minister Counsellor, The Permanent Mission of
Finland in the United Nations, New York,
Mr. Seppo Silvonen, Marketing Director, Rauma-Repola Offshore,
Mr. Aarne Jutila, Professor, Helsinki University of Technology,
as Advisers.
The Government of Denmark is represented by:
H. E. Mr. Tyge Lehmann, Ambassador, Chief Legal Adviser, Ministry
of Foreign Affairs,
Mr. Per Magid, Attorney,
H. E. Mr. Per Fergo, Ambassador, Ministry of Foreign Affairs,
as Agents;
Dr. Eduardo Jiménez de Aréchaga,
Mr. Derek W. Bowett, C.B.E., Q.C., LL.D., F.B.A., Professor of
International Law, Queen's College, University of Cambridge,
Mr. N. J. Gimsing, Professor, Technical University of Denmark,
Adviser to A/S Storebaeltsforbindelsen,
Mr. Claus Gulmann, Professor, University of Copenhagen,
as Counsel and Advocates:
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Le Gouvernement de la Finlande est représenté par :
S. Exc. M. Tom Grönberg, directeur général du département juridique
du ministère des affaires étrangères,
comme agent;
M. Martti Koskenniemi, conseiller au département juridique du
ministère des affaires étrangères,
comme coagent;
Sir Ian Sinclair,
M. Tullio Treves, professeur,
comme conseils;
M. Tuula Svinhufvud, attaché au département juridique du ministère
des affaires étrangères,
M. Kari Hakapää, professeur associé à l'Université de Laponie,
M. Erkki Kourula, ministre-conseiller de la mission permanente de
Finlande auprès de l'Organisation des Nations Unies à New York,
M. Seppo Silvonen, directeur de la commercialisation de la société
Rauma-Repola Offshore,
M. Aarne Jutila, professeur à l'Université de technologie d'Helsinki,
comme conseillers.
Le Gouvernement du Danemark est représenté par :
S. Exc. M. Tyge Lehmann, ambassadeur, conseiller juridique principal
du ministère des affaires étrangères,
M. Per Magid, avocat,
S. Exc. M. Per Fergo, ambassadeur, ministère des affaires étrangères,
comme agents;
M. Eduardo Jiménez de Aréchaga,
M. Derek W. Bowett, C.B.E., Q.C., LL.D., F.B.A., professeur de droit
international à l'Université de Cambridge, Queen's College,
M. N. J. Gimsing, professeur à l'Université technique du Danemark,
conseiller de la société A/S Storebaeltsforbindelsen,
M. Claus Gulmann, professeur à l'Université de Copenhague,
comme conseils et avocats:
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Mr. Kurt Lykstoft Larsen, Acting Head of Planning, Ministry of
Transport,
Mr. Søren Strange, Head of Section, Danish Energy Agency,
Mr. Leif Sjøgren, Project Manager, A/S Storebaeltsforbindelsen,
Mrs. Lene Rasmussen, Attorney, A/S Storebaeltsforbindelsen,
Mr. Niels Mogensen, Deputy Head of Division, Danish Maritime
Authority,
Mr. Henrik Dhal, Attorney,
Mr. J. R. Lilje-Jensen, Head of Secretariat, Ministry of Foreign
Affairs,
Mr. Jakob Høyrup, Head of Section, Ministry of Foreign Affairs,
as Advisers;
Mrs. Jeanett Probst Osborn, Ministry of Foreign Affairs,
as Secretary.
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M. Kurt Lykstoft Larsen, chef par intérim de la planification au
ministère des transports,
M. Søren Strange, chef de section à l'agence danoise pour l'énergie,
M. Leif Sjøgren, directeur de projet de la société A/S
Storebaeltsforbindelsen,
Mme Lene Rasmussen, avocat de la société A/S
Storebaeltsforbindelsen,
M. Niels Mogensen, chef de division adjoint de l'autorité maritime
danoise,
M. Henrik Dahl, avocat,
M. J. R. Lilje-Jensen, chef de secrétariat au ministère des affaires
étrangères,
M. Jakob Høyrup, chef de section au ministère des affaires
étrangères,
comme conseillers;
Mme Jeanett Probst Osborn, ministère des affaires étrangères,
comme secrétaire.
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The PRESIDENT: Please be seated.
The sitting is open.
The Court meets today, pursuant to Article 74 of the Rules of Court, to hear oral argument on
a request made by the Republic of Finland for the indication of provisional measures, under
Article 41 of the Statute of the Court, in proceedings instituted by Finland against the Kingdom of
Denmark in respect of a dispute concerning passage through the strait known as the Great Belt.
Judge Elias, for reasons duly explained to me in accordance with Article 23 of the Statute, will be
absent during the hearing and during the determination of this Request.
The proceedings to which this request for the indication of interim measures relates were
instituted by an Application by Finland in the Registry of the Court on 17 May 1991, referring to a
project of the Government of Denmark to construct a fixed traffic connection for both road and rail
traffic across the Great Belt, one of the straits connecting the Baltic Sea with the Cattegat and
Skagerrak and the North Sea. According to the Application, the effect of the implementation of that
project would be to close the Baltic for deep draught vessels requiring over 65 metres of clearance
above sea level, and this would put an end to Finnish commercial production and export of oil rigs
and drill ships requiring more than 65 metres' clearance. Finland claims that the Great Belt is a
strait used for international navigation, that there is a right of free passage through it, which extends
to drill ships, oil rigs and possible future designs of ship, and that the construction of the fixed traffic
connection as at present planned by Denmark would violate Finland's rights to free passage as
established in the relevant conventions and in customary international law.
I request the Registrar to read the submissions of Finland as set out in its Application.
The REGISTRAR:
"The Government of Finland asks the Court to adjudge and declare:
(a) that there is a right of free passage through the Great
Belt which applies to all ships entering and leaving Finnish ports and shipyards;
(b) that this right extends to drill ships, oil rigs and
reasonably foreseeable ships;
(c) that the construction of a fixed bridge over the Great
Belt as currently planned by Denmark would be incompatible with the right of passage
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mentioned in subparagraphs (a) and (b) above;
(d) that Denmark and Finland should start negotiations, in
good faith, on how the right of free passage, as set out in subparagraphs (a) to (c)
above, shall be guaranteed.
Finland reserves its right to modify or to add to the above submissions and in
particular its right to claim compensation for any damage or loss arising from the
bridge project."
The PRESIDENT: On 23 May 1991, Finland filed in the Registry a request for the indication
of provisional measures under Article 41 of the Statute of the Court and Article 73 of the Rules of
Court. I request the Registrar to read the statement in that request of the measures which Finland
requests the Court to indicate.
The REGISTRAR:
"(1) Denmark should, pending the decision by the Court on the merits of the
present case, refrain from continuing or otherwise proceeding with such construction
works in connection with the planned bridge project over the East Channel of the Great
Belt as would impede the passage of ships, including drill ships and oil rigs, to and from
Finnish ports and shipyards; and
(2) Denmark should refrain from any other action that might prejudice the
outcome of the present proceedings."
The PRESIDENT: On 28 June 1991, Denmark filed in the Registry written observations
upon the request for provisional measures, as contemplated in Article 74, paragraph 3, of the Rules
of Court. Those observations will be accessible to the public with effect from the opening of these
oral proceedings and I now request the Registrar to read the submissions presented by Denmark in
its written observations.
The REGISTRAR:
"The Government of Denmark requests the Court
(1) To adjudge and declare that, in the light of the law and the facts outlined above,
the Request of Finland for an order of provisional measures be rejected.
(2) In the alternative, and in the event that the Court should grant the Request in whole or
part, to indicate that Finland shall undertake to compensate Denmark for any and all
losses incurred in complying with such provisional measures, should the Court reject
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Finland's submissions on the merits.
The PRESIDENT: Since the Court does not include upon the bench a judge of the nationality
of either of the Parties, each Party has chosen a judge ad hoc to sit in the case. The Government of
Finland chose Professor Bengt Henry Gabriel Arne Broms, Professor of International and
Constitutional Law in the University of Helsinki, and Judge and Chairman of the First Chamber of
the Iran-United States Claims Tribunal. The Government of Denmark chose
Dr. Paul Henning Fischer, formerly Permanent Under-Secretary of State for Foreign Affairs of
Denmark, Ambassador, and Member of the Permanent Court of Arbitration, who is already sitting
as judge ad hoc appointed by Denmark in the case concerning Maritime Delimitation in the Area
between Greenland and Jan Mayen. In accordance with Article 7, paragraph 3, of the Rules of
Court, Judge Fischer and Judge Broms take precedence after Members of the Court in that order -
the order of seniority of age.
Article 31, paragraph 6 and Article 20 of the Statute require a judge ad hoc, before taking up
his duties, to make a solemn declaration in open court that he will exercise his powers impartially
and conscientiously. I therefore invite the two judges ad hoc in this case to make that declaration,
the text of which is contained in Article 4 of the Rules of Court. Will all those present please stand
whilst those declarations are made.
First Judge Fischer, please.
Judge FISCHER: I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.
The PRESIDENT: Judge Broms.
Judge BROMS: I solemnly declare that I will perform my duties and exercise my powers as
judge honourably, faithfully, impartially and conscientiously.
The PRESIDENT: Thank you; please be seated.
I place on record the solemn declarations just made by Judge Fischer and by Judge Broms,
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and declare them duly installed to sit as judges ad hoc in the case concerning Passage through the
Great Belt.
I note the presence in the Court of the Agents and counsel of the two Parties, and I give the
floor to the Agent of Finland, Ambassador Tom Grönberg.
H.E. Mr. GRONBERG: Mr. President, Members of the Court: as you are aware, this is the
first time that an agent of Finland has had the occasion to address this Court in a contentious case
before it. This is not, of course, due to an absence of interest on Finland's part on the functioning of
this body. Quite the contrary, Finland has always supported the Court and stressed its importance as
the principal judicial organ of the United Nations. In accordance with the Nordic cultural and
political heritage, Finland - as well as Denmark - has traditionally stressed the need to settle
international disputes peacefully and in accordance with the rule of law.
Seventy years ago Finland was instrumental in the submission by the Council of the League of
Nations of a request for advisory opinion to the predecessor of the present Court. That request
related to a matter very different from the present one. As you no doubt recall, the Permanent Court
finally decided that giving the requested opinion in the circumstances would have been inappropriate.
