50.
DISSENTING OPINION BY LORD FINLAY.

This case arose out of a collision between the Lotus, a French
liner, and the Turkish steamer Boz-Kourt. It took place off
Cape Sigri, in Mitylene, not within territorial waters but on the high
seas. The Boz-Kourt was sunk and eight persons, sailors and
passengers, were drowned. The officer of the watch on board the
Lotus was Lieutenant Demons, and on the arrival of the Lotus
at Constantinople, he was arrested by the Turkish authorities and
put on his trial on charge of having committed an offence under
Article 6 of the Turkish Penal Code.

That article is as follows:

“Quand un étranger commet contre un Turc en pays étran-
ger un acte susceptible d’entrainer pour son auteur, d’après
les dispositions du Code pénal turc, un emprisonnement de
plus d’une année, cet étranger sera jugé par les tribunaux et
conformément aux lois pénales de Turquie, s’il est trouvé sur
le territoire turc.

“En pareil cas, les poursuites ne peuvent avoir lieu que
sur la plainte de la Partie lésée ou sur celle du ministre de la
Justice.”

We have not got before us the documents in the proceedings
before the Turkish Courts, but it is clear that Demons was charged
with having brought about the collision by his negligence and
thereby causing the death of the eight Turks who were drowned.
He was convicted and sentenced to fine and imprisonment.

The French Government alleged that the proceedings in the
Turkish Courts were without jurisdiction, and by the compromis
dated October rath, 1926, made between the French and the
Turkish Governments, the dispute was referred to the Permanent
Court of International Justice. Article 1 of the compromis is as
follows :

“La Cour permanente de Justice internationale sera priée
de statuer sur les questions suivantes :

“1) La Turquie a-t-elle, contrairement à l’article 15 de la
Convention de Lausanne du 24 juillet 1923 relative à l’établis-
sement et à la compétence judiciaire, agi-en contradiction des
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY SI

principes du droit international — et, si oui, de quels principes
— en exerçant, à la suite de la collision survenue le 2 août
1926 en haute mer entre le vapeur français Lotus et le
vapeur Boz-Kourt et lors de l’arrivée du navire français à
Stamboul, en même temps que contre le capitaine du vapeur
turc, des poursuites pénales connexes en vertu de la législa-
tion turque, contre le sieur Demons, officier de quart à bord
du Lotus au moment de la collision, en raison de la perte
du Boz-Kourt ayant entraîné la mort de huit marins et
passagers turcs ?

2) ”

The question for the Court is whether Turkey in this matter
acted in contravention of the principles of international law; in
other words, had the Turkish Courts jurisdiction to try and convict
Demons ?

Article 15 of the Convention of Lausanne provides that “in all
matters under reserve of Article 16 questions of judicial competence
shall, in the relations between Turkey and the other contracting
Powers, be regulated conformably to the principles of international
law”. ,

This clearly refers to the general principles of international
Jaw in the ordinary sense of the term and it applies to criminal as
well as to civil proceedings. Article 16 is for present purposes
irrelevant. |

The question for the Court is one purely of criminal law. The
practice with regard to crimes committed at sea has been that the
accused should be tried by the courts of the country to which his
ship belongs, with the possible alternative of the courts of the
country to which the offender personally belongs, if his nationality
is different from that of the ship. There has been only one excep-
tion: pirates have been regarded as hostes humani generis and
might be tried in the courts of any country.

In the ordinary course any trial of Demons on a charge of having
by criminal negligence in navigation caused the sinking of the
Turkish vessel by collision would have been held in a French court,
as France was his country as well as that of the flag of the ship.
He was tried and convicted by a Turkish court and according to
Turkish law.
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY 52

The first point with which the Court has to deal is this : What is
the exact meaning of the question put in the compromis: La
Turquie a-t-elle agi en contradiction des principes du droit inéer-
national ?

It has been argued for Turkey that this question implies that
France, in order to succeed, must point to some definite rule of
international law forbidding what Turkey did. I am unable to
read the compromis in this sense. What it asks is simply whether
the Turkish Courts had jurisdiction to try and punish Demons ;
if international law authorizes this, the question would be answered,
in the affirmative, otherwise in the negative. The compromis:
cannot, with any fairness, be read so as to require France to produce:
some definite rule forbidding what was done by Turkey. If ‘the:
Turkish proceedings were not authorized by international law,
Turkey acted en contradiction des principes du droit international.
There is no mention of any “rule” but only of “principles”.

