| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.5. | Provisional Measures and Merits |
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Passage through the Great Belt
(Finland / Denmark),
Provisional Measures,
Order of 29 July 1991,
I.C.J. Reports 1991, p. 12
[p. 17] 22. Whereas it is the purpose of provisional measures to
preserve "rights which are the subject of dispute in judicial proceedings"
(United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1979,
p. 19, para. 36; see also Frontier Dispute, I.C.J. Reports 1986, p. 8,
para. 13); whereas the Court notes that the existence of a right of Finland of
passage through the Great Belt is not challenged, the dispute between the
Parties being over the nature and extent of that right, including its
applicability to certain drill ships and oil rigs; whereas such a disputed right
may be protected by the indication of provisional measures under Article 41 of
the Statute if the Court "considers that circumstances so require";
[pp. 19-20] 30. Whereas Finland contends further that completion of
the East Channel Bridge will be only the final step in a continuous process in
which Finnish rights are already being irreparably harmed; whereas Finland
observes that the interrelation between the various elements of the Great Belt
project has as a consequence that completion of any one element would reduce the
possibilities of modifying other elements so as to enable effect to be given to
a judgment of the Court in Finland's favour on the merits, and in this
connection has drawn attention to the fact that, according to Denmark, tender
offers for the construction of the East Channel Bridge expire on 18 August 1991;
whereas Finland concludes that there is thus urgency, inasmuch as many of the
activities involved in the project anticipate a final closing of the Great Belt
by excluding practical possibilities for accommodating Finnish interests and
giving effect to Finnish rights in the event of a judgment in favour of Finland;
31. Whereas it has been argued on behalf of Denmark in the course of the
proceedings on the request for provisional measures that, if the Court ruled in
favour of Finland on the merits, any claim by Finland could not be dealt with by
an order for restitution, but could only be satisfied by damages inasmuch as
restitution in kind would be excessively onerous; whereas the Court is not at
present called upon to determine the character of any decision which it might
make on the merits; whereas in principle however if it is established that the
construction of works involves an infringement of a legal right, the possibility
cannot and should not be excluded a priori of a judicial finding that
such works must not be continued or must be modified or dismantled;
32. Whereas no action taken pendente lite by a State engaged in a
dispute before the Court with another State "can have any effect whatever
as regards the legal situation which the Court is called upon to define" (Legal
Status of the South-Eastern Territory of Greenland, P.C.I.J., Series A/B, No.
48, p. 287), and such action cannot improve its legal position vis-à-vis
that other State;
33. Whereas it is for Denmark, which is informed of the nature of Finland's
claim, to consider the impact which a judgment upholding it could have upon the
implementation of the Great Belt project, and to decide whether or to what
extent it should accordingly delay or modify that project;
34. Whereas likewise it is for Finland, which is informed of the Great Belt
project, to decide whether or not to promote reconsideration of ways of enabling
drill ships and oil rigs to pass through the Danish Straits in the event that
the Court should decide that construction of the East Channel Bridge with a
clearance of 65 metres would not infringe any right appertaining to Finland;
[p. 22 Decl. Tarassov] I see the main significance of the present
Order in the Court's resolute intention to prevent a situation from arising in
which, pendente lite, both the Parties to the case, the Court itself,
and also all States interested in free and unimpeded maritime navigation through
the Great Belt (which by virtue of conventional and customary international law,
has the status of an international strait), might be confronted with a fait
accompli, which could be brought about in the event of an accelerated
continuation by Denmark of its present construction plans for the bridge,
without any modification.
[p. 36 S.O. Shahabuddeen] My conclusion is that a State requesting
interim measures, such as Finland, is required to establish the possible
existence of the rights sought to be protected in the sense in which Judge
Anzilotti spoke of the Court, by a summaria cognitio, taking "into
account the possibility of the right claimed ... and the possibility
of the danger to which that right was exposed". In my opinion, the opposite
cannot credibly be argued after the United States Diplomatic and Consular
Staff in Tehran case. However, for the reasons given above, I think Finland
has met that test. It is on other grounds that its request fails.
[p. 38 S.O. Broms] The present Order confirms the above-mentioned
Danish assurances given to the Court. What is most important, however, is the
provision included in paragraph 32, whereby the Court underlines the
well-established legal norm that a State engaged in a dispute before the Court
with another State cannot improve its legal position vis-à-vis that other
State by any action taken pendente lite, and no such action "can
have any effect whatever as regards the legal situation which the Court is
called upon to define" (Legal Status of the South-Eastern Territory of
Greenland, P.C.I.J., Series A/B, No. 48, p. 287). This concerns naturally
both Parties but, taking into account the circumstances of the present case,
this principle is especially important as a guarantee to Finland against any
detrimental change which might be undertaken by the territorial power of the
Great Belt.