The situation in respect of the present case is, of course, entirely different from the
circumstances of that early attempt to engage the Court in what was in essence a bilateral dispute. It
is a paradox observed by sociologists of law that the stronger the consensus which exists in society,
the more recourse is had to litigation in the settlement of disputes over rights. The paradox is, of
course, only apparent. The more there is agreement about the basics of social life, the more
confidence there is on the legitimacy of courts and the judiciary in general.
Finland and Denmark share a common Nordic background in which the belief in the rule of
law is an essential element. Whatever differences of view there might exist on the substance of the
present case between the two countries, there should be no disagreement about the appropriateness of
using this body in order to put the dispute behind us. Whatever arguments will be put to the Court
on the merits of this case, it seems manifestly the case that both Parties have endowed the Court with
jurisdiction through their declarations made in the case of Finland on 25 June 1958 and in the case of
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Denmark on 10 December 1956. In this way, our common adherence to the principles of the
Rechtstaat and our wish to apply those principles also in our international relations have created the
necessary and sufficient conditions for our appearance here today.
Mr. President, Members of the Court, let me at this point introduce my colleagues in the
Finnish delegation. My Co-Agent, Dr. Martti Koskenniemi; our counsel and advocates Sir Ian
Sinclair, Professor Tullio Treves, advisers Professor Aarne Jutila from the Helsinki University of
Technology, Associate Professor Kari Hakapää from the University of Lapland, Marketing Director
Seppo Silvonen from the Finnish company Rauma-Repola Offshore; attaché Tuula Svinhufvud,
Ministry for Foreign Affairs. Later this week, we shall be joined by Minister Counsellor
Dr. Erkki Kourula from our Permanent Mission in the United Nations.
Mr. President, Members of the Court, in my opening statement on behalf of Finland I intend to
set down the general context of the present dispute between Finland and Denmark. To do so, I shall
first describe the rights which are the subject of the Finnish Application and, in accordance with
Article 41, paragraph 1, of the Court's Statute, also the present request for provisional measures. I
shall then make a brief overview of the attempts to settle the matter by negotiations between our two
countries and of the conflicting legal points of view which have appeared during those attempts.
Finally, I shall say something about the formulation of the Finnish submissions and the request for
provisional measures, particularly in light of the interests which Finland seeks to protect by this legal
action.
After my statement, I shall ask the floor to be given to our counsel, Sir Ian Sinclair, who will
present the legal basis of the Finnish request for provisional measures, particularly in light of the
jurisprudence of this Court. A second statement will deal with the factual aspects of the request and
will be presented by our Co-Agent, Dr. Martti Koskenniemi.
I come now to my first point, the legal context of the case.
The substantive contentions of Finland will, of course, be the main subject of the later phases
of this case. In light of the need to show a correspondence between the rights sought to be preserved
and the rights at issue in the main proceedings, as required by the jurisprudence of this Court, it is
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necessary - as well as useful - to say something here about the rights on which Finland bases its
case.
Finland claims that there is a right of free passage through the Danish strait of the Great Belt
which applies to all ships entering and leaving Finnish ports and shipyards. This is our main
contention. The right of free passage in the Great Belt is, I believe, something on which Finland and
Denmark agree.
Throughout the past decades Denmark has consistently maintained the position that the Great
Belt strait - which is one of the three Danish straits - is an "international strait" or a "strait used for
international navigation" within the meaning of this Court's Judgment in the Corfu Channel case.
I need not detain you long to argue that there is a special regime of navigation which exists in
international straits. In the case I just mentioned, the Court itself affirmed that there is a customary
right of passage of foreign ships through international straits. This position was then adopted by the
first UN Conference on the Law of the Sea which met in Geneva in 1958. As a result, we now have
article 16(4) of the 1958 Convention on the Territorial Sea and the Contiguous Zone which provides
that:
"There shall be no suspension of the innocent passage of foreign ships through
straits which are used for international navigation between one part of the high seas and
another part of the high seas or the territorial sea of a foreign State."
The Geneva Convention adopted the conception of "innocent passage" through international
straits. It may be noted that that Convention was ratified by Denmark on 26 September 1968 and by
Finland on 16 February 1965.
The third UN Conference on the Law of the Sea, as is well-known, further strengthened this
regime by adopting the notion of "transit passage", written into Articles 37-44 of the 1982 UN
Convention on the Law of the Sea. Though the Convention is not yet in force, a good case can be
made that this notion has already become a part of customary international law. Let me also note
that both Denmark and Finland signed the UN Convention on 10 December 1982.
The Danish straits, however, are also covered by the special regime established by the Treaty
of Copenhagen of 14 March 1857 for the Redemption of the Sound Dues. In that Treaty, 16 parties,
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among them of course Denmark, agreed inter alia that:
"No vessel shall henceforth, under any pretext whatsoever, be subjected, in its
passage of the Sound or Belts, to any detention or hindrance." (Article I, paragraph 1,
original French, translation of the Treaty in Churchill-Nordqvist, New Directions in the
Law of the Sea, Vol. IV (1975), pp. 320-4.)
I shall not dwell now more on the differences or overlaps between these various sources of the
law regarding the conditions of passage in the Danish straits and in the Great Belt in particular.
Suffice it to note that there is a right of free, unhampered passage which applies in the Great Belt
and that this right has not been contested by the Danish Government.
For Finland, the right of free passage in the Danish straits is of particular importance because
of Finland's geographical location. Finland's coastline extends only in the Baltic. The Danish straits
are the only available natural passage-ways between Finnish ports and world oceans. My Co-Agent
will give further details on the exceptional dependence of Finland on the conditions of passage in the
Danish straits. Let me just note that about 40 per cent of our foreign trade takes place through
goods transports utilizing the Danish straits.
As I observed, Denmark has consistently maintained the view that the right of free passage
applies in the Danish straits. Thus, for example, in the Danish Note Verbal of 30 June 1987, in
which foreign missions in Copenhagen were informed about the Danish plans to construct a fixed
link over the Great Belt, it was specifically observed that, in case a bridge solution is chosen:
"the erection of the bridge section crossing the Eastern Channel will, in conformity with
international law, allow for the maintenance of free passage for international shipping
between the Kattegat and the Baltic Sea as in the past".
However, in October 1989 it became apparent that the Danish Government had indeed chosen
the bridge option and had decided that the main channel of the Great Belt strait - the East Channel -
will be closed by a suspension bridge which will be erected in the height of 65 metres.
Mr. President, Members of the Court, Finland's substantive contention is that the construction
of the fixed link in the Great Belt in the presently planned form violates the right of free passage
established in the various instruments and in customary international law to which I referred a
moment ago. Two bridges will close both the two channels of this strait in a way which will
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permanently prevent the passage of certain categories of ships between the Baltic Sea and world
oceans. This is so because the Great Belt contains the only deep-draught passage-way to and from
the Baltic. Once the project is finished, deep-draught ships with a height of 65 metres or more no
longer can move through the Danish straits.
Suggestions for a fixed link in the Great Belt strait originate quite far back in time. These
suggestions received a concrete form first in the late 1950's, then during the 1970's and then again in
the late 1980's. The earlier project reached as far as a law on a bridge over the Great Belt, passed in
1973. In May 1977, foreign missions in Copenhagen were informed about the project.
Nevertheless, that project met with much internal opposition and the official political agreement to
suspend it was taken already the following summer, 1978. As a consequence, the company
established to implement the Project was dissolved.
In 1987, the Danish Parliament passed a new law which provided for a bridge or a tunnel
alternative to link the two parts of Denmark, Fyn and Jutland in the West and Sjaeland-Lolland in
the East, together. In 1989, foreign embassies in Copenhagen were informed that Denmark's
intention was to create a high-level bridge with a clearance of 65 metres in the main navigable
channel - the East Channel - of the Great Belt.
Through the incidence of geography, such a project has automatic and permanent
consequences for Finland's international traffic connections. It will prevent the passage of very large
passenger ships, special ships such as certain of ultra-large oil tankers and heavy lift vessels, as well
as most offshore exploration craft, from navigating to and from the Baltic. A large number of such
vessels have been constructed in Finnish shipyards and operate between Finnish ports and world
oceans.
But the issue is not only about the rights to be applied to the movements of special ships or
offshore craft. The problem is much more wide-reaching and has a bearing on the freedom of
navigation more generally. For Finland, passage right in the Danish straits is not an abstract,
academic question but, because of its geographical position, a highly practical issue of great
relevance. Without an unhampered right of passage through the Danish straits, Finland's right to the
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freedom of the seas becomes restricted in a parallel fashion. In order to be able to enjoy this
freedom, Finland first has to enjoy access to the places where it exists - to world oceans. For
Finland, the freedom of navigation is just as broad or narrow as the right of passage through the
Danish straits.
And here I come to the crux of the matter: is it thinkable that Denmark may restrict the right
of free passage in an international strait by a unilateral undertaking such as the present plan for the
fixed link in the Great Belt? Is it justifiable that the completion of the project will permanently
prevent the passage of craft which have continuously used it since 1972 and which have no other
feasible access to and from the Baltic?
The matter is crucial for future Finnish traffic connections generally. Let me note here that
the largest passenger ships already produced in Finland and delivered for use outside the Baltic,
reach a height of 56.3 metres and some of the special ships reach from 62 metres' to 150 metres'
height. And the international trend is generally towards even larger ship units. Thus the limit of
65 metres - which is, I may add, anyway a theoretical limit, the operative height being much lower -
will become a permanent and arbitrary limit to Finland's capacity to develop such units. It is also an
arbitrary way to close such vessels outside the Baltic. That large ships are no science-fiction is, I
believe, demonstrated by the fact that even the height of the Queen Mary - now removed from active
service - was 64.5 metres.
From Finland's perspective, the present Danish project for a fixed link appears as a unilateral
attempt to limit a right which has existed in the past and which Finland has also in practice enjoyed.
Finland can see no justification in international law for such unilateral action.
Much detailed discussion will undoubtedly be devoted to the development of ship sizes and
heights during the latter stages of the proceedings. I need not go into that problem here. Let me
conclude this overview of the substance of the right of free passage through the Great Belt, which
Finland claims, by noting that the relevant right is not contested between Finland and Denmark.
What is contested is its application in the particular circumstances of Finland and in respect of ships
to which Finland undertakes that it should extend.
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I shall now come to my second point, an overview of the negotiations between our two
countries about this matter.
