22 June 1973

 

General List No. 58

 
     

international Court of Justice

     
 

Nuclear Tests

 
     

Australia

 

v. 

France

     
     
 

Order

 
     
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BEFORE: Vice-President: Ammoun, Acting President;
Judges: Forster, Gros, Bengzon, Petren, Onyeama, Ignacio-Pinto, de Castro, Morozov, Jimenez de Arechaga, Sir Humphrey Waldock, Nagendra Singh, Ruda;
Judge ad hoc: Sir Garfield Barwick
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1973.06.22_nuclear_tests1.htm
   
Citation: Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 99 (Order of June 22)
 
     
 
 
     
 

[p.99]

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court,

Having regard to Article 66 of the Rules of Court,

Having regard to the Application by Australia filed in the Registry of the Court on 9 May 1973, instituting proceedings against France in respect of a dispute concerning the holding of atmospheric tests of nuclear weapons by the French Government in the Pacific Ocean, and asking the [p 100] Court to adjudge and declare that the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law, and to order that the French Republic shall not carry out any further such tests,

Makes the following Order:

1. Having regard to the request dated 9 May 1973 and filed in the Registry the same day, whereby the Government of Australia, relying on Article 33 of the General Act of 1928 for the Pacific Settlement of International Disputes and on Article 41 of the Statute and Article 66 of the Rules of Court, asks the Court to indicate, pending the final decision in the case brought before it by the Application of the same date, the following interim measures of protection:

"The provisional measures should be that the French Government should desist from any further atmospheric nuclear tests pending the judgment of the Court in this case";

2. Whereas the French Government was notified by telegram the same day of the filing of the Application and request for indication of interim measures of protection, and of the precise measures requested, and copies of the Application and the request were at the same time transmitted to it by express mail;

3. Whereas, pursuant to Article 40, paragraph 3, of the Statute and Article 37, paragraph 2, of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court;

4. Whereas pursuant to Article 31, paragraph 2, of the Statute, the Government of Australia chose the Right Honourable Sir Garfield Barwick, Chief Justice of Australia, to sit as judge ad hoc in the case;

5. Whereas the Governments of Australia and France were informed by communications of 14 May 1973 that the President proposed to convene the Court for a public hearing on 21 May 1973 to afford them the opportunity of presenting their observations on the Australian request for the indication of interim measures of protection, and by further communications of 17 May 1973 the date and time for such hearing were confirmed;

6. Whereas by a letter dated 16 May 1973 from the Ambassador of France to the Netherlands, handed by him to the Registrar the same day, the French Government stated that it considered that the Court was manifestly not competent in the case and that it could not accept the Court's jurisdiction, and that accordingly the French Government did not intend to appoint an agent, and requested the Court to remove the case from its list; [p 101]

7. Whereas at the opening of the public hearings, which were held on21, 22, 23 and 25 May 1973, there were present in court the Agent, Co-Agent, counsel and other advisers of the Government of Australia;

8.Having heard the observations on the request for interim measures on behalf of the Government of Australia, and the replies on behalf of that Government to questions put by Members of the Court, submitted by Mr. P. Brazil, Senator the Honourable Lionel Murphy, Mr. R. J.Ellicott, Q.C., Mr. M. H. Byers, Q.C., Mr. E. Lauterpacht, Q.C., and Professor D. P. O'Connell;

7. Having taken note of the final submission of the Government of Australia made at the hearing of 23 May 1973, and filed in the Registry the same day, which reads as follows:

"The final submission of the Government of Australia is that the Court, acting under Article 33 of the General Act and Article 41 of the Statute of the Court, should lay down provisional measures which require the French Government to desist from carrying out further atmospheric nuclear tests in the South Pacific pending the judgment in this case."

10. Having taken note of the written reply give by the Agent of the Government of Australia on 31 May 1973 to two questions put to him by a Member of the Court;

11. Noting that the French Government was not represented at the hearings; and whereas the non-appearance of one of the States concerned cannot by itself constitute an obstacle to the indication of provisional measures;

12. Whereas the Governments of Australia and France have been afforded an opportunity of presenting their observations on the request for the indication of provisional measures;

13. Whereas on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

14. Whereas in its Application and oral observations the Government of Australia claims to found the jurisdiction of the Court on the following provisions:

(i) Article 17 of the above-mentioned General Act of 1928, read together with Articles 36, paragraph 1, and 37 of the Statute of the Court;
(ii) Alternatively, Article 36, paragraph 2, of the Statute of the Court and the respective declarations of Australia and France made thereunder;