The. question is put in the compromis with perfect fairness as
between the two countries and the attempt to torture it into
meaning that France must produce a rule forbidding what Turkey
did arises from a misconception. The question is whether the
principles of international law authorize what Turkey did in this
matter.

I.

It was argued for Turkey that the délit committed by Demons
was committed on board the BozKourt when by a faulty
manœuvre of his she was struck by the Lotus, and as the Boz-
Kourt was a Turkish ship she must, it was said, be regarded as
part of Turkish territory, and the délit was therefore committed
on Turkish territory as much as if it had been committed on shore
within the territorial limits of Turkey. .

This is a new and startling application of a metaphor and, if it
is held good, it would mean that if there is a collision on the high
seas between a Turkish vessel and a ship of any other nationality,
any of the officers and crew of that other ship may be arrested in
any Turkish port and put on their trial before a Turkish court on a.
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY 53

criminal charge of having caused the collision by their negligence.
This view appears to be based on a misconception of the proposition
that a ship on the high seas may be regarded as part of the territory
of the country whose flag she flies.

Turkey’s case is that the crime was committed in Turkish territory,
namely, on a Turkish ship on the high seas, and that the Turkish
Courts therefore have a territorial jurisdiction. . A ship is a movable
chattel, it is not a place ; when on a voyage it shifts its place from
day to day and from hour to hour, and when in dock it is a chattel
which happens at the time to be in a particular place. The juris-
diction over crimes committed on a ship at sea is not of a territorial
nature at all. It depends upon the law which for convenience and
by common consent is applied to the case.of chattels of such a very
special nature as ships. It appears to me to be impossible with
any reason to apply the principle of locality to the case of ships
coming into collision for the purpose of ascertaining what court has
jurisdiction ; that depends on the principles of maritime law.
Criminal jurisdiction for negligence causing a collision is in the
courts of the country of the flag, provided that if the offender is
of a nationality different from that of his ship, the prosecution may
alternatively be in the courts of his own country.

The case seems to me clear on principle, but there is also authority
which points to the same conclusion.

In the Franconia case (R. v. Keyn, 1877, 2 Ex. Div. 63),
was argued for the Crown that there was jurisdiction in the Doi
Courts to try a charge of manslaughter on the very ground which
we are now considering.

Keyn was in command of a German ship and by his negligence
he came into collision with a British vessel, the Strathclyde ;
the Strathclyde was sunk and an English passenger on board her
was drowned. Keyn was found guilty of manslaughter at the
Central Criminal Court. The question of jurisdiction was argued
in the Court for Crown Cases Reserved. It was urged that there
was jurisdiction in the English Courts on the ground that Keyn
had committed manslaughter on board a British ship. The colli-
sion took place within the territorial waters but this for present
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY 54

purposes is immaterial. As Amphlett, J. A., said (page 118 of the
Report in 2 Ex. Div.), this ground was quite independent of the
three-mile zone and if valid would justify the conviction of the
prisoner, had the offence been committed in the middle of the ocean.
It was decided by eleven out of the thirteen judges who formed the
Court that the conviction could not be supported on this ground.

. The point so decided is exactly the same as that which arises in the
present case. The decision was that the fact that death was caused
on board the British ship by the criminal negligence of the captain
of the foreign ship did not give jurisdiction to the English Courts
to try him on the criminal charge. This was the case of a collision
between a German and a British ship and on the face of it raised
a question of international law. By eleven judges to two it was
held that this did not give jurisdiction to the English Court. I do
not think it is correct to say that this raised only a question of
English law. As the ships were of different nationalities, the deci-
sion depended on the principles of international law. International
law, wherever applicable, is considered as part of the law of England,
and our judges must apply it accordingly. It seems to me that it
is not right to treat R. v. Keyn as if it had been a decision merely
on a question of English municipal law. The judges cannot have
overlooked the fact that they were dealing with vessels of different
nationalities and the decision must have proceeded on the law
applicable to such a case. The decision of course proceeded upon
the view which the English Court took of the international law on
the point, but it was international law which they had to apply.
The decision is not binding upon this Court but it must be regarded
as of great weight and cannot be brushed aside as turning merely
on a point of English municipal law. Some expressions used by
one of the two dissentient judges (Denman, J.) might give rise on
a hasty perusal to the idea that the case turned on English law.
These expressions occur on page 100 and page ror of the Report
(ubt supra). The learned judge was discussing the meaning of
Section 22 of the Statute 4 and 5 William IV, Chapter 36, giving
jurisdiction to the Central Criminal Court to try offences committed
on the high seas. He said: “This question appears to me to turn
mainly upon the question : where is the offence committed? And
in deciding this question I think we are bound to decide according
to the principles of English law.” He went on to say that one prin-
JUDGMENT No. 9.—-DISSENTING OPINION BY LORD FINLAY 55