It has been contended sometimes on the Danish side that Finland has reacted too late; and that
Finland is already faced with a fait accompli. The bridge project, we have been informed, can no
longer be modified. We fail to understand these contentions. If they refer to some of the earlier
projects, we can only observe that these projects were contested immediately, as they were proposed,
and differed substantially from today's plans. Besides, all Danish contacts with foreign powers in
the matter of the Great Belt have consistently contained a reference to the preservation of existing
navigation rights in the Great Belt. Surely Finland continues to be entitled to rely on the passage
rights which it has publicly used since 1972.
It should also be noted that official notice about the erection of the East Channel bridge
arrived at foreign embassies in Copenhagen - including the Finnish Embassy - only on 24 October
1989. At that point, the Finnish concerns had already been officially brought to the attention of the
Danish authorities by a letter from the Finnish Embassy of 18 July 1989. The relevant
correspondence is included as annexes in our Application and I will here only refer to them.
The Danish written observations argue about acquiescence. This we cannot accept. Is it
credible to assume that a government would give away a right as essential as this and to do this
without express notice? May I point out that in the early 1980's the Finnish government spent about
200 million FIM to dredge a channel 17.5 metres deep to Pori harbour. This was done on the
assumption that offshore craft would be continuously built in Pori and that they could use the Great
Belt on their way to the North Sea.
Finally, we fail to understand how we could be faced with a fait accompli as no such change
in the existing regime has yet materialized. In as far as Finland is aware, the strait remains still open
and even the contracts for the construction of the East Channel bridge - the main navigational
obstacle - still wait to be concluded. As long as actual construction of the suspension bridge has not
yet commenced, all modifications are possible.
Mr President, Members of the Court, Finland and Denmark have gone through several rounds
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of bilateral discussions on how to safeguard the right of free passage in the Great Belt while taking
account of the justified needs of Denmark to improve its internal traffic connections. I already noted
the letter from the Finnish Embassy to the Danish Board of Navigation of July 1989. The matter
was thereafter taken up in consultations between the Secretaries of State, Mr. Wihtol of Finland and
Mr. Möller of Denmark, in Helsinki on 20 September 1989. At that meeting, Mr. Wihtol
specifically repeated the Finnish concern about free passage in the Great Belt and the difficulties
that some of the existing alternatives might cause to Finland.
Nevertheless, in October 1989 we were informed about the Danish choice of the bridge
alternative with a navigational clearance of 65 metres.
May I here add that the Danish review of the history of the contacts as described in paragraph
38 of the written observations is slightly misleading.
The matter was then included in the agenda of the regular bilateral consultations on trade
policy between the representatives of the foreign ministries of our two countries which were held in
Copenhagen on 5 February 1990. At this meeting, it was for the first time argued from the Danish
side that the right of free passage does not apply to the kinds of offshore craft produced in Finland
because it applies only to regular "ships".
Legal experts of both countries met at the legal department of the Danish Ministry for Foreign
Affairs on 15 May 1990. Again, the Danes repeated the view that the project was intended to
guarantee the right of free passage of all existing ships - and that this excluded the offshore craft
produced in Finland. Besides, we were told, we had anyway reacted too late.
On 19 June 1990 a Note Verbal from the Finnish Embassy in Copenhagen to the Danish
Foreign Ministry explicitly repeated the Finnish points of view and suggested negotiations on how to
guarantee the right of free passage in the Great Belt. The Danish Ministry of Foreign Affairs replied
on 11 July 1990 that the bridge project fulfils the requirements of international law and that there is
therefore no basis for negotiations. Technical consultations were, however, suggested. These
consultations took place in Copenhagen on 30 August 1990. The Finnish participants were told that
no review of the project is possible. In a Finnish note of 7 September it was suggested that further
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discussions would also include the legal aspects of the problem - this suggestion was, however,
rejected on the Danish side.
At the following meeting, which took place in Copenhagen on 17 October last year, many
practical suggestions were made by Finland on how to modify the present project so as to guarantee
the right of free passage. All suggestions were rejected. The Danish side relied heavily on the legal
view that the Finnish craft - oil rigs and drill ships - did not enjoy a right of passage and that anyway
Finland had no say in the matter. These views were repeated at our next meeting in Copenhagen on
23 January 1991.
Finally, in February 1991 Finland's Prime Minister, Mr. Harrri Holkeri, asked his Danish
colleague that negotiations should start on how to accommodate the Finnish rights in the project.
Denmark's Prime Minister, Mr. Poul Schlüter replied - the text of this correspondence is annexed to
the Finnish Application - that there was no possibility to modify the project at this advanced stage
and that Finland had anyway reacted too late. Reference was here made to a previous but different
and aborted project from the 1970's. At that point, it was decided that the only way to safeguard
Finnish rights would be to turn to this body - an eventuality foreseen in the Finnish Prime Minister's
letter to his Danish counter-part. As the bridge project had steadily advanced during the year and a
half of continued contacts, it was considered necessary to file a request for provisional measures so
as to prevent Finland from being faced with a real fait accompli in the form of a finished or a very
advanced project - and, of course, to avoid the risk to Denmark that additional costs would be
involved in tearing down buildings already erected.
In conclusion, I can only note that Finland has tried its best to reach settlement in this matter
by bilateral contacts. During our very frequent meetings, however, the Danish side has not moved
an inch to seek an accommodation. Instead of showing comprehension for the Finnish rights and
interests, our legal views have been flatly rejected - indeed, we were told that we did not enjoy the
passage right because the craft we are referring to were not "ships" and that we had anyway
consented to the limitation of our rights in connection with a previous project initiated in 1977 and
suspended by a decision of the Danish Parliament the following year.
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Mr. President, Members of the Court, we were not impressed by the Danish points of view.
Throughout our bilateral contacts we had the feeling that whatever points of view we would put
forward would not have any effect on the Danish side. We know that the project has been and
continues to be subject to heated political debate in Denmark. We can understand that government
officials do not easily give in to external pressure which might endanger the very fragile political
consensus which supports the present bridge plan in Denmark. But we could not understand the
Danish insistence about our having no right in the matter - about our having somehow conceded to
Denmark that it can limit our rights by unilateral action.
Before I finish, let me briefly comment on what it is that we are today requesting from the
Court.
Neither our Application nor the Request is intended to achieve a complete cessation or blanket
prohibition of construction works for the fixed link project. We have much sympathy towards the
Danish effort to improve Denmark's internal traffic connections by building this traffic link. What
we want to achieve is a modification of the project so that the right of free passage can continue
unviolated in the Danish straits.
Up to this day, the Danes have been unwilling even to discuss any modification. In Finland,
we have drawn the conclusion that this discussion can be conducted fruitfully only after we possess
an authoritative statement on what our respective rights in this matter are. This is what we have
come to seek from the Court. We seek, first, a declaration of our rights in this matter. On the basis
of that declaration, we then aim to attain negotiations on the different technical alternatives which
might be used to safeguard our rights while taking account of the legitimate needs of Denmark.
A final point, Mr. President, Members of the Court. Much technical detail will undoubtedly
be presented in these proceedings. It is of essence to note, however, that nearly all of the technical
and economic aspects of this case are subject of dispute among experts. And this is not a division of
opinion following strictly national boundaries. Danish experts disagree among themselves just as
fully and perhaps much more fiercely on the technical and economic aspects of the different
alternatives as they do with Finnish experts. There is a group of internationally renowned technical
- 21 -
experts in Denmark - university professors of bridge and tunnel building - who have gone so far as to
believe that the bridge alternative is so much worse than the tunnel alternative - from a purely
national point of view - that they have complained about the matter to the Danish Parliamentary
Ombudsman claiming that the bridge decision simply failed to take account of the data supporting
the tunnel alternative.
While it is clear that the case cannot be fully grasped without some understanding of the
technical and economic complexities, these data cannot be decisive in regard to the parties' rights.
From Finland's perspective, the present dispute is not about which technical or economic data
are correct and which experts we should believe but about what are the two countries' rights in
regard to free passage in the Great Belt strait. Pending a declaration of those rights, we now seek an
interim order to the effect that the rights we are claiming in the main proceedings are not prejudiced
by continuous Danish activity. That we believe we do have grounds for such an interim order will,
with your permission, Mr. President, Members of the Court, and unless you have any questions to
me, now be explained by our distinguished counsel, Sir Ian Sinclair. Thank you.
The PRESIDENT: Thank you very much Ambassador Grönberg. Sir Ian Sinclair.
Sir Ian SINCLAIR: Mr. President, Members of the Court, it is a great honour for me to
appear in these oral proceedings on behalf of Finland on the Finnish Request for provisional
measures in the present case. As this is the first occasion on which I have been privileged to address
the Court, I would like to emphasize the esteem and respect in which I, together with the
overwhelming majority of international lawyers of my generation, hold the Court as the principal
judicial organ of the United Nations. I do so the more willingly and indeed, the more ardently,
because I have to begin my statement with an apology to the Court and also to our opponents. It so
happens that, for over a year, the oral hearing in the Heathrow User Charges Arbitration, in which I
am engaged as one of the counsel for the United Kingdom Government, has been fixed to open in this
very building on 2 July, that is to say tomorrow. Accordingly, I must make my most sincere
apologies to the Court and indeed to our opponents that I will regrettably be unable to participate in
- 22 -
the proceedings before this Court during the course of tomorrow because of this conflicting
commitment. I hope and indeed intend, to be present during the course of the further oral hearings in
this case later this week but I would ask the Court, and indeed our opponents, to excuse my
absence - my inevitable and, I trust, understandable absence - from this Courtroom tomorrow.
Mr. President, Members of the Court, as Ambassador Grönberg has indicated, my task this
morning is to analyse the legal basis for an indication of provisional measures by the Court and to
demonstrate how the Finnish Request for such an indication, duly filed with the Court on 23 May
this year, falls squarely within the framework of the principles already established in the
jurisprudence of the Court for the grant of provisional measures.
Mr. President, Members of the Court, you will of course be aware of the terms of Article 41,
paragraph 1, of the Statute of the Court which says:
"The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective
rights of either party."
It is clear that Article 41 of the Statute confers upon the Court a discretion to grant or not to grant
provisional measures of protection; but it is a discretion which must be exercised judicially, having
regard to the object and purpose of an indication of provisional measures - namely, "to preserve the
respective rights of either party". As one recent commentator has observed:
"That the powers of the Court under Article 41 are discretionary is a banal
truth. The character of grants of interim protection is inherent in their dependence on
the circumstances of a given case and in the necessity of their assessment ad hoc; it is
reflected in the actual language of Article 41 ('if it [the Court] considers that
circumstances so require') and of corresponding provisions related to other judicial
bodies. However, it may be appropriate to recall that 'discretionary power' is not an
'arbitrary power'." (Sztucki, Interim Measures in the Hague Court (1983), p. 61.)
