| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.2. | Questions of Procedure |
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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
[pp. 17-18] 23. Whereas provisional measures under Article 41 of the
Statute are indicated "pending the final decision" of the Court on the
merits of the case, and are therefore only justified if there is urgency in the
sense that action prejudicial to the rights of either party is likely to be
taken before such final decision is given;
24. Whereas it is stated by Denmark, and not contested by Finland, that,
according to the planned schedule for construction of the East Channel Bridge, "no
physical hindrance for the passage through the Great Belt will occur before the
end of 1994", when cable works for that bridge are due to be initiated; and
whereas Denmark contends (inter alia) that by that time the case could
have been finally decided by the Court, so that no indication of provisional
measures is required.
25. Whereas Denmark contends that there is no urgency justifying the
indication of provisional measures also on the ground that the construction of
the East Channel Bridge will hardly represent any practical hindrance for the
passing of drill ships and oil rigs through the Danish Straits, inasmuch as most
of the units in question (drill ships and jack-ups) will be able to pass through
the Sound without technical alterations (in the case of jack-ups, by being
towed) and the remainder (semi-submersible drilling units) will be able to pass
under the planned East Channel Bridge if part of the drilling tower (derrick) is
left unassembled until after passage of the bridge; whereas these contentions
are not accepted by Finland, which asserts that for a number of the units
constructed since 1972 by a Finnish company, Rauma-Repola Offshore Oy, and a
number of those currently tendered for by that company, the Great Belt has been
or will be the only practicable passage-way to and from the Baltic;
26. Whereas it appears to the Court that the right claimed by Finland is to
passage specifically through the Great Belt of its drill ships and oil rigs,
without modification or disassembly, in the same way as such passage has been
effected in the past; whereas the Court cannot at this interlocutory stage of
the proceedings suppose that interference with the right claimed by Finland
might be justified on the grounds that the passage to and from the Baltic of
drill ships and oil rigs might be achieved by other means, which may moreover be
less convenient or more costly; whereas accordingly if construction works on the
East Channel Bridge which would obstruct the right of passage claimed were
expected to be carried out prior to the decision of the Court on the merits in
the present proceedings, this might justify the indication of provisional
measures;
27. Whereas however the Court, placing on record the assurances given by
Denmark that no physical obstruction of the East Channel will occur before the
end of 1994, and considering that the proceedings on the merits in the present
case would, in the normal course, be completed before that time, finds that it
has not been shown that the right claimed will be infringed by construction work
during the pendency of the proceedings;
[pp. 18-19] 28. Whereas Finland claims moreover not only that
continuation of the Danish project as planned will cause irreparable damage to
the right of passage claimed by Finland but that the project is already causing
such damage to tangible economic interests inasmuch as Finnish shipyards can no
longer fully participate in tenders regarding vessels, including drill ships and
oil rigs, which would be unable to pass through the Great Belt after completion
of the East Channel Bridge; and that the existence of the bridge project in its
present form is having and will continue to have a negative effect on the
behaviour of potential customers of those shipyards;
29. Whereas however evidence has not been adduced of any invitations to
tender for drill ships and oil rigs which would require passage out of the
Baltic after 1994, nor has it been shown that the decline in orders to the
Finnish shipyards for the construction of drill ships and oil rigs is
attributable to the existence of the Great Belt project; whereas accordingly
proof of the damage alleged has not been supplied;