ciple of English law is that a British ship as regards criminal offences
committed on board of her is to be treated as British territory, and.
as much subject to our law as any other part of the Queen’s domi-
nions. These expressions of Mr. Justice Denman do not appear to
me to have any relevance to the question of the law applicable in
the case of a collision between a British and a foreign ship.

IT.

Turkey, however, has another ground upon which she contends
that there was jurisdiction. The judgment of the Permanent
Court is silent with reference to this point; as the Court was
in favour of Turkey upon the first point,—that with which I have
been hitherto dealing,—it was thought unnecessary for them to
pronounce upon this further point. But as I have the misfortune
to differ from the conclusion at which the Court arrived on the first
point, it is necessary for me to deal with this further point. We
have had the advantage of very full and most elaborate arguments
upon it.

Turkey asserts that the trial of Demons before the Turkish Courts
was justified by Article 6 of the Turkish Penal Code, above set out,
on the ground that Demons, by his negligent navigation of the
Lotus resulting in the collision and loss of Turkish lives, had been
guilty of an act which, by Turkish law when he came to Turkey,
rendered him liable to prosecution for it in the Turkish Courts
according to that article. It has by consent been assumed for the
purposes of the case that the collision off Cape Sigri was en pays
étranger within the meaning of the article and the question for
us is one of international law only.

The passing of such laws to affect aliens is defended on the ground
that they are necessary for the “protection” of the national. Every
country has the right and the duty to protect its nationals when out
of their own country. If crimes are committed against them when
abroad, it may insist on the offenders being brought to justice, but
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY 56

this must be done in the proper way and before tribunals having
jurisdiction. The government of the country of the injured person
is entitled to bring pressure to bear upon the government of the
offender to have him brought to justice, but it has no right to assert
for this purpose in its own courts a jurisdiction which they do not
possess.

The Law of Nations does not recognize the assumption of juris-
‘diction for “protection” ; there never has been any such general
consent by the nations as would be required to make this doctrine
a part of international law. Any State which finds it necessary
to acquire such a power should by convention get the consent of
the other States affected. Such a convention would of course have
to define the limits and conditions affecting the exercise of the power.
A country is no more entitled to assume jurisdiction over foreigners
than it would be to annex a bit of territory which happened to be
very convenient for it. Any such convention affecting the jurisdic-
tion to try crimes by negligence in navigation would of course
require the most careful consideration as to the definition of what
amounted to criminal negligence for this purpose. It would be
extraordinary if it should appear that jurisdiction had been
conferred, leaving it to the court of the country in each case to
determine what was criminal negligence for the purposes of such
jurisdiction. oe |

I desire to refer to what was said by Mr. Oppenheim on this
subject of “Protection” (Vol. I, ‘Peace’, p. 230, paragraph 147) :

“Many States claim jurisdiction and threaten punishment for
‘certain acts committed by a foreigner in foreign countries. States
which claim jurisdiction of this kind threaten punishment for
certain acts either against the State itself, such as high treason,
forging bank-notes, and the like, or against its citizens, such
as murder or arson, libel and slander, and the like. . These States
cannot, of course, exercise this jurisdiction as long as the foreigner
concerned remains outside their territory. But if, after the com-
mittal of such act, he enters their territory and comes thereby under
their territorial supremacy, they have an opportunity of inflicting
punishment. The question is, therefore, whether States have a right
JUDGMENT No. 9.—-DISSENTING OPINION BY LORD FINLAY 57