Finland sees no need to enter into the disputed question of whether the Court has an inherent
power to grant provisional measures of protection, quite apart from the terms of Article 41 of the
Statute, read in conjunction with Articles 73 to 78 of the 1978 Rules of Court. Finland is of course
aware of the view expressed by the late and distinguished Judge Fitzmaurice in his separate opinion
- 23 -
in the Northern Cameroons case, where, in speaking of the Court's preliminary or "incidental"
jurisdiction (for example, to decree interim measures of protection), he states:
"Although much (though not all) of this incidental jurisdiction is specifically
provided for in the Court's Statute, or in Rules of Court which the Statute empowers
the Court to make, it is really an inherent jurisdiction, the power to exercise which is a
necessary condition of the Court - or of any court of law - being able to function at
all." (I.C.J. Reports 1963, p. 103.)
Whatever may be the truth of this observation, Finland is content to base its request for an
indication of provisional measures in the present case on the precise terms of Article 41 of the
Statute, believing, as it does, that its request falls squarely within the scope of that Article.
The object and purpose of an indication of provisional measures under Article 41 of the
Statute being "to preserve the respective rights of either party" in the main proceedings, there must
obviously be a link between the provisional measures sought and the rights which are or will be
disputed on the merits. The "respective rights" are those which either party is likely to advance in
the main proceedings on the merits and on which the Court is being called upon to adjudicate. This
is confirmed by a passage from the Order of the Court of 5 July 1951 on the United Kingdom
request for provisional measures in the Anglo/Iranian Oil Company case, where the Court stated:
"Whereas the object of interim measures of protection provided for in the
Statute is to preserve the respective rights of the Parties pending the decision of the
Court, and whereas from the general terms of Article 41 of the Statute and from the
power recognized by Article 61, paragraph 6, of the Rules of Court [that was of course
the numbering of the Article of the Rules of Court then in force], to indicate interim
measures proprio motu, it follows that the Court must be concerned to preserve by
such measures the rights which may be subsequently adjudged by the Court to belong
either to the Applicant or to the Respondent." (I.C.J. Reports 1951, p. 93; emphasis
supplied.)
It is also confirmed by the Order of the Court of 11 September 1976, on the Greek request for
provisional measures in the Aegean Sea case, paragraph 25 of that Order states inter alia that 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 the dispute in judicial proceedings ..." (I.C.J. Reports 1976, p. 9; emphasis
supplied).
- 24 -
Further confirmation is provided by the Order of the Court of 15 December 1979, on the United
States request for provisional measures in the case of the United States Diplomatic and Consular
Staff in Tehran. Paragraph 36 of that Order, after recalling that the power of the Court to indicate
provisional measures has as its object to preserve the respective rights of the parties pending the
decision of the Court, repeats the language just cited from the Order of the Court in the Aegean Sea
case.
Again, in paragraph 24 of its recent Order of 2 March 1990, on the Guinea-Bissau request
for provisional measures in the case between Guinea-Bissau and Senegal concerning the Arbitral
Award of 31 July 1989, the Court has re-emphasized that the purpose of exercising the power
conferred upon it by Article 41 of its Statute is "to protect rights which are the subject of dispute in
judicial proceedings".
This necessity for a link between the provisional measures sought and the subject-matter of
the Application has been stressed by the Court in other cases. Thus, in paragraph 14 of its
identical Orders on the United Kingdom and Federal Republic of Germany requests for provisional
measures in the Fisheries Jurisdiction case, the Court pointed out that:
"the contention of the Applicant that its fishing vessels are entitled to continue fishing
within the above-mentioned zone of 50 nautical miles is part of the subject-matter of
the dispute submitted to the Court, and the request for provisional measures designed
to protect such rights is therefore directly connected with the Application"
(I.C.J. Reports 1972, pp. 15 and 33).
Similarly in its Orders indicating provisional measures in the Nuclear Tests cases, the Court
stated that it was:
"satisfied that it should indicate interim measures of protection in order to preserve the
right claimed by Australia [New Zealand, as the case may be] in the present litigation
in respect of the deposit of radio-active fall-out on her territory" (I.C.J. Reports 1973,
pp. 105, para. 30 and 141, para. 31).
Thus, it is an accepted feature of the Court's jurisprudence on the exercise of its powers
under Article 41 of the Statute that there must be a correspondence between the rights sought to be
preserved and the rights which are in dispute between the parties. Finland submits that this
- 25 -
condition is fully met in the present case. The right which Finland seeks to preserve by
conservatory measures, pending a decision of the Court on the merits of Finland's Application, is
the continued right of free passage through the Great Belt for ships, including drill ships and oil
rigs, proceeding to and from Finnish ports and shipyards. This is a right which corresponds closely
to the relief sought in Finland's Application filed with the Court on 17 May. in particular, Finland's
Application requests the Court to adjudge and declare inter alia that there is a right of free passage
through the Great Belt which applies to all ships entering and leaving Finnish ports and shipyards;
that this right extends to drillships, oil rigs and reasonably foreseeable ships; and that the
construction of a fixed bridge over the Great Belt, as currently planned by Denmark, would be
incompatible with the right of passage so defined. The requirement of a correspondence between
the rights sought to be preserved and the rights which are in dispute between the Parties is thus, in
Finland's submission, fully satisfied in the present case.
That this is an important requirement is illustrated by the fact that the Court has, on
occasion, declined to indicate provisional measures for lack of a correspondence between the rights
sought to be preserved and the rights at issue in the main proceedings. Already in the Polish
Agrarian Reform case, the Permanent Court rejected a German request for an indication of
provisional measures on this ground - that is to say the incompatibility between the main claim and
the request for interim protection. And I cite a short passage from the Order of the Permanent
Court in that particular case:
"whilst the suit brought by the German Government is presented as having for its
object to obtain a declaration ... that ... infractions have been committed ... the request
for interim protection covers all the future cases of the application of the Polish
agrarian reform law to the Polish nationals of German race ...; accordingly, the
interim measures asked for would result in a general suspension of the agrarian reform
in so far as concerns Polish nationals of German race, and cannot therefore be
regarded as solely designed to protect the subject of the dispute and the actual object of
the principal claims ..." (P.C.I.J., Series A/B, No. 58, p. 177).
More recently, in the Aegean Sea case, Greece invoked, among its rights to be protected, the
right of Greece to the performance by Turkey of its undertakings contained in Article 2,
paragraph 4, and Article 33 of the Charter of the United Nations and in Article 33 of the General
- 26 -
Act of 1928. However, the Court found that:
"the right so invoked is not the subject of any of the several claims submitted to the
Court by Greece in its Application"
and that, consequently:
"this request does not fall within the provision of Article 41" (I.C.J. Reports 1976,
p. 11, para. 34).
Again, in the even more recent case between Guinea-Bissau and Senegal concerning the
Arbitral Award of 31 July 1989, the Guinea-Bissau request for an indication of provisional
measures was denied by the Court, principally on this ground. The Court will recall that, in this
case, Guinea-Bissau is requesting the Court to declare that the Award of the Arbitral Tribunal of
31 July 1989, in connection with the delimitation of the maritime territories of the two States, is
"inexistent" for one reason and, subsidiarily, that it is "null and void" for another reason. The
provisional measure sought was, however, that the Parties should abstain in the disputed area of
maritime territory from any act or action of any kind whatever. In denying the request for this
provisional measure, the Court stated, in paragraph 26 of its Order of 2 March 1990:
"Whereas the Application instituting proceedings asks the Court to declare the
1989 Award to be 'inexistent' or, subsidiarily, 'null and void', and to declare that 'the
Government of Senegal is thus not justified in seeking to require the Government of
Guinea-Bissau to apply the so-called Award of 31 July 1989'; whereas the
Application thus asks the Court to pass upon the existence and validity of the Award
but does not ask the Court to pass upon the respective rights of the Parties in the
maritime areas in question; whereas accordingly, the rights sought to be made the
subject of provisional measures are not the subject of the proceedings before the
Court on the merits of the case; and whereas any such measures could not be
subsumed by the Court's judgment on the merits." (Emphasis supplied.)
It will be apparent to the Court that none of the reasons advanced for denying provisional
measures in these three cases which I have discussed (the Polish Agrarian Reform case, the
Aegean Sea case and the case concerning the Arbitral Award of 31 July 1989, between
Guinea-Bissau and Senegal) is applicable in the present case. The right sought to be protected by
Finland, by means of the conservatory measures requested is the right which is the principal subject
of the proceedings before the Court on the merits of the case.
- 27 -
Of course, objection has sometimes been taken to the grant of provisional measures on the
ground that there is too close a correspondence between the relief sought by way of conservatory
measures under Article 41 of the Statute and the relief being sought by the Applicant in the
proceedings on the merits. This objection takes the form of a claim that what the Applicant is in
effect seeking by way of provisional measures in cases such as this is an interim judgment in its
favour on the merits. The point first arose before the Permanent Court in the Chorzów Factory
case where Germany put forward a request that the Court indicate an advance payment of a certain
sum (presented as being beyond controversy) in partial satisfaction of the principal claim for
reparation. The Court rejected this request on the ground that it could not:
"be regarded as relating to the indication of measures of interim protection, but as
designed to obtain an interim judgment in favour of a part of the claim formulated in
the Application"
and it was accordingly
"not covered by the terms of the provisions of the Statute and Rules cited therein"
(P.C.I.J., Series A, No. 8, p. 10).
I would ask the Court, however, to note that the object and purpose of the German request in
the Chorzów Factory case was not to conserve German rights which were at risk during the course
of the proceedings, but rather to obtain satisfaction in advance of part of its principal claim.
Moreover, the principal claim itself was a pecuniary claim for reparation. As Sztucki observes:
"The dispute was about the amount of pecuniary compensation and unless the
unusual question of a State's solvency arises, pecuniary claims probably do not qualify
as a matter of principle for interim protection in inter-State litigation." (Sztucki, op.
cit., p. 93.)
