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Summaries of the Decisions

Passage Through the Great Belt

(Finland v. Denmark)

By an application filed in the Registry of the Court on 17 May 1991, the Republic of Finland instituted proceedings against the Kingdom of Denmark in respect of a dispute concerning passage through the Great Belt (Store Bælt), allegedly to be impeded by a project of the Danish Government to construct a fixed traffic connection for both road and rail traffic across the West and East Channels of the Great Belt. The effect of this project, and in particular of the planned high-level suspension bridge over the East Channel, would be to close permanently the Baltic Sea for deep draught vessels of over 65 metres' height, thus preventing the passage of drill ships and oil rigs manufactured in Finland that required more than that clearance.

In its application, Finland founded the jurisdiction of the Court primarily on the declaration of acceptance of the jurisdiction of the Court deposited by both States under Article 36 of the Statute of the Court, and observed, moreover, that a basis of jurisdiction was also provided by the Optional Protocol of Signature of the Compulsory Settlement of Disputes adopted at Geneva by the First United Nations Conference on the Law of the Sea on 29 April 1958. Finland claimed that the Great Belt is a strait used for international navigation and that there is a right of free passage through the Great Belt, governed by the 1857 Treaty of Copenhagen on the Abolition of the Sound Dues and the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. In this respect, account had to be taken also of customary international law and of the transit passage régime of the 1982 United Nations Convention on the Law of the Sea. Finland claimed that such right of free passage through the Great Belt extended to drill ships and oil rigs and to ships of reasonably foreseeable design.

Therefore, Finland requested the Court to adjudge and declare that (a) there is a right of free passage through the Great Belt applying 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 such a right of passage; and (d) that Denmark and Finland should start negotiations, in good faith, on how such a right of free passage should be guaranteed.

On 23 May 1991, Finland filed in the Registry of the Court a request for indication of provisional measures, relying on Article 41 of the Statute of the Court and Article 73 of the Rules of the Court. Finland requested the Court to indicate as provisional measures that (1) Denmark should, pending the decision by the Court on the merits, refrain from continuing or otherwise proceeding with such construction works in connection with the planned bridge project as would impede the passage of ships, including drill ships and oil rigs, to and from Finnish ports and shipyards; and that (2) Denmark should refrain from any other action that might prejudice the outcome of the pending proceedings.

As the Court did not include a judge of the nationality of either of the Parties, Denmark chose Mr. Paul Fischer and Finland, Mr. Bengt Broms, to sit as judges ad hoc.

On 28 June 1991, Denmark filed its written observations on the Finnish request for provisional measures and requested the Court (1) to adjudge and declare that this request be rejected and (2) in the alternative, and in the event that the Court should grant Finland's request in whole or in part, to indicate that Finland should undertake to compensate Denmark for any and all losses incurred in complying with such provisional measures, should the Court reject Finland's submissions on the merits.

Having heard oral arguments presented on behalf of the two Parties, the Court, on 29 July 1991, made an Order concerning the

Request for the Indication of Provisional Measures

(Order of 29 July 1991)

As regards its jurisdiction, the Court, recalling that it ought not to indicate provisional measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which this jurisdiction might be founded, noted that the Court's jurisdiction on the merits was not disputed and thus that it had the power to indicate provisional measures.

As to the problem whether to indicate the provisional measures requested by Finland, the Court set out by noting that the existence of a right of Finnland of passage through the Great Belt was not challenged, the dispute between the Parties being over its nature and extent, and concluded that such a disputed right may be protected by provisional measures.

The Court continued by observing that provisional measures are only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before a final decision is given. According to the planned schedule for construction of the East Channel Bridge, no physical hindrance for the passage through the Great Belt would occur before the end of 1994. Denmark contended that by that time the case could have finally decided by the Court, and so provisional measures were not required. Further, Denmark claimed that the construction of the East Channel Bridge would represent no real hindrance for the passage of drill ships and oil rigs as most of such units would be able to take another route, and the remainder, if left partly unassembled, would be able to pass under the planned bridge. In this context, the Court noted, however, that the right claimed by Finland was 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 had been possible in the past. The Court observed that it could not 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 might moreover be less convenient or more costly. The Court concluded that 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, this might justify the indication of provisional measures. The Court, placing on record the assurances given by Denmark that no physical obstruction of the East Channel would occur before the end of 1994, and considering that the proceedings on the merits would, in the normal course, be completed before that time, found, however, that it had not been shown that the right claimed would be infringed by construction work during the pendency of the proceedings.

As to Finland's claim that the Danish project was already causing damage to tangible economic interests of Finnland, the Court found that proof of the damage alleged had not been supplied.

Furthermore, Finland had observed that the inter-relation between the various elements of the Great Belt project had as a consequence that completion of any one element would reduce the possibilities of modifying other elements and that therefore there was urgency. Denmark had contended that, if the Court ruled in favour of Finland on the merits, any claim by Finnland 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. In this context, the Court, while not yet called upon to determine the character of any decision on the merits, observed that in principle if it is established that the construction of works involves an infringement of a legal right, the possibility could not and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled. The Court added that no action taken pendente lite by a State engaged in a dispute before the Court with another State could have any effect as regards the legal situation which the Court is called upon to define, and such action could not improve its legal position with respect to that other State. Finally, the Court stated that, pending a decision on the merits, any negotiation between the Parties with a view to achieving a direct and friendly settlement would be welcomed.

Therefore, the Court found, unanimously, that the circumstances as presented to the Court, were not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. Judge Tarassov appended a declaration to the Order and Vice-President Oda, Judge Shahabuddeen and Judge ad hoc Broms appended separate opinions.

In a letter dated 3 September 1992, the Agent of Finland stated that a settlement of the dispute between Finland and Denmark had been attained and notified the Court, pursuant to Article 89 of the Rules of the Court, of the discontinuance of the case by Finland. By letter dated 4 September 1992, the Agent of Denmark stated that Denmark had no objection to the discontinuance. In accordance with the Court's practice, the President of the Court, by an Order of 10 September 1992, placed on record the discontinuance by the Republic of Finland of the proceedings instituted by the Application of 17 May 1991 and ordered that the case be removed from the list.