to jurisdiction over acts of foreigners committed in foreign
countries, and whether the home State of such an alien has a
duty to acquiesce in the latter’s punishment in case he comes into
‘the power of these States. The question, which is controversial,
ought to be answered in the negative. For at the time such criminal
acts are committed, the perpetrators are neither under the territorial
nor under the personal supremacy of the States concerned. And
a State can only require respect for its laws from such aliens
as are permanently or transiently within its territory. No right
for a State to extend its jurisdiction over acts of foreigners com-
mitted in foreign countries can be said to have grown up according
to the Law of Nations, and the right of protection over citizens
abroad held by every State would justify it in an intervention in
case one of its citizens abroad should be required to stand his
trial before the courts of another State for criminal acts which
he did not commit during the time he was under the territorial
supremacy of such State.”

This passage, in my opinion, is an accurate statement of the
international law applicable. Its value is not affected by the fact
referred to in the- notes on page 240 that continental publicists
have thought otherwise ; we are concerned with the question what
international law is, not what it ought to be.

Mr. Oppenheim went on to refer to the case of Cutting, which
arose between Mexico and the United States in 1886, the facts of
which have been already stated in the course of the present pro-
ceedings. Nothing was decided in the Cutting case and the ques-
tion of jurisdiction continued to form a subject of discussion among
jurists. Inthe British Year Book of International Law for 1925 there
will be found on page 44 ef sgg. an article by Mr. W. E. Beckett
on ‘The Exercise of Criminal Jurisdiction over Foreigners”, in
which the history of the controversy up to date is given.

This Court never can have to consider whether ‘protection’
of this sort is or is not desirable. The question for the Court
must always be, in the absence of convention, simply whether
it has been adopted by the common consent of nations as a part
of international law. Asa plain matter of fact, it appears to me
JUDGMENT No. 9.—DISSENTING OPINION BY LORD FINLAY 58

that it has not yet been so adopted. The Court, of course, could
never allow itself to be entangled in arguments for and against
the theory. The question simply is whether, by general consent,
“protection” of this kind has become a part of international
law. If that question is answered in the negative, as I think it
must be, Article 6 of the Turkish Penal Code did not bind France,
and the jurisdiction of the Turkish Court to try Demons could not
be supported on this ground.

Of course, every country has the right to protect the persons and
the property of its citizens. If a wrong is done, the State may
demand redress and enforce it, but the assertion that any State
can by any law of its own assume criminal jurisdiction in respect
of alleged crimes committed abroad or on the high seas is a new one.
The government of the country of the injured person may call
upon the government of the country where the injury was committed
to have the offenders punished in due course by law, but it cannot
make laws for their punishment in its own courts, except in
pursuance of a convention with the other Power affected.

In my opinion, both the grounds on which Turkey has tried to
support the conviction are unsound and France is entitled to the
judgment of this Court. |

(Signed) FINLAY.


                              DECLARATION OF VICE-PRESIDENT GEVORGIAN

       Disagreement with the Court’s finding on prima facie jurisdiction  Consent as a
fundamental principle underlying the Court’s jurisdiction  The acts invoked by Ukraine do not fall
under the scope of the Genocide Convention  The actual dispute relates to the use of force which
is not covered by the Genocide Convention  Importance for the Court to maintain its settled
jurisprudence  Support for adoption of the non-aggravation clause.

       1. I could not join the majority on the first and second provisional measure indicated by the
Court in this Order, purely on a substantial legal ground  I do not believe that the Court has
jurisdiction to entertain this case. Ultimately, the jurisdiction of every international court emanates
from the consent of States to subject a dispute between them to the binding settlement by a judicial
body. This is a well-established principle of general international law and also firmly embodied in
the Court’s Statute 1. Accordingly, no State can, without its consent, be compelled to submit its
disputes to the Court 2.

       2. States can express this consent in several ways, for example by recognizing the Court’s
jurisdiction as compulsory under Article 36 (2) of its Statute, or by expressing a narrower form of
consent via a compromissory clause, which allows the Court to adjudicate disputes relating to a
specific treaty. Since neither the Russian Federation nor Ukraine have lodged a declaration under
Article 36 (2) of the Statute to accept the Court’s jurisdiction as compulsory, Ukraine based its claim
exclusively on Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide (hereinafter “Genocide Convention”). Article IX of said Convention states that:

              “Disputes between the Contracting Parties relating to the interpretation,
       application or fulfilment of the present Convention, including those relating to the
       responsibility of a State for genocide or for any of the other acts enumerated in
       article III, shall be submitted to the International Court of Justice at the request of any
       of the parties to the dispute.”