Nevertheless, reliance has been placed upon the above-cited dictum from the Order of the
Permanent Court in the Chorzów Factory case to sustain a more general proposition that when
there is exact correspondence between the principal relief sought by an Applicant State on the
merits of the case and the principal relief sought by the Applicant State in a request for provisional
- 28 -
measures, the request must be regarded as one for an interim judgment and should therefore be
refused. This general proposition does not of course sit all that well or tidily with the requirement
we have already discussed and which is so clearly fixed in the jurisprudence of the Court, namely
that there should be a close link between the rights sought to be protected by conservatory measures
under Article 41 of the Statute and the rights at issue in the proceedings on the merits. Nor is it
indeed supported by the jurisprudence of the Court, as I hope I will be able to demonstrate.
Let us take first the Nuclear Tests case. In its Application against France in this case,
Australia asked the Court inter alia: "to order that the French Republic should not carry out any
further such tests", that is to say: "atmospheric nuclear weapons tests in the South Pacific Ocean".
In its request for provisional measures, Australia asked the Court to indicate by way of a
provisional measure:
"that the French Government should desist from any further atmospheric nuclear tests
pending the judgment of the Court in this case" (I.C.J. Pleadings, Nuclear Tests cases,
Vol. 1, p. 57).
Thus, there was virtually exact correspondence between the relief sought by Australia in the
main proceedings and in the request for provisional measures.
This coincidence of submissions was not commented upon by the Parties. Nor was it
referred to in the text of the Court's Orders of 22 June 1973 indicating provisional measures in this
case and also in the parallel case instituted by New Zealand against France. However, two of the
Judges of the Court based their dissenting opinions on these orders partly on the ground of the
coincidence of submissions. Thus, Judge Forster, in his dissenting opinion, stated:
"The interim measures requested by Australia are so close to the actual
subject-matter of the case that they are practically indistinguishable therefrom.
Ultimately the only alternatives are the continuation or the cessation of the French
nuclear tests in the Pacific. This is the substance of the cases, upon which, in my
opinion, it was not proper to pass by means of a provisional Order, but only by a final
judgment." (I.C.J. Reports 1973, p. 113.)
Judge Gros, in his dissenting opinion, after having referred to the motives of the Order of the
Permanent Court in the Chorzów Factory case, likewise affirmed that a comparison between
Australia's principal claim and its request for provisional measures: "shows that the latter was
indeed designed to obtain an interim judgment" (I.C.J. Reports 1973, p. 123).
- 29 -
The same point arises, though in a much more muted form, in the case of United States
Diplomatic and Consular Staff in Tehran. Here there was a coincidence with one of the five main
submissions in the United States Application - namely, in relation to the release of all United States
hostages detained in Tehran and the safe departure from Iran of all such persons and of other
United States nationals in Tehran. In its written observations on the United States request for
provisional measures in this case, Iran had submitted inter alia and I quote from Iran's written
observations:
"With regard to the request for provisional measures, as formulated by the
United States, it in fact implies that the Court should have passed judgment on the
actual substance of the case submitted to it." (I.C.J. Reports 1979, p. 11.)
The issue having been raised by one of the parties, the Court felt bound to pronounce on it.
In the Court's Order on provisional measures of 14 December 1979, reference was again made to
the Order of the Permanent Court in the Chorzów Factory case. The Court then stated that:
"the circumstances of that case were entirely different from those of the present one,
and the request there sought to obtain from the Court a final judgment on a part of a
claim for a sum of money; ... moreover, a request for provisional measures must by its
very nature relate to the substance of the case since, as Article 41 expressly states,
their object is to preserve the respective rights of either party; and ... in the present
case the purpose of the United States request appears to be not to obtain a judgment,
interim or final, on the merits of its claim but to preserve the substance of the rights
which it claims pendente lite" (I.C.J. Reports 1979, p. 16, para. 28).
The Court will of course be aware that its Order of 15 December 1979 in that particular
case was adopted unanimously. Thus, the doubts expressed by the dissenting Judges on the Order
indicating provisional measures in the Nuclear Tests case, based on the assertion that the requests
for provisional measures were in substance requests for an interim judgment, appear to have been,
at least to some extent, dissipated. As Sztucki comments:
"In the US Staff case, the Court seems to have reaffirmed for the second time
(for the first time in the Nuclear Tests cases) the view that the substantive coincidence
of submissions in the request and in the application does not per se transform a request
into one for interim judgment; and consequently does not preclude action under - and
in conformity with - Article 41." (Sztucki, op. cit., p. 96.)
It is highly relevant in this context that the Court, in its Orders indicating provisional
measures in the Fisheries Jurisdiction cases, for the first time included a general "without
prejudice" clause covering also questions arising on the merits. The Court expressly stated in
- 30 -
those Orders (and this is a fairly common pattern of a paragraph included in Orders on provisional
measures):
"the decision given in the course of the present proceedings in no way prejudices the
question of the jurisdiction of the Court to deal with the merits of the case or any
question relating to the merits themselves and leaves unaffected the right of the
Respondent to raise arguments against such jurisdiction or in respect of such merits"
(I.C.J. Reports 1972, pp. 16 and 34 respectively, para. 20).
A generalized "without prejudice" clause of this nature has also been included in the Court's
Orders on provisional measures in the subsequent Nuclear Tests case, the Aegean Sea case, the
United States Diplomatic and Consular Staff in Tehran case and the Military and Paramilitary
Activities in and against Nicaragua case. It is clear that the object and purpose of this generalized
"without prejudice" clause is to reassure the Respondent (and indeed the world at large) that the
Court, in making an order indicating provisional measures, is not encroaching upon any issue of
contested jurisdiction nor indeed upon any disputed question relating to the merits of the case. But
I suggest it does more than that: it also reflects the fact that the Court, even if it has given an
indication of provisional measures, is open to opposite arguments at later stages of the case,
whether on jurisdiction or on the merits. It will of course be recalled that, in the Anglo-Iranian Oil
Co. case, the Court eventually declared that it lacked substantive jurisdiction after having earlier
indicated provisional measures in the case.
Mr. President, that might be an appropriate point at which we could stop for a coffee break.
The PRESIDENT: Thank you very much Sir Ian. Yes, we will now adjourn for about ten
minutes and then resume.
The Court adjourned from 11.20 to 11.40 a.m.
- 31 -
Sir Ian SINCLAIR: Mr. President, Members of the Court, just before the interval I had
been discussing the "without prejudice" clause included within the framework of recent Orders of
the Court on interim measures of protection. I did so within the framework of a wider survey of
various aspects affecting the object and purpose of interim measures of protection.
Indeed, I really make no apology for having analysed in some detail this aspect of the
Court's jurisprudence on provisional measures; I have to anticipate that our opponents may
contend that, in the present case, Finland is in substance requesting, by way of provisional
measures, an interim judgment in its favour on the merits of the case. This is most decidedly not
the case, if only for two reasons:
(1) the object of Finland's request for provisional measures is to preserve Finnish rights or
Finnish claimed rights, pending a decision by the Court on the merits; and
(2) although there is some correspondence between the Finnish request and the relief sought in the
Finnish Application, there is no exact correspondence.
If I may elaborate on the first of these reasons, it is clear from the materials which Finland has
presented to the Court in its Application that, since 1972, Finland has enjoyed the right of free
passage through the Great Belt of drillships and oil rigs (including semi-submersible rigs and
jack-up rigs) manufactured in Finnish shipyards. Finland is simply seeking to have that right
preserved pending a decision by the Court on the merits of the case. In this particular respect,
therefore, the position in the present case is comparable to that in the United States Diplomatic and
Consular Staff in Tehran case where the Court found that the object of the United States request
was "to preserve the substance of the rights which it claims pendente lite". It is a truly
conservatory measure which Finland requests, a measure justified by the imminent threat to
Finnish rights and interests which construction by Denmark of the Great Belt bridge in its presently
planned form presents. Finland simply seeks to preserve the status quo as regards free passage
through the Breat Belt pending the Court's decision on the merits of the case. In no sense can the
Finnish request be interpreted as a request for an interim judgment on the merits. Sztucki, writing
in 1983 and taking into account the materials available to him as at 31 May 1981, points out that
- 32 -
the problem under consideration has substantive aspects:
"Even a superficial look at cases in which interim protection was granted will
reveal its true meaning. The substance of all these cases (i.e., those of the
Sino-Belgian Treaty, Electricity Company, Anglo/Iranian Oil Company, Fisheries
Jurisdiction, and also US Staff) was that the respective applicants relied on recognized
legal status of more or less long standing; and sought judicial relief against the
respective respondents who unilaterally attempted to alter or violate that status to the
detriment of the applicants." (Sztucki, op. cit., p. 99.)
And Stucki continues:
"When the Court, in such situations, grants interim protection and indicates that
the applicants should provisionally, pending the final judgments, enjoy certain rights
they claim to possess, the indication is not to be viewed as anticipatory of the existence
of 'questionable rights', which are 'presumed to exist by the mere fact of indicating
provisional measures to protect them', but rather as conservatory of a previously
recognized status which became the object of a litigation. The substantive rights in
dispute still [to quote from the Court's Order on provisional measures in the
Anglo/Iranian Oil Company case] 'may be subsequently adjudged by the Court to
belong either to the Applicant or to the Respondent'. This is in strict conformity with
the nature of interim measures as a means of provisionally upholding or restoring the
status quo." (Sztucki, ibid.)
This is precisely the position in which Finland finds itself at the present stage of these
proceedings. Finland is threatened with action by Denmark which would irretrievably cut off
access to and from the North Sea for drillships and oil rigs manufactured in Finnish shipyards.
Finland simply seeks to have the existing right of free passage through the Great Belt for those
drillships and oil rigs preserved pendente lite.
I need not detain the Court long in elaborating on the second reason which I have prsented,
because it is, in a sense, of a subsidiary nature. As I have already indicated, there is no exact
correspondence between the Finnish request and the relief sought in the Finnish Application.
Finland has sought to confine its request to the minimum necessary to protect Finnish rights and
interests. In the first place, although Finland, in its Application, submits that the right of free
passage extends to drillships, oil rigs and reasonably foreseeable ships, the request is confined to
drillships and oil rigs. In the second place (and perhaps this is even more important), the Finish
request is limited to seeking an indication that Denmark should, pending a decision on the merits,
"refrain from continuing or otherwise proceeding with such construction works in connection with
- 33 -
the planned bridge project over the East Channel of the Great Belt as would impede the passage of
ships, including drillships and oil rigs, to and from Finnish ports and shipyards" (emphasis
supplied). Finland is not seeking a blanket prohibition of all activity by Denmark in connection
with the bridge project. A blanket prohibition could be considered as unreasonable and as going
beyond what is strictly needed by way of protective and conservatory measures. Finland has
accordingly sought to restrict its request to the bare essentials of what is urgently required to
protect Finnish rights and interests in this case pending a decision on the merits.