15. Whereas, according to the letter of 16 May 1973 handed to the Registrar by the French Ambassador to the Netherlands, the French [p 102] Government considers, inter alia, that the General Act of 1928 was an integral part of the League of Nations system and, since the demise of the League of Nations, has lost its effectivity and fallen into desuetude; that this view of the matter is confirmed by the conduct of States in regard to the General Act of 1928 since the collapse of the League of Nations; that, in consequence, the General Act cannot serve as a basis for the competence of the Court to deliberate on the Application of Australia with respect to French nuclear tests; that in any event the General Act of 1928 is not now applicable in the relations between France and Australia and cannot prevail over the will clearly and more recently expressed in the declaration of 20 May 1966 made by the French Government under Article 36, paragraph 2, of the Statute of the Court; that paragraph 3 of that declaration excepts from the French Government's acceptance of compulsory jurisdiction "disputes concerning activities connected with national defence"; and that the present dispute concerning French nuclear tests in the Pacific incontestably falls within the exception contained in that paragraph;

16. Whereas in its oral observations the Government of Australia maintains, inter alia, that various matters, including certain statements of the French Government, provide indications which should lead the Court to conclude that the General Act of 1928 is still in force between the parties to that Act; that the General Act furnishes a basis for the Court's jurisdiction in the present dispute which is altogether independent of the acceptances of compulsory jurisdiction by Australia and by France under Article 36, paragraph 2, of the Statute; that France's obligations under the General Act with respect to the acceptance of the Court's jurisdiction cannot be considered as having been modified by any subsequent declaration made by her unilaterally under Article 36,paragraph 2, of the Statute; that if the reservation in paragraph 3 of the French declaration of 20 May 1966 relating to "disputes concerning activities connected with national defence" is to be regarded as one having an objective content, it is questionable whether nuclear weapon development falls within the concept of national defence; that if this reservation is to be regarded as a self-judging reservation, it is invalid, and in consequence France is bound by the terms of that declaration unqualified by the reservation in question;

17. Whereas the material submitted to the Court leads it to the conclusion, at the present stage of the proceedings, that the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded; and whereas the Court will accordingly proceed to examine the Applicant's request for the indication of interim measures of protection;

*

18. Whereas the Government of Australia, in replying to a question [p 103] put during the oral observations, stated that it bases its request for the indication of provisional measures "first and foremost on Article 41 of the Statute of the Court", and that it bases its request on Article 33 of the above-mentioned General Act of 1928 only subsidiarily in the eventuality that the Court should find itself able, on the material now before it, to reach the conclusion that the General Act is still in force;

19. Whereas the Court is not in a position to reach a final conclusion on this point at the present stage of the proceedings, and will therefore examine the request for the indication of interim measures only in the context of Article 41 of the Statute;

20. Whereas the power of the Court to indicate interim measures under Article 41 of the statute has as its object to preserve the respective rights of the Parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings and that the Court's judgment should not be anticipated by reason of any initiative regarding the matters in issue before the Court;

21. Whereas it follows that the Court in the present case cannot exercise its power to indicate interim measures of protection unless the rights claimed in the Application, prima facie, appear to fall within the purview of the Court's jurisdiction;

22. Whereas the claims formulated by the Government of Australia in its Application are as follows:

(i) The right of Australia and its people, in common with other States and their peoples, to be free from atmospheric nuclear weapon tests by any country is and will be violated;
(ii) The deposit of radio-active fall-out on the territory of Australia and its dispersion in Australia's airspace without Australia's consent:

(a) violates Australian sovereignty over its territory;
(b) impairs Australia's independent right to determine what acts shall take place within its territory and in particular whether Australia and its people shall be exposed to radiation from artificial sources;

(iii) the interference with ships and aircraft on the high seas and in the superjacent airspace, and the pollution of the high seas by radioactive fall-out, constitute infringements of the freedom of the high seas;

23. Whereas it cannot be assumed a priori that such claims fall completely outside the purview of the Court's jurisdiction, or that the Government of Australia may not be able to establish a legal interest in respect of these claims entitling the Court to admit the Application;

24. Whereas by the terms of Article 41 of the Statute the Court may [p 104] indicate interim measures of protection only when it considers that circumstances so require in order to preserve the rights of either party;