       3. In a letter to the Court, the Russian Federation indicated its opposition to the Court’s
jurisdiction and noted that Article IX does not apply to the situation at hand 3. In particular, the
Russian Federation considers that Ukraine seeks to bring before the Court issues relating to the use
of force, which are not governed by the Genocide Convention and, therefore, do not come within the
jurisdiction of the Court 4.

      4. As the Court has stated multiple times, in order to establish jurisdiction under Article IX of
the 1948 Genocide Convention, the subject-matter of the dispute must relate to the interpretation,

       1 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26; Case of the Monetary Gold

Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland, and United States
of America), Preliminary Question, Judgment, I.C.J. Reports 1954, p. 32.
       2 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, p. 27; Mavrommatis Palestine

Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16.
       3 Letter by H.E. Mr. Alexander V. Shulgin, Ambassador of the Russian Federation to the Kingdom of the
Netherlands, dated 7 March 2022.
       4 Ibid., paras. 4 and 13.

                                                          -2-

application or fulfilment of the Convention 5. While it must not decide in a definitive manner that it
has jurisdiction over the merits of the case at this stage of the proceedings, the Court must
nevertheless ascertain whether the provisions relied on by Ukraine appear, prima facie, to afford a
basis on which its jurisdiction could be founded 6. Accordingly, the Court must analyse whether the
acts complained of by Ukraine are capable of falling within the provisions of the Genocide
Convention and, as a consequence, the dispute is one which the Court has jurisdiction
ratione materiae to entertain 7.

       5. It is evident that the dispute that Ukraine seeks to bring before the Court, in reality, relates
to the use of force by the Russian Federation on Ukrainian territory. However, neither is the use of
force regulated by the Genocide Convention nor does the use of force in itself constitute an act of
genocide. The Court has been very clear in this regard in the 1999 Legality of the Use of Force cases,
where it held that

       “the threat or use of force against a State cannot in itself constitute an act of genocide
       within the meaning of Article II of the Genocide Convention; and whereas, in the
       opinion of the Court, it does not appear at the present stage of the proceedings that the
       bombings which form the subject of the Yugoslav Application ‘indeed entail the
       element of intent, towards a group as such, required by the provision quoted above’” 8.

       6. Accordingly, the Court found that it had no prima facie jurisdiction under the Convention
to adjudicate upon the bombardment of Serbia by NATO member States 9. As the Court has noted in
Croatia v. Serbia, it will not depart from its settled jurisprudence (jurisprudence constante) unless it
finds “very particular reasons to do so” 10. Yet, the situation in the precent case is similar as it concerns
the use of force without a legal link to genocide. Nothing in Ukraine’s Application for provisional
measures indicates that the military operations launched by the Russian Federation demonstrate the
element of intent necessary for acts of genocide. Therefore, the dispute Ukraine aims to have
adjudicated upon by the Court does not fall within the scope of the Convention. As a result, the Court
manifestly lacks jurisdiction ratione materiae to entertain this Application, and, consequently, to
indicate provisional measures.

      7. To circumvent this problem, Ukraine claims that the Convention embodies a right “not to
be subjected to another State’s military operations on its territory based on a brazen abuse of Article I
of the Genocide Convention” 11. This argument is unconvincing and undermines the fundamental
requirement that jurisdiction emanates from consent. Under the interpretation advanced by Ukraine,
any purportedly illegal act, including the unauthorized use of force, could be shoehorned into a

        5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993,
p. 16, para. 26; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, 1.C.J.
Reports 1999 (I), p. 137, para. 37.
     6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.

Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 9, para. 16.
       7 Ibid., p. 10, para. 20; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June

1999, 1.C.J. Reports 1999, p. 138, para. 38.
       8 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, 1.C.J.

Reports 1999, p. 138, para. 40.
       9 Ibid., para. 41.

       10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),

Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 428, para. 53. See also Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28.
       11 Ukraine’s Request for the indication of provisional measures, para. 12.

                                                         -3-

random treaty as long as the subject-matter regulated by this treaty had some role in the political
considerations preceding the respective act.