Mr. President, Members of the Court, I have so far confined myself to analysing the object
and purpose of Finland's request for provisional measures in the light of the requirement in
Article 41 of the Statute that the aim of provisional measures should be to "preserve the respective
rights of either party", I have sought to do so by drawing upon the jurisprudence of the Court
regarding the relationship between a request for provisional measures and a final judgment on the
merits. I have also sought to do so by demonstrating that the Finnish request is in no sense a
request for an interim judgment but is strictly conditioned by the perceived need to preserve the
status quo until the Court has ruled on the merits of the rights claimed by Finland and Denmark
respectively. Finland submits that, on this aspect of the matter, it has fully demonstrated that
Finland seeks only conservatory measures which it is entirely within the discretion of the Court to
grant in pursuance of Article 41 of the Statute.
The second part of my address is accordingly confined to an analysis of the phrase "if the
Court considers that circumstances so require" which is the remaining condition in Article 41 of the
Statute requiring to be satisfied. Here again, the jurisprudence of the Court furnishes clear
guidelines as to the meaning of this phrase. I propose to consider these guidelines under three
headings:
(1) the requirement of "irreparable prejudice";
(2) the requirement of "urgency"; and
(3) the prospects of substantive jurisdiction.
Irreparable prejudice
- 34 -
It has been a consistent feature of the jurisprudence of the Court (and indeed of the
Permanent Court) that, before granting provisional measures, the Court must be satisfied that
irreparable prejudice will or is likely to be caused to rights at issue in the proceedings on the
merits if relief by way of interim protection is not accorded.
The first issue to be considered in this context is whether the requesting State must satisfy
the Court that irreparable prejudice has already been caused or will inevitably be caused in the near
future to the rights and interests of the requesting State as a result of acts or omissions of the
respondent State. The jurisprudence of the Court (and indeed of the Permanent Court) reveals that
a probability or a possibility or irreparable prejudice is regarded as sufficient to justify the Court
in indicating provisional measures in accordance with Article 41 of the Statue. Thus, in the very
first case in which the Permanent Court indicated provisional measures - the Sino-Belgian Treaty
case - the order issued ex parte by the President of the Permanent Court on 8 January 1927,
indicated such measures against:
"the event of infraction - a contingency rendered possible by the situation resulting
from the publication of the ... Chinese Presidential Order - of certain of the rights
which Belgium or her nationals would possess in China if the Treaty of
2 November 1865, were recognized as still operative" (P.C.I.J. Series A, No. 8, p. 7).
Similarly, in the Nuclear Test cases, the present Court was satisfied that it should indicate
interim measures of protection against the possiblility of damage:
"for the purposes of the present proceedings it suffices to observe that the information
submitted to the Court does not exclude the possibility that damage to Australia might
be shown to be caused by the deposit of radio-active fall-out resulting from such tests
and to be irreparable" (I.C.J. Reports 1973, pp. 105, para. 29 and 141, para. 30).
In the order on provisional measures in the case of United States Diplomatic and Consular
Staff, the Court contented itself with determining that:
"the continuance of the situation the subject of the present request exposes the human
beings concerned.... to a serious possibility of irreparable harm
(I.C.J. Reports 1979, p. 20, para. 42).
On one occasion, in the Fisheries Jurisdiction cases, the Court might be thought to have
suggested a slightly more stringent test by observing that:
"the immediate implementation by Iceland of its Regulations would, by anticipating the
Court's judgment, prejudice the rights claimed by the United Kingdom"
(I.C.J. Reports 1972, pp. 16, paras. 22 and 34, para. 23).
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It may be doubted, however, whether the Court did adopt a more stringent test in the Fisheries
Jurisdiction cases - it was simply noting as a fact that immediate implementation of the Icelandic
Regulations would entail the stated consequences, without insisting that certainty as to irreparable
prejudice was a precondition for the grant of provisional measures.
In the present case, it may be noted that completion of the Danish bridge project over the
Great Belt in its presently planned form would inevitably prejudice - and prejudice irreparably - the
rights and interests claimed by Finland in these proceedings, that is to say the right of free passage
through the Great Belt for drillships and oil rigs manufactured in Finland. It hardly needs
emphasizing that construction of a bridge over the Great Belt with a 65-metre clearance would
totally and irretrievably prevent the passage of vessels and craft exceeding that height from the
Baltic Sea to the North Sea. This is confirmed by the fact that passage of the drillships and oil rigs
manufactured in Finland through the Danish straits by way of the Sound (or Oresund) is
impracticable. As pointed out in the Finnish Application, the depth of the Sound is, in certain
parts, less than 8 metres, whereas the draught of some of the vessels manufactured in Finland,
including drillships and oil rigs, is up to 15 metres. Furthermore, there is already in prospect a
Danish/Swedish project to build a bridge across the Sound which would further restrict the right of
free passage through the Danish straits. Dr. Koskenniemi will be responding this afternoon to some
of what Finland regards as mis-statements in the Danish Written Observations (particularly at
paragraphs 21, 43 to 46 and 55 to 58) on this aspect of the matter.
I turn now to the second issue which has to be considered in the present context: what is
meant by "irreparable prejudice"? Here, it can be argued that the jurisprudence of the two Courts
does not display total consistency. An early test of irreparability was laid down in the Order by the
President of the Permanent Court in the Sino-Belgian Treaty case. In this Order, President Huber
explained that interim protection was indicated because the possible infraction of certain rights at
issue;
"could not be made good simply by the payment of an indemnity or by compensation
or restitution in some other material form" (P.C.I.J., Series A, No. 8, p. 7).
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This would condition the grant of interim measures of protection upon the criterion of what has
been termed absolute irreparability in law. But this criterion has a number of deficiencies. It
seems to be based on the general concept of reparation in international law as expounded by the
Permanent Court in its Judgement of 13 September 1928, in the Chorzów Factory (Indemnity)
case, where the Court stated inter alia:
"The essential principle contained in the actual notion of an illegal act ... is that
reparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if the act had not
been committed."
The Permanent Court continues in that Judgment:"Restitution in kind, or, if this is not
possible, payment of a sum corresponding to the value which a restitution in kind would bear;
the award, if need be, of damages for loss sustained which would not be covered by
restitution in kind or payment in place of it - such are the principles which should serve to
determine the amount of compensation due for an act contrary to international law."
(P.C.I.J., Series A, No. 17, p. 47.)
But the Court will readily appreciate that the principles which govern, or may govern,
the redress available to an Applicant State on the rendering of a final judgment in its favour
are not the principles which should be applied in relation to the grant of interim measures of
protection. The nature and function of an order on provisional measures differ fundamentally
from the nature and function of a final judgment. An order on provisional measures is not
designed to impose redress for a wrongful act already committed, but precisely in order to
prevent irreparable prejudice to rights in dispute on the merits of the case. The Court does
not, and should not at this stage of the proceedings, anticipate what its decision on the merits
is likely to be; it is concerned solely with the perceived need to preserve the subject-matter of
the litigation against acts which are likely to lead to the impossibility of complete execution of
the final judgment on the merits. With one possible exception (the Aegean Sea case) - and I
will discuss that possible exception - the more recent jurisprudence of the Court suggests that
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the criterion of absolute irreparability in law has been effectively abandoned, and has been
replaced by a less stringent requirement related to the prospect that restoration of the rights
of the Applicant State, in the event of a final judgment in its favour, might be rendered
impossible if interim measures were not granted. The development of the jurisprudence of the
Court in this direction can be traced through the following cases.
In the South-Eastern Greenland case, the Permanent Court broadened the
circumstances which might motivate an indication of provisional measures by including
among these circumstances the case where:
"the damage threatening these rights would be irreparable in fact or in law"
(P.C.I.J., Series A/B, No. 48, p. 284; emphasis supplied).
That is a citation from the Order.
The criterion of irreparability in fact considerably extends the range of circumstances
which might give rise to an indication of provisional measures.
One then begins to see the development of the concept that one of the principal objects
of an indication of provisional measures is to ensure that the possibility of full execution of
the final judgment is preserved. A hint of this is already to be found in the Order made by the
Permanent Court on 5 December 1939, in the Electricity Company of Sofia case, where the
Permanent Court ordered that:
"pending the final judgment ... the State of Bulgaria should ensure that no step
of any kind is taken capable of prejudicing the rights claimed by the Belgian
Government or of aggravating or extending the dispute submitted to the Court"
(P.C.I.J., Series A/B, No. 79, p. 199).
The Permanent Court, in addition, in that case, invoked the need:
"to prevent ... the performance of acts likely to prejudice ... the respective rights
which may result from the impending judgment" (ibid.).
The same idea, though expressed in slightly different language, is to be found in the
Orders of the present Court on provisional measures in the Anglo/Iranian Oil Company case
and in the Interhandel case. As the Court will recall, the motivation in the Anglo/Iranian Oil
- 38 -
Company case was expressed to be that the Court was:
"concerned to preserve ... the rights which may be subsequently adjudged ... to
belong either to the Applicant or the Respondent" (I.C.J. Reports 1951, p. 93).
Identical language is to be found in the Court's Order on provisional measures in the
Interhandel case, although it will be recalled that the Court did not indicate interim measures
of protection in that case, in view of the fact that sale of the disputed shares could only go
ahead upon conclusion of judicial proceedings pending anew before the United States courts.
But it is in the Court's Orders on provisional measures in the Fisheries Jurisdiction
cases that we see explicit reference being made to the "irreparability" criterion, in the form of
relating "irreparability" to the possibility of securing full execution of the final judgment, if
that judgment were in favour of the Applicant State. In the Fisheries Jurisdiction cases, the
Court emphasized the importance of the test of irreparable prejudice by noting that its power
under Article 41 of the Statute:
"presupposes tht irreparable prejudice should not be caused to rights which are
the subject of dispute in judicial proceedings" (I.C.J. Reports 1972, p. 16,
para. 21 and p. 34, para. 22).