25. Whereas the Government of Australia alleges, inter alia, that a series of atmospheric nuclear tests have been carried out by the French Government in the Pacific during the period from 1966 to 1972, including the explosion of several hydrogen bombs and a number of devices of high and medium power; that during recent months there has been a growing body of reports, not denied by the French Government, to the effect that the French Government is planning to carry out a further series of atmospheric nuclear tests in the Pacific in 1973; that this series of tests may extend to 1975 and even beyond that date; that in diplomatic correspondence and in discussions earlier in the. present year the French Government would not agree to cease nuclear testing in the atmosphere in the Pacific and would not supply Australia with any information as to the dates of its proposed tests or the expected size and yield of its explosions; and that in a statement made in the French Parliament on 2 May 1973 the French Government indicated that, regardless of the protests made by Australia and other countries, it did not envisage any cancellation or modification of the programme of nuclear testing as originally planned;

26. Whereas these allegations give substance to the Australian Government's contention that there is an immediate possibility of a further atmospheric nuclear test being carried out by France in the Pacific;

27. Whereas the Government of Australia also alleges that the atmospheric nuclear explosions carried out by France in the Pacific have caused wide-spread radio-active fall-out on Australian territory and elsewhere in the southern hemisphere, have given rise to measurable concentrations of radio-nuclides in foodstuffs and in man, and have resulted in additional radiation doses to persons living in that hemisphere and in Australia in particular; that any radio-active material deposited on Australian territory will be potentially dangerous to Australia and its people and any injury caused thereby would be irreparable; that the conduct of French nuclear tests in the atmosphere creates anxiety and concern among the Australian people; that any effects of the French nuclear tests upon the resources of the sea or the conditions of the environment can never be undone and would be irremediable by any payment of damages; and any infringement by France of the rights of Australia and her people to freedom of movement over the high seas and superjacent airspace cannot be undone;

28. Whereas the French Government, in a diplomatic Note dated 7 February 1973 and addressed to the Government of Australia, the text of which was annexed to the Application in the present case, called attention to Reports of the Australian National Radiation Advisory Committee [p 105] from 1967 to 1972, which al1 concluded that the fall-out from the French tests did not constitute a danger to the health of the Australian population; whereas in the said Note the French Government further expressed its conviction that in the absence of ascertained damage attributable to its nuclear experiments, they did not violate any rule of international law, and that, if the infraction of the law was alleged to consist in a violation of a legal norm concerning the threshold of atomic pollution which should not be crossed, it was hard to see what was the precise rule on which Australia relied;

29. Whereas for the purpose of the present proceedings it suffices to observe that the information submitted to the Court, including Reports of the United Nations Scientific Committee on the Effects of Atomic Radiation between 1958 and 1972, does not exclude the possibility that damage to Australia might be shown to be caused by the deposit on Australian territory of radio-active fall-out resulting from such tests and to be irreparable;

30. Whereas in the light of the foregoing considerations the Court is satisfied that it should indicate interim measures of protection in order to preserve the right claimed by Australia in the present litigation in respect of the deposit of radio-active fall-out on her territory;

31. Whereas the circumstances of the case do not appear to require the indication of interim measures of protection in respect of other rights claimed by Australia in the Application;

*

32. Whereas the foregoing considerations do not permit the Court to accede at the present stage of the proceedings to the request made by the French Government in its letter dated 16 May 1973 that the case be removed from the list;

33. Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case, or any questions relating to the admissibility of the Application, or relating to the merits themselves, and leaves unaffected the right of the French Government to submit arguments in respect of those questions;

34. Having regard to the position taken by the French Government in its letter dated 16 May 1973 that the Court was manifestly not competent in the case and to the fact that it was not represented at the hearings held between 21 May and 25 May on the question of the indication of interim measures of protection;

35. Whereas, in these circumstances, it is necessary to resolve as soon as possible the questions of the Court's jurisdiction and of the admissibility of the Application;[p 106]

Accordingly,

The Court

Indicates, by 8 votes to 6, pending its final decision in the proceedings instituted on 9 May 1973 by Australia against France, the following provisional measures:

The Governments of Australia and France should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case; and, in particular, the French Government should avoid nuclear tests causing the deposit of radio-active fall-out on Australian territory;

Decides that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the dispute, and of the admissibility of the Application;

Fixes as follows the time-limits for the written proceedings:

21 September 1973 for the Memorial of the Government of Australia;
21 December 1973 for the Counter-Memorial of the French Government;
And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-second day of June 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 French Government, to the Government of Australia, and to the Secretary-General of the United Nations for transmission to the Security Council.

(Signed) F. Ammoun,
Vice-President.

(Signed) S. Aquarone,
Registrar.

