in the Application:
"The Government of Greece requests the Court to adjudge and declare:
(i) that the Greek islands referred to in paragraph 29 [of the Application], as part of the territory of Greece, are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law;
(ii) what is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law which the Court shall determine to be applicable to the delimitation of the continental shelf in the aforesaid areas of the Aegean Sea;
(iii) that Greece is entitled to exercise over its continental shelf sovereign and exclusive rights for the purpose of researching and exploring it and exploiting its natural resources;
(iv) that Turkey is not entitled to undertake any activities on the Greek continental shelf, whether by exploration, exploitation, research or otherwise, without the consent of Greece;
(v) that the activities of Turkey described in paragraphs 25 and 26 [of the Application] constitute infringements of the sovereign and exclusive rights of Greece to explore and exploit its continental shelf or to authorize scientific research respecting the continental shelf;
(vi) that Turkey shall not continue any further activities as described above in subparagraph (iv) within the areas of the continental shelf which the Court shall adjudge appertain to Greece."
in the Memorial:
"... the Government of Greece requests the Court to adjudge and declare that, whether, on the basis of Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read with Articles 36, paragraph 2, and 37 of the Statute of the Court, or on the basis of the joint communiqué of Brussels dated 31 May 1975, the Court is competent to entertain the dispute between Greece and Turkey on the subject of the delimitation of the continental shelf appertaining to the two countries in the Aegean Sea".
"The Government of Greece submits that the Court be pleased to declare itself competent to entertain the dispute between Greece and Turkey on the delimitation of the respective areas of continental shelf appertaining to either country in the Aegean."
"... the Governments of Greece and Turkey in this respect to continue to take into account the contribution that appropriate judicial means, in particular the International Court of Justice, are qualified to make to the settlement of any remaining legal differences that they may identify in connection with their present dispute".
"It should, in the view of the Government of Turkey, be recalled that that Application was filed although the two Governments had not yet begun negotiations on the substantive issue, as is clearly apparent from the contents of the Notes exchanged by the two Governments. It was however always contemplated between them that they would seek, through meaningful negotiations, to arrive at an agreement which would be acceptable to both parties."
The letter recalled that the Security Council, by its resolution 395 (1976), called upon both Governments "to settle their problems primarily by means of direct negotiations in order that these might result in mutually acceptable solutions". It argued that it was in pursuance of that resolution that the Berne Agreement of 11 November 1976 provided in Article 1 that:
"The two Parties agree that the negotiations shall be frank, thoroughgoing and pursued in good faith with a view to reaching an agreement based on their mutual consent with regard to the delimitation of the continental shelf as between themselves."
"The necessary conditions for the conduct of frank and serious negotiations, and the spirit which should motivate the parties concerned, with a view to the settlement of their problems by such negotiations, are not reconcilable with the continuation of international judicial proceedings."
Furthermore, in a Note Verbale to the Greek Government of 29 September 1978 concerning the Greek request for a postponement of the beginning of the oral proceedings in the case, the Turkish Government objected to the postponement, and expressed the opinion that:
"... the discontinuance of the proceedings and the removal of the case from the list of the International Court of Justice would be more conducive to the creation of a favourable political climate for an agreed settlement".
"There is a dispute about what the continental shelf boundaries in the Aegean Sea should be, and there is a dispute as to the method whereby this first dispute should be settled—whether by negotiation alone or by submission to a tribunal competent to exercise jurisdiction in the matter, either following upon negotiations or even in the absence of them."
"Article 17 of the General Act for the Pacific Settlement of International Disputes, 1928, read together with Articles 36 (1) and 37 of the Statute of the Court. Respectively on 14 September 1931 and 26 June 1934, Greece and Turkey acceded to this instrument, which is still in force for both of them. The texts of these accessions were accompanied by declarations which are irrelevant to the present case."
"All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice."
The Article thus provides, under certain conditions, for the reference to the former Permanent Court of International Justice of disputes with regard to which the parties are in conflict as to their respective rights. Article 37 of the Statute of this Court, however, states that:
"Whenever a treaty or convention in force provides for reference of a matter to... the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice."