But the Court went even further in the Fisheries Jurisdiction cases. It will be recalled
that the Icelandic Parliament had passed a resolution on 15 February 1972, extending
Iceland's exclusive fisheries jurisdiction from 12 to 50 miles. Both the United Kingdom and
the Federal Republic of Germany instituted proceedings against Iceland seeking declarations
that there was no basis in international law for the intended unilateral extension of Iceland's
exclusive fisheries jurisdiction; that such extension was consequently invalid or, alternatively,
not opposable to the Applicant States; and that fisheries conservation measures in the
disputed maritime areas required agreement with other States concerned. On 14 July 1972,
Iceland issued regulations, due to come into force on 1 September 1972, to implement the
resolution of the Icelandic Parliament of 15 February 1972. The United Kindgom and the
Federal Republic of Germany thereupon immediately sought interim measures from the
Court. In its Orders of 17 August 1972, the Court, having stressed the significance of the test
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of "irreparable prejudice", went on, in the immediately following paragraph of each of the two
Orders issued, to observe that to give effect to Iceland's intentions manifested in the
regulations issued on 14 July 1972:
"would prejudice the rights claimed by the United Kingdom [or the Federal
Republic of Germany] and affect the possibility of their full restoration in the
event of a judgment in its favour" (I.C.J. Reports 1972, p. 16, para. 22 and
p. 34, para. 23.)
Here the irreparability is treated as being manifested by the impossibility of complete
execution of the final judgment, if in favour of the Applicant State, and quite irrespective of
whether the Applicant State might or might not be compensated for possible non-execution of
the final judgment.
Now, Mr. President, Members of the Court, what might at first sight seem to be the
one exception to this general trend away from the absolute irreparability in law
criterion and in favour of the alternative (and more liberal) requirement of the
impossibility of complete execution of the final judgment if in favour of the Applicant
State is, as I indicated earlier, to be found in the Order of the Court on provisional
measures in the Aegean Sea case. There, Greece had asked the Court inter alia to
indicate the following provisional measure: "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 licences or permits or adjacent to the Islands, or
otherwise in dispute in the present case".
The Court motivated its refusal to indicate this particular provisional measure by observing:
"In the present instance, the alleged breach by Turkey of the exclusivity of the
rights claimed by Greece to acquire information concerning the natural resources of
areas of continental shelf, if it were establsihed, is one that might be capable of
reparation by appropriate means; and ... 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 powers under Article 41."
(I.C.J. Reports 1976, p. 11, para. 33.)
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At first sight, this appears to constitute or could be argued to constitute, a partial reversion to the
absolute irreparability in law criterion formulated by President Huber in the Sino-Belgian Treaty
case. But closer analysis shows this, I would submit, not to be the case. Greece had invoked two
highly contentious bases of jurisdiction - Article 17 of the General Act of 1928, and the so-called
Brussels communiqué of the Greek and Turkish Prime Ministers of 31 May 1975. There seems
little doubt that the Court was influenced in its decision not to grant provisional measures in the
Aegean Sea case by serious doubts among the judges as to whether the Court had, or would have,
jurisdiction to proceed to the merits of the case. The Order rejecting provisional measures in the
Aegean Sea cae was made by twelve votes to one; but there were eight separate opinions, seven of
which raised the question of the jurisdictional basis for action by the Court under Article 41 of the
Statute. In its subsequent Judgment of 19 December 1978, on the issue of jurisdiction in the
Aegean Sea case, the Court found, by twelve votes to two, that it was without jurisdiction in the
case. The same judges who voted for the rejection of the request for provisional measures in the
Aegean Sea case also voted in favour of the subsequent judgment declaring the Court to be without
jurisdiction in the case. Sztucki has observed:
"Taking into account the already mentioned symmetry of votes on the Order and
on the Judgment; and taking further into account the massive emphasis on the
jurisdictional aspect of interim protection put by the judges in their individual opinions
in a situation in which this question might appear immaterial in view of the rejection of
the request on other grounds - there seems to be room for a qualified guess that the
order in the Aegean Sea case was in reality motivated at least as much by poor
prospects of substantive jurisdiction as by the 'reparability' of the prejudice against
which interim protection was sought." (Sztucki, op. cit., p. 249.)
Now, Mr. President, Members of the Court, Finland is not inviting the Court to speculate on
the (unexpressed) motivations of the judges composing the Court in 1976. It simply cites this
particular comment as being illustrative of the need to consider carefully whether the passage which
I have cited from the Court's Order on provisional measures in the Aegean Sea case does indeed
constitute a reversion to the absolute irreparability in law criterion. Finland submits that it does
not, and derives support for this view in a number of the separate opinions delivered on that Order.
For example, President Jiménez de Aréchaga (and we are of course delighted to see him with us
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today) states inter alia in his separate opinion:
"In cases in which there is no reasonable possibility, prima facie ascertained by
the Court, of jurisdiction on the merits, it would be devoid of sense to indicate
provisional measures to ensure the execution of a judgment the Court will never
render." (I.C.J. Reports 1976, p. 15.)
So also as Judge Mosler states:
"The Court, when it actually indicates interim measures, should have reached
the provisional conviction, based on a summary examination of the material before it
(including written observations of a party not represented) and subject to any
objections which may be raised in subsequent proceedings, that it has jurisdiction on
the merits of the case." (Loc. cit., p. 24.)
Judge Mosler indeed later observes in his separate opinion that the request had to be rejected "for
the sole reason that the jurisdiction of the Court [was] not sufficiently established" (loc. cit., p. 25).
Thus, what appears primarily to have motivated those judges who delivered separate
opinions on the Court's Order denying provisional measures in the Aegean Sea case was serious
doubts as to the Court's jurisdiction on the merits of the case. The motives given in the Order itself
do not appear to correspond to the real motives and anxieties of the majority of the judges, at least
if the content of the eight separate opinions is taken into account. For this reason, Finland does not
regard this isolated mention of the potential "reparability" of the alleged prejudice as involving a
reversion to the absolute irreparability in law criterion for the indication of provisional measures.
Finland submits that the recent jurisprudence of the Court suficiently demonstrates,
particularly if this analysis of the Order in the Aegean Sea case is taken into account, that a
prejudice is considered to be irreparable for the purpose of an indication of provisional measures if
it would render impossible full execution of the final judgment and thereby full restoration of the
rights of the Applicant State (assuming the Court were to find in its favour); and this irrespective
of whether or not the Applicant State might be compensated for the non-execution of the final
judgment.
Applying this principle to the circumstances of the present case, it will be apparent that
completion of the bridge project over the Great Belt in its presently planned form will constitute
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irreparable prejudice to Finland's rights and interests. Even continuation of construction work in
connection with that bridge project in its presently planned form constitutes irreparable prejudice to
Finland's rights and interests, given that the construction work is directed precisely towards
completion of the bridge project in a form which will irreversibly prevent the passage of those
drillships and oil rigs manufactured in Finnish shipyards for which Finland asserts a right of free
passage through the Great Belt. Finland accordingly contends that the requirement of irreparable
prejudice, as a pre-condition of the grant by the Court of provisional measures, is fully met in this
case, having regard to the materials presented in the Finnish Application and request for provisional
measures.
Finland notes that Denmark, in paragraphs 136 to 138 of its written observations, appears to
be arguing that the Court should revert to the "absolute irreparability in law" criterion for an
indication of provisional measures. As my analysis of the jurisprudence of the Court amply
demonstrates, that criterion originally relied upon, at least in part, by President Huber in the
Sino-Belgian Treaty case, has now been effectively abandoned.
Mr. President, Members of the Court, I now turn to the question of urgency. As a matter of
principle, the element of urgency underlying a request for provisional measures is already reflected,
as a matter of procedure, in the 1978 Rules of Court governing the handling of such a request.
Thus, Article 74 of the Rules of Court particularises this requirement of urgency by providing, in
paragraph 1, that: "A request for provisional measures shall have priority over all other cases" and
by providing, in paragraph, 2 that:
"The Court, if it is not sitting when the request is made, shall be convened
forthwith for the purpose of proceeding to a decision on the request as a matter of
urgency."
Thus, the procedure before the Court applicable to a request for provisional measures is
specifically geared towards dealing with such requests urgently. But these particular provisions of
the Rules of Court were adopted not simply to reassure States that requests for provisional
measures will be handled expeditiously. They also reflect the understanding that issues submitted
to the Court in requests for interim protection are issues that demand urgent treatment; in other
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words, that urgency is an essential quality of a request for interim measures and that a request
lacking that quality is not one for such measures within the meaning of Article 41 of the Statute and
the relevant Rules of Court.
This view of the matter is confirmed by the jurisprudence of the Court. In particular, the
Order of the Court on provisional measures in the Pakistani Prisoners of War case is directly
relevant on this point. In this case, the requesting State, Pakistan, itself asked the Court, at a
certain stage of the proceedings on provisional measures, to postpone for an unspecified period
further consideration of Pakistan's request so as to facilitate proposed negotiations with India. In
addition, the oral hearings on Pakistan's request were adjourned three times on Pakistan's request,
thus extending the duration of the proceedings on interim measures by 18 extra days. Having
regard to these considerations, and taking into account in particular the request by Pakistan to
postpone for an unspecified period further consideration of Pakistan's request, it is hardly
surprising that the Court's Order of 13 July 1973 rejecting the Pakistani request, should have
emphasised that:
"it is of the essence of a request for interim measures of protection that it asks for a
decision by the Court as a matter of urgency, as it is expressly recognised by the Court
in Article 66, paragraph 2, of the Rules of Court".
(The reference here is of course to the 1972 Rules of Court, now replaced by the 1978 Rules of
Court.)
The Court then went on to point out that the Pakistani request to the Court to postpone for
an unspecified period further consideration of Pakistan's request for an indication of interim
measures:
"signifies that the Court no longer has before it a request for interim measures which is
to be treated as a matter of urgency; and ... the Court was not therefore called upon to
pronounce upon the said request" (I.C.J. Reports 1973, p. 330, para. 14).
This having been said, the requirement of urgency has not been treated by the Court,
whether in relation to the procedural or substantive aspects of the matter, as a requirement of
extreme urgency. As regards the procedural aspects, the Court has not permitted the need to decide
- 44 -
upon a request as a matter of urgency to override other considerations also mentioned in the Rules
of Court, such as the need, mentioned in Article 74, paragraph 3, to fix a date for a hearing "which
will afford the parties an opportunity of being represented at it". In a number of cases, the Court
has postponed or adjourned oral hearings to accommodate the wishes of the respondent State or, as
in the Pakistani Prisoners of War case, the applicant State.