Judge Jimenez de ArEchaga makes the following declaration:

I have voted in favour of the Order for the reasons stated therein, but wish to add some brief comments on the relationship between the question of the Court's jurisdiction and the indication of interim measures. [p 107]

I do not believe the Court should indicate interim measures without paying due regard to the basic question of its jurisdiction to entertain the merits of the Application. A request should not be granted if it is clear, even on a prima facie appreciation, that there is no possible basis on which the Court could be competent as to the merits. The question of jurisdiction is therefore one, and perhaps the most important, among all relevant circumstances to be taken into account by a Member of the Court when voting in favour of or against a request for interim measures.

On the other hand, in view of the urgent character of the decision on provisional measures, it is obvious that the Court cannot make its answer dependent on a previous collective determination by means of a judgment of the question of its jurisdiction on the merits.

This situation places upon each Member of the Court the duty to make, at this stage, an appreciation of whether—in the light of the grounds invoked and of the other materials before him—the Court will possess jurisdiction to entertain the merits of the dispute. From a subjective point of view, such an appreciation or estimation cannot be fairly described as a mere preliminary or even cursory examination of the jurisdictional issue: on the contrary, one must be satisfied that this basic question of the Court's jurisdiction has received the fullest possible attention which one is able to give to it within the limits of time and of materials available for the purpose.

When, as in this case, the Court decides in favour of interim measures, and does not, as requested by the French Government, remove the case from the list, the parties will have the opportunity at a later stage to plead more fully on the jurisdictional question. It follows that that question cannot be prejudged now; it is not possible to exclude a priori, that the further pleadings and other relevant information may change views or convictions presently held.

***

The question described in the Order as that of the existence of "a legal interest in respect of these claims entitling the Court to admit the Application" (para. 23) is characterized in the operative part as one relating to the admissibility of the Application. The issue has been raised of whether Australia has a right of its own—as distinct from a general community interest—or has suffered, or is threatened by, real damage. As far as the power of the Court to adjudicate on the merits is concerned, the issue is whether the dispute before the Court is one "with regard to which the parties are in conflict as to their respective rights" as required by the jurisdictional clause invoked by Australia. The question thus appears to be a limited one linked to jurisdiction rather than to admissibility. The distinction between those two categories of questions is indicated by Sir [p 108] Gerald Fitzmaurice in I.C.J. Reports 1963, pages 102-103, as follows:

".. .the real distinction and test would seem to be whether or not the objection is based on, or arises from, the jurisdictional clause or clauses under which the jurisdiction of the tribunal is said to exist. If so, the objection is basically one of jurisdiction."

Article 17 of the General Act provides that the disputes therein referred to shall include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice. Among the classes of legal disputes there enumerated is that concerning "the existence of any fact which, if established, would constitute a breach of an international obligation" (emphasis added). At the preliminary stage it would seem therefore sufficient to determine whether the parties are in conflict as to their respective rights. It would not appear necessary to enter at that stage into questions which really pertain to the merits and constitute the heart of the eventual substantive decision such as for instance the establishment of the rights of the parties or the extent of the damage resulting from radio-active fall-out.

Judge Sir Humphrey Waldock makes the following declaration:

I concur in the Order. I wish only to add that, in my view, the principles set out in Article 67, paragraph 7, of the Rules of Court should guide the Court in giving its decision on the next phase of the proceedings which is provided for by the present Order.

Judge Nagendra Singh makes the following declaration:

While fully supporting the reasoning leading to the verdict of the Court, and therefore voting with the majority for the grant of interim measures of protection in this case, I wish to lend emphasis, by this declaration, to the requirement that the Court must be satisfied of its own competence, even though prima facie, before taking action under Article 41 of the Statute and Rule 61 (New Rule 66) of the Rules of Court.

It is true that neither of the aforesaid provisions spell out the test of competence of the Court or of the admissibility of the Application and the request, which nevertheless have to be gone into by each Member of the Court in order to see that a possible valid base for the Court's competence exists and that the Application is, prima facie, entertainable. I am, therefore, in entire agreement with the Court in laying down a positive test regarding its own competence, prima facie established, which was enunciated in the Fisheries Jurisdiction FN1 case and having been reiterated in this [p 109] case may Se said to lay down not only the latest but also the settled jurisprudence of the Court on the subject.