      8. With regard to Ukraine’s claim that the Russian Federation is falsely invoking Ukraine’s
responsibility for acts of genocide, an additional problem arises. I remain unconvinced that Ukraine
can invoke the compromissory clause under Article IX of the Convention only to have the Court
confirm its own compliance. Such “non-violation complaints” cannot be brought before the Court in
absence of a compromis or specific treaty-based authorization. Applications of this type have only
been entertained by the Court when they were brought under the much broader jurisdictional basis
of Article 36 (2) of the Statute 12, or in combination with an actual violation complaint of the treaty
in question 13.

       9. Taking into account all the legal considerations explained above, I come to the conclusion
that the Court lacks prima facie jurisdiction to entertain this case. Accordingly, the Court should have
dismissed Ukraine’s request for provisional measures.

       10. Despite my position on the absence of prima facie jurisdiction in this case, I have voted in
favour of the third provisional measure indicated in the Court’s Order, namely that both Parties shall
refrain from any action which might aggravate or extend the dispute or make it more difficult to
resolve. The power to indicate such measure is a power inherent to the Court, and not necessarily
linked to the Court’s prima facie jurisdiction over the parties’ substantive rights or obligations on the
merits of a case.

                                                                       (Signed)      Kirill GEVORGIAN.

                                                    ___________

        12 Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment,

I.C.J. Reports 1952, p. 176.
       13 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident

at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9.


315 FISHERIES JURISDICTION (ORDER 12 VII 73)

indication of provisional measures, the rights which may subsequently be
adjudged by the Court to belong respectively to the Parties;

Accordingly,
THE Court,
by 11 votes to 3,

Confirms that the provisional measures indicated in operative para-
graph (1) of the Order of 17 August 1972 should, subject to the power of
revocation or modification conferred on the Court by paragraph 7 of
Article 61 of the 1946 Rules, remain operative until the Court has given
final judgment in the case.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of July, one thousand nine
hundred and seventy-three, in four copies, one of which will be placed in
the archives of the Court, and the others transmitted respectively to the
Government of the Republic of Iceland, to the Government of the Federal
Republic of Germany and to the Secretary-General of the United Nations
for transmission to the Security Council.

(Signed) Manfred LACHS,
President.

(Signed) S. AQUARONE,
Registrar.

Judge IGNACIO-PINTO makes the following declaration:

I concurred in the Court’s Orders of 17 August 1972 granting the
United Kingdom in one case, and the Federal Republic of Germany in
the other, the interim measures of protection they had requested in their
dispute with Iceland; but I am unable to concur in the present Order. I
have voted against it for reasons based on the following considerations:

1. The Court, in confirming the interim measures indicated in the
earlier Order of 17 August 1972, has not, in my view, taken sufficient
account of the circumstances that have arisen since that Order was made.

In my view, bearing.in mind Article 61, paragraph 7, of its Rules, the
Court ought first to have ascertained with care whether the new aspects
of the situation did not necessitate either the revocation or, at least, the
modification of the terms of the Order of 17 August 1972.

6
316 FISHERIES JURISDICTION (DECL. IGNACIO-PINTO)

The reason is that, as no-one can be unaware, there have been numerous
clashes in the disputed fishery-zone between Icelandic coastguard vessels
and trawlers flying the British or Federal German flag. Some of these
incidents, such as collision between two vessels or the firing of shells by
Icelandic coastguard vessels, were in my view grave enough to warrant
the exercise by the Court of its right to modify the terms of its original
decision.

2. Furthermore, these incidents, in my judgment, constitute so many
flagrant violations on either side of the operative part of the Orders of
17 August 1972. The measures should therefore be reviewed, and others
indicated concerning inter alia the presence of warships.

It is true that the present Order is made “‘subject to the power of revoca-
tion or modification” conferred on the Court by Article 61, paragraph 7,
of its Rules, but the renewal of the interim measures indicated on 17
August 1972 until the Court has given final judgment in the case is fraught
with risk, given the prevailing tension between the disputants. If other,
much graver incidents were to occur before final judgment was given, the
Court would be open to criticism for failure to exercise vigilance.

Such are the considerations which precluded me from joining the
majority of the Court in voting for the present Order.

Judges Gros and PETREN append dissenting opinions to the Order of
the Court.

(Initialled) M.L.
(Initialled) S.A.