As regards the substantive aspects of urgency, and analysing those cases in which an
indication of provisional measures has been given by the Court, it would appear that in some cases
(the Sino-Belgian Treaty case, the Anglo/Iranian Oil Company case, the United States Diplomatic
and Consular Staff in Tehran case, and the Military and Paramilitary Activities in and against
Nicaragua case) - in all these cases the events being complained of and forming the subject of the
request for provisional measures had already taken place. In other cases (the Fisheries
Jurisdiction cases and the Nuclear Tests cases), the events being complained of were or could be
expected to take place within a number of weeks.
What of the present case? Finland submits that it falls somewhere between these two
categories. It may be argued - and has indeed been so argued in the Danish written observations -
that any irreparable prejudice to Finnish rights and interests will arise only when the bridge project
has been completed in 1996 or 1997 and when the free passage through the Great Belt of drillships
and oil rigs manufactured in Finland will have become physically impossible. It is also contended
in the Danish written observations that the Court will have given its decision on the merits of the
case well before 1996 or 1997. But, in Finland's submission, this view of the matter ignores
entirely a number of highly relevant factors:
(1) First factor, the bridge project over the Great Belt is part of a complex of projects which,
though separate, are inter-connected because they are all designed to provide a fixed link for rail
and road traffic over or under the Great Belt. Even Denmark concedes that the Great Belt project
constitutes - and here I am quoting from paragraph 25 of the Danish written observations -
constitutes "an integrated whole". Now, the inter-connection is such that the completion of any one
of these projects is heavily dependent, within the framework of the overall plan, upon eventual
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completion of the other parts of the complex of projects in their presently planned form. Although
it is the bridge project over the Great Belt which presents, and will continue to present, the greatest
prejudice to Finnish rights and interests, the completion of any one of the complex of projects could
indirectly prejudice Finnish rights and interests because the overall plan, as it stands at present,
makes no attempt to take account of those rights and interests. 2. Finland is already suffering
economic damage as a result of public knowledge that the planned bridge over the Great Belt will
have a clearance of only 65 metres. The Rauma-Repola Offshore Company is already experiencing
a falling-off of orders for drillships and oil rigs manufactured in their shipyard in Finland. Of
course, this may be partially attributable to the effects of economic recession in those industrialized
countries which provide customers for drillships and oil rigs; but it may equally be partially
attributable to the fact that potential customers are now aware that passage through the Great Belt
will become physically impossible for drillships and oil rigs manufactured in Finland as soon as the
Great Belt bridge has been completed in its presently planned form. The time-lag involved in the
construction of such massive structures as oil rigs designed for offshore exploration or exploitation
activities may already, I put it no harder than that, may already be discouraging potential
customers uncertain whether the rigs, when completed, will be able to proceed to their final
destination. Accordingly, irreparable prejudice is already being caused to Finnish claimed rights
and interests as a result of the planned Great Belt bridge. And that prejudice is bound to become
even more apparent than it is today as construction work on the bridge proceeds and as the effects
of recession on the oil producing industry world-wide begin to recede.
3. Finland assumes, and no doubt rightly assumes, that Denmark will make every effort to
minimize any disruption to maritime traffic through the Great Belt during the period when the
Great Belt bridge is under construction. But some disruption would seem to be inevitable.
Finland's anxieties are naturally increased by the knowledge that it is not just completion of the
bridge over the Great Belt which will finally prevent the physical passage through the Great Belt
of these vessels for which Finland is asserting a right of free passage in its Application. The
asserted right of free passage may also be adversely affected during the course of the construction
- 46 -
works themselves.
For these and other reasons upon which Dr. Koskenniemi will elaborate in his address to the
Court, Finland submits that there is indeed an urgent need for the Court to indicate provisional
measures in this case in order to protect the rights which the Court may subsequently adjudge to
belong to Finland or to Denmark as the case may be.
Jurisdiction
I turn now, Mr. President, Members of the Court, to the third element - jurisdiction, the
prospects of substantive jurisdiction.
Now, Finland is well aware of the case-law of the Court concerning the link between a
potential indication of interim measures and prospects of the substantive jurisdiction of the Court
on the merits of the case. In the present case, to be quite frank, the question of jurisdiction does not
present a problem and I need only touch on it very briefly. Finland notes that in paragraph 84 of its
Written Observations, Denmark rightly points out that
"the Court's jurisdiction is not in dispute in so far as both Denmark and Finland
according to their longstanding tradition of adhering to procedures for peaceful
settlement of international disputes have accepted the Court's jurisdiction under
Article 36 of the Statute".
So the Court is fortunately not confronted with any of the complex problems which may arise in
indicating interim measures in cases of uncertain jurisdiction.
Mr. President, Members of the Court, you may wonder why hitherto I have made little or no
reference to the Written Observations submitted by Denmark on 28 June. Finland has of course
had an opportunity (albeit a limited opportunity) to study these observations over the past two
days. As I have already indicated, Dr. Koskenniemi will be responding to so much of these Danish
observations as relate to the facts of the present dispute. But I feel bound to state that the Danish
Written Observations are directed much more towards the merits of the case which Finland asserts
than they are towards the Finnish Request for interim measures of protection. Finland is
participating in these oral proceedings on its request for interim measures of protection on the
understanding that they do not trench upon questions or issues which would rightly be for
consideration by the Court when it comes to consider the merits of the case. This is not, repeat not,
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a preliminary hearing on the merits. It will soon have been apparent from the Finnish Application
that there is a genuine dispute between Finland and Denmark on the scope of the right of free
passage through the Great Belt, which Denmark is pledged to respect. Neither Finland's
Application nor Finland's Request for interim measures of protection have been advanced
frivolously. Finland has, as Ambassador Grönberg has already demonstrated this morning, sought
to resolve this dispute through direct negotiations with Denmark. Unfortunately Denmark has
refused negotiations on the substance of the Finnish concerns. It would seem, and I say this with
respect, that Denmark is seeking to muddy the waters by trying to convert the current oral hearings
into some kind of advance hearing on the merits. Finland could make many observations on the
slanted presentation in the Danish Written Observations as regards both the facts and the law; but
to do so beyond a certain point would be to fall into the trap of anticipatory argument on the merits.
Finland must therefore at this stage make a general traverse of all the arguments advanced in the
Danish Written Observations which relate to the merits of the present case. This is of course
without prejudice to the particular points already made by Ambassador Grönberg and the points to
be made by Dr. Koskenniemi. It is also without prejudice to two points which I would like to make
even at this early stage of the oral proceedings:
(1) The first is a very simple point. Paragraphs 85 to 123 of the Danish Written
Observations relate exclusively to the merits of the case and fall within the general traverse I have
just enunciated. But lest there be any misunderstanding arising from the wording of paragraph 87
of the Danish Written Observations, let me make it clear (as I have done already) that Finland's
Request for provisional measures is confined to drillships and oil rigs manufactured in Finnish
shipyards and does not extend to "reasonably foreseeable" ships. In other words "future ships" are
not the subject of the Finnish Request for interim measures.
(2) My second point is this. In paragraph 141 of its Written Observations, Denmark makes
an alternative submission that the Court, in the event that it grants the Finnish Request in whole or
in part, should indicate that Finland undertake to compensate Denmark for any and all losses
incurred in complying with such provisional measures, should the Court reject Finland's
- 48 -
submissions on the merits. Finland cannot, with all respect, believe that this alternative submission
is meant to be taken seriously. It is unsupported by any argument in the Danish Written
Observations. The Court will be only too well aware that reparation (or compensation) is one of
the normal consequences of an internationally wrongful act; and, in fact, earlier in my address, I
cited two passages from the Chorzów Factory (Indemnity) case. Is it seriously being suggested
that Finland is committing an internationally wrongful act in seeking to have recognized and
acknowledged the right of free passage through the Great Belt of drillships and oil rigs
manufactured in Finland? I personally can think of nothing more disruptive of the prospects of
encouraging States to resort to this Court for the settlement of their legal disputes than the
suggestion that, in doing so, they risk being asked to give an undertaking in damages against a
certain contingency. As a matter of international law, Finland would submit that this alternative
Danish submission is ill-conceived and cannot properly be indicated by the Court at this stage of
the proceedings. There is, indeed, a question as to whether the powers of the Court under
Article 41 of the Statute extend so far as to encompass a measure of this kind which would have
profound consequences in the sense of substantially modifying the risks inherent in instituting
proceedings before this Court. No government takes the decision to institute proceedings before
this Court without giving very serious attention to the gravity and importance of the case which
they are going to present. To Finland's present knowledge, no request such as that contained in the
Danish alternative submission has even been presented to this Court, far less entertained; and this
would appear to be confirmed by the lack of any supporting argument in the Danish Written
Observations.
Mr. President, Members of the Court, in the light of the considerations which I have
developed - considerations which are firmly grounded in the jurisprudence of this Court - Finland
submits that all the conditions identified by the Court as being required to be satisfied before an
indication of provisional measures will be granted are satisfied in the present case. The object and
purpose of provisional measures is to preserve the respective rights of the Parties pending a
decision by the Court on the merits of the case. It is the asserted rights and interests of Finland in
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free passage through the Great Belt of drillships and oil rigs manufactured in Finland which are
threatened by the unilateral action of Denmark. These are the rights which need interim protection.
Finland does not dispute the right of Denmark, as the territorial sovereign, to construct a fixed link
for rail and road traffic across the Great Belt; but Finland submits that this right can be exercised
only subject to the limitations which international law imposes - and one of these limitations is
precisely respect for the right of free passage for vessels through the Great Belt. This is the basic
right which calls for interim protection by way of conservatory measures pending the outcome of
the proceedings on the merits of the case; and Finland asks only for the minimum measures
necessary to protect that right and ensure that Finland's position in the further proceedings in this
case is not irreparably prejudiced. That it would be so prejudiced by continuing Danish action in
connection with the bridge project, the effect of which would be physically to deny to drillships
and oil rigs manufactured in Finland the right of free passage through the Great Belt, is clear.
Finland accordingly asks the Court to indicate the provisional measures which it has specified in its
request.
Mr. President, Members of the Court, I would wish to thank you all most sincerely for the
courtesy, attention and patience with which you have listened to my statement.
Mr. PRESIDENT: Thank you Sir Ian. It would seem convenient now to adjourn and to
meet again at 3.00 p.m. this afternoon to hear Mr. Koskenniemi. Thank you.
The Court rose at 12.45 p.m.