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FN1 Fisheries Jurisdiction (United Kingdom v. Zeeland), I.C.J. Reports 1972, Order of 17 August 1972, paras. 15 to 17, pp. 15 to 16.
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It is indeed a sine qua non of the exercise of judicial function that a court can be moved only if it has competence. If therefore in the exercise of its inherent powers (as enshrined in Art. 41 of its Statute) the Court grants interim relief, its sole justification to do so is that if it did not, the rights of the parties would get so prejudiced that the judgment of the Court when it came could be rendered meaningless. Thus the possibility of the Court being ultimately able to give a judgment on merits should always be present when interim measures are contemplated. If, however, the Court were to shed its legal base of competence when acting under Article 41 of its Statute, it would immediately expose itself to the danger of being accused of discouraging governments from:

"...undertaking, or continuing to undertake, the obligations of judicial settlement as the result of any justifiable apprehension that by accepting them they may become exposed to the embarrassment, vexation and loss, possibly following upon interim measures, in cases in which there is no reasonable possibility, prima facie ascertained by the Court, of jurisdiction on the merits. Accordingly, the Court cannot, in relation to a request for indication of interim measures, disregard altogether the question of its competence on the merits. The correct principle which emerges from these apparently conflicting considerations and which has been uniformly adopted in international arbitral and judicial practice is as follows: The Court may properly act under the terms of Article 41 provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction." (Separate opinion of Sir Hersch Lauterpacht in Interhandel case, I.C.J. Reports 1957, p. 118.)

It needs to be mentioned, therefore, that even at this preliminary stage of prima facie testing the Court has to examine the reservations and declarations made to the treaty which is cited by a party to furnish the base for the jurisdiction of the Court and to consider also the validity of the treaty if the same is challenged in relation to the parties to the dispute. As a result of this prima facie examination the Court could either find:

(a) that there is no possible base for the Court's jurisdiction in which event no matter what emphasis is placed on Article 41 of its Statute, the Court cannot proceed to grant interim relief; or
(b) that a possible base exists, but needs further investigation to come to any definite conclusion in which event the Court is inevitably left no option but to proceed to the substance of the jurisdiction of the case to complete its process of adjudication which, in turn, is time [p 110] consuming and therefore comes into conflict with the urgency of the matter coupled with the prospect of irreparable damage to the rights of the parties. It is this situation which furnishes the "raison d'ętre" of interim relief.

If, therefore, the Court, in this case, has granted interim measures of protection it is without prejudice to the substance whether jurisdictional or otherwise which cannot be prejudged at this stage and will have to be gone into further in the next phase.

Judge ad hoc Sir Garfield Barwick makes the following declaration:

I have voted for the indication of interim measures and the Order of the Court as to the further procedure in the case because the very thorough discussions in which the Court has engaged over the past weeks and my own researches have convinced me that the General Act of 1928 and the French Government's declaration to the compulsory jurisdiction of the Court with reservations each provide, prima facie, a basis on which the Court might have jurisdiction to entertain and decide the claims made by Australia in its Application of 9 May 1973. Further, the exchange of diplomatic notes between the Governments of Australia and France in 1973 afford, in my opinion, at least prima facie evidence of the existence of a dispute between those Governments as to matters of international law affecting their respective rights.

Lastly, the material before the Court, particularly that appearing in the UNSCEAR reports provides reasonable grounds for concluding that further deposit in the Australian territorial environment of radio-active particles of matter is likely to do harm for which no adequate compensatory measures could be provided.

These conclusions are sufficient to warrant the indication of interim measures.

I agree with the form of the provisional measures indicated, understanding that the action prescribed is action on the part of governments and that the measures are indicated in respect only of the Australian Government's claim to the inviolability of its territory.

Judges Forster, Gros, Petren and Ignacio-Pinto append dissenting opinions to the Order of the Court.

(Initialled) F.A.
(Initialled) S.A. [p 111]

DISSENTING OPINION OF JUDGE FORSTER

[Translation]

I am unable to add my vote to those of the majority advocating the cessation of French nuclear tests in the Pacific for the duration of the present proceedings, which will end on a date which neither the Court nor anyone can possibly foretell.

I have voted against the Order of today's date indicating a provisional measure in that sense.
My refusal was dictated by the following considerations:

The indication of provisional measures is essentially governed by Article 41 (1) of the Statute of the International Court of Justice, which provides as follows:

"The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party."

To exercise this power conferred by Article 41, the Court must have jurisdiction. Even when it considers that circumstances require the indication of provisioinal measures, the Court, before proceeding to indicate them, must satisfy itself that it has jurisdiction. Neither the provisional character of the measures nor the urgency of the requirement that they be indicated can dispense the judge from the necessity of ascertaining his jurisdiction in limine litis; especially when it is seriously and categorically contested by the State proceeded against, which is the case at present.

