19
AEGEAN SEA
(JUDGMENT)
Registrar, at the direction of the Court, informed the Turkish Ambassador
to the Netherlands that his Government had the right to address to the
Court in writing any observations that it might have on the Greek request.
It was in these circumstances that, by its letter of 25 August 1976, the
Turkish Government transmitted to the Court the document entitled
"Observations of the Government of Turkey on the request by the Government of Greece for provisional measures of protection dated The Hague,
10 August 1976". In those observations the Turkish Government specifically referred to the right conferred upon it by Article 39, paragraph 3, of
the General Act to invoke Greece's reservation (b) on the basis of reciprocity, and then stated: "In conformity with this provision, Turkey
opposes reservation (b)." In the view of the Court, that forma1 statement,
made in response to a communication from the Court, must be considered
as constituting an "enforcement" of the reservation within the meaning of,
and in conformity with, Article 39, paragraph 3, of the Act.
44. The Turkish Government, it is true, was not represented at the
public hearings on Greece's request for the indication of provisional
measures, and did not afterwards file a preliminary objection or take any
steps in the proceedings. But there is no provision in the Rules of Court
which excludes the submission of written observations on a request for
provisional measures; nor is there any provision which excludes the raising
of questions of jurisdiction in written observations submitted in proceedings on the indication of provisional measures. On the contrary, in view of
the urgency of a request for provisional measures, written communications
not submitted through an agent but either directly or through the Ambassador in The Hague have invariably been admitted by the Court; while one
of the very purposes of such communications has cornmonly been to raise
questions as to the competence of the Court with respect to the particular
case (Anglo-Zranian Oil Co., Z. C.J. Reports 1951, p. 9 1; Fisheries Jurisdiction, I. C.J. Reports 1972, pp. 14 and 32; Nuclear Tests, 1.C.J. Reports 1973,
pp. 100 and 136-137; Trial of Pakistani Prisoners of War, 1.C.J. Reports
1973, p. 329).
45. In the present case, the Turkish Government's observations were
immediately communicated to the Greek Agent, and they were referred to
by counsel for Greece during the hearings concerning the request for
interim measures. Indeed, counsel for Greece then expressly recognized
that by reason of the title given to the document the Turkish Government
had placed itself "within the context of Article 66, paragraph 8, of the
Rules of Court", adding:
"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."