The effect of that Article, as this Court emphasized in the Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, case (I.C.J. Reports 1964, at pp. 31 -39) is that, as between parties to the Statute, this Court is substituted for the Permanent Court in any treaty or convention in force, the terms of which provide for reference of a matter to the Permanent Court. Accordingly any treaty or convention providing for reference of any matter to the Permanent Court is capable as between the parties to the present Statute of furnishing a basis for establishing the Court’s jurisdiction in regard to a dispute, on condition that the treaty or convention applies to the particular matter in question and is in force as between the parties to that dispute. Clearly, Article 17 of the General Act of 1928, here invoked by Greece, contains a jurisdictional clause which does provide for reference to the Permanent Court of certain specified matters, namely, "all disputes with regard to which the parties are in conflict as to their respective rights". It follows that, if the 1928 Act is considered to be a convention in force between Greece and Turkey and applicable to the "matter" which is the subject of the present dispute, the Act, read in combination with Article 37, and Article 36, paragraph 1, of the Statute, may suffice to establish the Court’s jurisdiction in the present case.
"Whereas the amendments hereafter mentioned are of a nature to restore to the General Act its original efficacy;
Whereas these amendments will only apply as between States having acceded to the General Act as thus amended and, as a consequence, will not affect the rights of such States, parties to the Act as established on 26 September 1928, as should claim to invoke it in so far as it might still be operative."
The Secretariat, in a memorandum of 4 May 1948, had provided a list of the States which up to 31 July 1946 had acceded to the 1928 Act and that list included both Greece and Turkey. The publication Multilateral treaties in respect of which the Secretary-General performs depositary functions—List of signatures, notifications, accessions, etc., as at 31 December 1977 lists Greece and Turkey.
"Thus, not only has an opportunity of presenting observations been given to Turkey, but Turkey has in fact, in the letter which it has sent to the Court and in the document, availed itself of that opportunity of presenting observations."
"Sont exclus des procédures décrites par l’Acte général, sans en excepter celle de conciliation visée à son chapitre I:
a) les différends nés de faits antérieurs, soit à l’adhésion de la Grèce, soit à l’adhésion d’une autre Partie avec laquelle la Grèce viendrait à avoir un différend;
b) les différends portant sur des questions que le droit international laisse à la compétence exclusive des Etats et, notamment, les différends ayant trait au statut territorial de la Grèce, y compris ceux relatifs à ses droits de souveraineté sur ses ports et ses voies de communication."
"The following disputes are excluded from the procedures described in the General Act, including the procedure of conciliation referred to in Chapter I:
(a) disputes resulting from facts prior either to the accession of Greece or to the accession of another Party with whom Greece might have a dispute;
(b) disputes concerning questions which by international law are solely within the domestic jurisdiction of States, and in particular disputes relating to the territorial status of Greece, including disputes relating to its rights of sovereignty over its ports and lines of communication."
"(a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute;
(b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States;
(c) Disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories."
When a multilateral treaty thus provides in advance for the making only of particular, designated categories of reservations, there is clearly a high probability, if not an actual presumption, that reservations made in terms used in the treaty are intended to relate to the corresponding categories in the treaty. Nor does the fact that the instrument of accession includes in a single paragraph two categories of disputes which are listed in the treaty as separate categories, by itself, in any way diminish that probability. When making reservations under the General Act, States have not, as a rule, meticulously followed the pattern of reservations set out in Article 39, paragraph 2; and they have not infrequently grouped together in one paragraph two or more reservations listed separately in the Act.
first, however, the Turkish side consistently maintained the position that reference of the dispute to the Court was to be contemplated only on the basis of a joint submission after the conclusion of a special agreement defining the issues to be resolved by the Court. Even the Greek Government, while arguing in favour of immediate submission of the dispute to the Court, referred to the drafting of a special agreement as "necessary" for submitting the issue to the Court (Notes Verbales of 2 October and 19 December 1975, Application, Ann. IV, Nos. 2 and 4). It is also significant that nowhere in the diplomatic exchanges or in the negotiations between the experts does the Greek Government appear to have invoked the Joint Communiqué as an already existing and complete, direct title of jurisdiction. Furthermore, although in a Note Verbale of 27 January 1975, before any Joint Communiqué existed, the Greek Government expressly reserved its "right to initiate Court proceedings unilaterally" (presumably having in mind the General Act), the Court has not found any mention by Greece, prior to the filing of the Application, of the possibility that the dispute might be submitted to the Court unilaterally on the basis of the Joint Communiqué.
by 12 votes to 2,
finds that it is without jurisdiction to entertain the Application filed by the Government of the Hellenic Republic on 10 August 1976.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this nineteenth day of December, one thousand nine hundred and seventy-eight, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the Hellenic Republic and to the Government of the Republic of Turkey respectively.