I am aware of the existence of certain past decisions from which it has been deduced that this ascertainment of our jurisdiction does not need to be more than summary at the stage of provisional measures. But this practice in the jurisprudence of the Court cannot in my view be made into a rule. For my part I consider that, however illustrious their reputations, Our predecessors on the Bench cannot now take Our place, nor can their decisions take the place of the one we have to render in an exceptionally difficult affair whose case-file they never held in their hands.

In my view the Court does not have two distinct kinds of jurisdiction: one to be exercised in respect of provisional measures and another to deal with the merits of the case. The truth of the matter is that there are some cases in which Our jurisdiction is so very probable as rapidly to decide us to indicate the provisional measures, whereas in other cases, like the present one, it is only after a thorough examination that Our jurisdiction, or lack of jurisdiction, can become apparent. [p 112]

I feel that the Court ought to have gone further in the examination of its jurisdiction before finding upon the Australian request for the indication of provisional measures.

The reason is that the central pillar upon which the Australian contentions rest is the General Act of 1928, to which France was a party and which conferred jurisdiction upon the Permanent Court of International Justice.

The 1928 General Act was revised on 28 April 1949, but France did not accede to that revised General Act. And it is precisely in this revised General Act of 1949 .that the International Court of Justice, Our tribunal, takes the place of the defunct Permanent Court of International Justice.

From a letter addressed to the Registrar of the Court on 16 May 1973 and its annex it transpires that France, in reply to the notifications made to it, considers that the 1928 General Act, an integral part of the defunct League of Nations system, has fallen into desuetude, is devoid of any efficacy and has been a subject of indifference for virtually all the signatory States, both before and after the dissolution of the League of Nations which gave it birth.

Against this moribund, if not well and truly dead General Act of 1928 France, while not appearing before the Court, firmly sets up its Declaration of 16 May 1966, which in conformity with Article 36, paragraph 2, of the Statute recognizes the jurisdiction of the Court as compulsory ipso facto on condition of reciprocity, except in relation to disputes concerning activities connected with national defence (third reservation to the Declaration of 16 May 1966).

This express reservation, which in terms that are crystal clear categorically excludes our jurisdiction when the dispute concerns activities connected with national defence, is no small matter, and the French nuclear tests in the Pacific do concern French national defence, or so it seems to me I would have liked the Court to consider at greater length the problem of jurisdiction raised by the confrontation of the 1928 General Act with the third reservation to the French Declaration of 16 May 1966. That problem should have been solved before making an Order which disregards the French reservation and oversteps the limits placed on our jurisdiction on 16 May 1966. I am very much afraid that the Order made t0da.y may leave in the minds of many the impression that the International Court of Justice henceforth considers the French reservation concerning its national defence, hence its security, the vital interest of the nation, to be null and void.

In my view it was imperatively necessary to solve certain important problems as a matter of priority before making any Order:

the problem of the survival of the 1928 General Act;

the problem raised by the confrontation of two undertakings in regard to international jurisdiction, one a treaty obligation binding several States and dating; from 1928, the other a unilateral and later commit –[p 113]ment which dates from 16 May 1966 and, by its reservations, restricts the jurisdiction of the International Court of Justice in comparison with the first;

the problem of the incompatibility of the undertakings under consideration.

These problems, moreover, should have been considered without ever losing sight of the fact that consent is an indispensable prerequisite to Our judging any State.

The Order made this day is an incursion into a French sector of activity placed strictly out of bounds by the third reservation of 16 May 1966. To cross the line into that sector, the Court required no mere probability but the absolute certainty of possessing jurisdiction. As I personally have been unable to attain that degree of certainty, I have declined to accompany the majority.

Furthermore, an additional consideration leads me to differ from the majority of my colleagues. The interim measures requested by Australia are so close to the actual subject-matter of the case that they are practically indistinguishable therefrom. Ultimately the only alternatives are the continuance or the cessation of the French nuclear tests in the Pacific. This is the substance of the case, upon which, in my opinion, it was not proper to pass by means of a provisional Order, but only by a final judgment.

In addition, the Order, by recommending the cessation, even the temporary cessation, of the French nuclear tests in the Pacific, may suggest that the Court has already formed a definite opinion on the lawfulness, or rather the unlawfulness, of the said tests. This, it seems to me, is what the Applicant was counting on; this is what it said, through the Solicitor-General of Australia, at the hearing of 22 May 1973:

"May I conclude, Mr. President, by saying that few Orders of the Court would be more closely scrutinized than the one which the Court will make upon this application. Governments and people al1 over the world will look behind the contents of that Order to detect what they may presume to be the Court's attitude towards the fundamental question of the legality of further testing of nuclear weapons in the atmosphere."

