18
AEGEAN SEA
(JUDGMENT)
41. The Greek Govemment has advanced the contention at the public
hearings that reservation (b) should, in any event, be left out of consideration altogether by the Court because the question of its effect on the
application of the General Act with respect to the present dispute was not
raised by Turkey as a preliminary objection in conformity with Article 67
of the Rules of Court. Consequently, in its view, since Turkey has not filed
a preliminary objection in accordance with the conditions laid down in
Article 67 of the Rules, it cannot be regarded as having "enforced" the
reservation in conformity with Article 39, paragraph 3, of the General
Act.
42. The Greek Government recognizes that "the Court, whose jurisdiction is international, is not bound to attach to matters of form the same
degree of importance which they might possess in municipal law" (Mavrommatis Palestine Concessions, P. C.Z.J., SeriesA, No. 2, at p. 34); and also
that in previous cases where the respondent has not appeared, the Court
has taken into account al1 the elements before it, including those supplied
by extra-procedural communications from the respondent, for the purpose
of satisfying itself as to whether its jurisdiction was established. It further
recognizes that, even when the respondent has not informed the Court of
its attitude, the Court hasproprio motu enquired into the possible objections to its jurisdiction in the case. It maintains, however, that in previous
cases the Court has never gone further than to take account of "object i o n ~ ,"legal
~ , arguments" or "contentions" advanced by the respondent or
conceived of by the Court (cf. FisheriesJurisdiction, I.C.J. Reports 1973, at
pp. 7-8; Nuclear Tests, 1.C.J. Reports 1974, at pp. 257 and 46 1). It then asks
whether, in a case like the present, the Court can go so far as to substitute
itself for the absent govemment by enforcingproprio motu in place of that
government the reservation of the Applicant, thus assimilating the extraprocedural expression of a desire to take advantage of the reservation to
the procedural expression of a decision to enforce it. To do so, the Greek
Government suggests, would be to take liberties with the provisions both
of Article 39, paragraph 3, of the General Act and of Article 67 of the
Rules.
43. The procedural objection advanced by Greece to reservation (b)'s
being taken into consideration does not appear to the Court to be convincing. According to the information before the Court, no mention was made
of the General Act during the negotiations, so that the first mention of the
Act by Greece in the present dispute was in its Application filed on
10 August 1976, with which it also filed a request for interim measures of
protection. It was only then that the Turkish Government had occasion to
consider its position regarding the application of the General Act to the
present dispute. On 18 August 1976, the Greek and Turkish Governments
were informed, in conformity with Article 66, paragraph 8, of the Rules of
Court, that public hearings would open on 25 August 1976 to afford the
parties the opportunity of presenting their observations on the Greek
request for the indication of provisional measures. On 23 August the