Thus this provisional Order is to permit of the detection of the Court's attitude towards the fundamental question of the legality of further testing of nuclear weapons in the atmosphere!

To my mind this warning by Australia, made in open court, reveals that the intention of the Applicant is to obtain, by means of a request for the indication of interim measures of protection, an actual judgment on the legality, or rather the illegality, of further nuclear tests.

I cannot lend myself to this, which is not what interim measures were intended for. [p 114]

The purpose of an Order indicating interim measures of protection is clearly laid down in Article 41 of the Statute, quoted above: to preserve the respective rights of either party, and not judgment on the legality or illegality of the matters complained of.

At the public hearing of 21 May 1973, Australia defined the rights to be protected as follows:

"Australia's rights under international law and the Charter of the United Nations to be safeguarded from further atmospheric nuclear weapon tests and their consequences, including:

(i) the right of Australia and its people to be free from atmospheric nuclear weapon tests by any country;
(ii) the inviolability of Australia's territorial sovereignty;
(iii) its independent right to determine what acts shall take place within its territory, and, in particular, whether Australia and its people shall be exposed to ionizing radiation from artificial sources;
(iv) the right of Australia and her people fully to enjoy the freedom of the high seas;
(v) the right of Australia to the performance by the French Republic of its undertaking contained in Article 33 (3) of the General Act for the Pacific Settlement of International Disputes to abstain from all measures likely 1.0 react prejudicially upon the execution of any ultimate judicial decision given in these proceedings and to abstain from any sort of action whatsoever which may aggravate or extend the present dispute between Australia and the French Republic."

France is absent from these proceedings; but I conceive that the right which it has and which is to be protected is that of every State, namely the right to undertake: in full sovereignty on its own territory any action appropriate for ensuring its immediate or future national security and national defence. Of course, in the exercise of this right each State remains responsible for any consequent injury to third parties.

Does the Order recommending the temporary cessation of French nuclear tests protect or "preserve" the respective rights of either party — the rights of France as well as those of Australia?

Such are the considerations which have led me to append this dissenting opinion.

(Signed) I. Forster. [p115]

DISSENTING OPINION OF JUDGE GROS

[Translation]

The declaration of acceptance of the Court's jurisdiction made by the French Government on 20 May 1966 excludes from that jurisdiction: ".. .disputes concerning activities connected with national defence." In a communication made to the Court on 16 May 1973 by the French Government that reservation was formally invoked. The bounds placed by that Government on its acceptance have been deemed by the Order not to create an impediment to the exercise of the Court's power to grant provisional measure:; in application of Article 41 of the Statute, since the Court considered that the title invoked by the Applicant to found the jurisdiction of the Court, namely the General Act of 1928, seemed sufficient, prima facie, both to justify its competence provisionally and to rule out the application of the 1966 reservation in the interim measures phase, without prejudging its later decision on these questions. I have therefore nothing to Say on the substance of the problems of jurisdiction and admissibility, since every question, without exception, concerning the Court's power to take jurisdiction in the case as presented in the Appli-cation of Australia, has been deferred to the next phase of the proceedings, instituted in the operative part of the Order.

But the decision of the Court indicating provisional measures constitutes an application which I cannot approve of two Articles of the Statute of the Court, Articles 53 and 41, and it is therefore proper that I should give the reasons for my dissent, successively on these two points which relate to the one phase of provisional measures.

***

When the Court was seised on 9 May 1973 of the Application instituting proceedings and indicating the French Republic as respondent, the fact was signified on the same day to the Government of the French Republic, which replied on 16 May 1973 by a document formally con-testing the jurisdiction of the Court and submitting that the case should be removed from the list. This was a document of 20 pages which constitutes a reply to the communications of the Court. The Court, before the first hearing, examined as in every case the question of the communication to the public of the documents in the proceedings, in accordance with Article 48 of the Rules of Court; in a letter to the Court dated 19 May 1973 the Agent of the Applicant made express reservations to the communication of the French document of 16 May 1973 and "any further documents from the: Government of France that do not accord with [p 116] regular procedures of the Court". On 21 May 1973, at the first hearing, counsel for the Government of Australia stated:

"Neither the Court nor Australia should have to deal with contentions advanced by a party if not made in Court but irregularly or outside the Court. We submit that strict adherence should be had to the requirements that parties must put their case regularly before the Court and that, if they fail to appear, then the Court should not take notice of any statement they may make outside the framework of the Court's established process. This rule has been a fundamental one throughout the ages for maintaining the integrity of the judicial process at every level. We trust that the Court will make clear that it will not take such statements into account."

And still, on the date of the present Order, the French document has not been communicated to the public, whereas the Australian Application and the records of the oral arguments of Australia were made public as from 21 May 1973.

The foundation f0.r such an attitude can only be found in a certain interpretation of Article 53 of the Statute or of the procedure of the Court in preliminary matters.

Article 53 of the Statute of the Court deals with the situation of States which contest the jurisdiction of the Court by failing to appear or to present submissions. Such deliberate non-participation is an act recognized in the procedure of the Court, being dealt with by an Article which is contained in Chapter III of the Statute, entitled "Procedure", and nowhere in the intentions of the authors of the Statute would one be able to find any will to penalize the State which does not appear. The contrary proposition has been pleaded without the support of any authority and should be dismissed. (Certainly, the absence of a State ought not to prejudice the action instituted by another State, and may not be allowed to interrupt the course of justice. But non-appearance is regulated by Article 53, which lays down what its consequences must be and, when non-appearance is noted, that Article must be applied. But that is what the Court did not do; the Order notes failure to appear, in paragraph 11, but takes into account the submissions of the document addressed to the Court by the French Government for the purpose of requesting that the case be removed from the list. Now, if there exist submissions of the Government cited as respondent in the case, there is no default for want of submissions. By pronouncing neither in one sense nor in the other, and by deferring to a later date its decision on the submissions of the French Government, the Court is giving an interpretation of Article 53 which I find erroneous.

That is not a minor problem and I regret that the Court should have deferred it to a later phase. By indicating at the opening of the first hearing that the French Government's request for the removal of the case from the list, which had "been duly noted", would be dealt with "in due [p 117] course", the President was only settling an immediate problem, but the Order has postponed the moment of decision still further. And that postponement implies that the Court considers it possible to treat the French Government both as a party to the main proceedings (cf. paras. 32 and 33 of the Order and the fixing of a time-limit for a French Counter-Memorial) and as beinl: in default in the present phase, because its failure to appear is noted in pa.ragraphs 11 and 34. But if the French Government has failed to appear and formally indicated its intention to remain outside the main proceedings, in a way which leaves no room for doubt, it was necessary to apply Article 53, which lays down the effects of default, and to apply it immediately.

It does not seem to me to be in accordance with the rules of procedure to suspend the application of Article 53 provisionally in the present case on the ground that this is an interim measures phase. Thus right from the outset an error in interpretation has been made with regard to Article 53. I need not recall the consistent jurisprudence of the Court as to the interpretation of its Statute: "The Court itself, and not the parties, must be the guardian of the Court's judicial integrity" (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29). it was therefore for the Court to decide, on the basis of its own reasons, whether its Statute and Rules lay down formalities which are indispensable, so that submissions made in any other way are to be treated as inadmissible, and whether, on that hypothesis, Article 53 should be applied to a twofold default, absence from the proceedings and failure to make submissions. Nothing of the kind was done, and the: status of the French document remains uncertain. Objection to it, on the: level of its very existence, has been taken by the Applicant, the decision on the submissions made in it has been postponed; it is impossible to deduce from the Order whether this document is or is not a pleading in the case which should have been taken into account on a footing of equality with the observations of the Applicant. For if the Statute and Rules of Court do not forbid the making of "submissions" in the way which was selected in this case, the French document should have been admitted as the observations of the respondent; and on the opposite assumption, it should have been rejected, and Article 53 applied as it was in the Judgment of 2 February 1973 (Fisheries Jurisdiction ( United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, para. 12).

The Court's postponement of the application of the effects of Article 53 until the later stages of the case is thus an implicit decision to refuse to apply Article 53 to an interim measures phase. This is a position which merits examination. Shortly expressed, the argument is that default does not necessarily have the same consequences in all phases of a case, and that while Article 53 does, in paragraph 2, lay down certain effects, those effects may be set aside when dealing with a request for interim measures of protection, despite the manifest intention of the State which is absent from the proceedings.

It could also be maintained that while Article 53 provides the party [p 118] interested in note being taken of default with the right to have that done, it does not do more, and the Court cannot take note of it proprio motu. It will be sufficient to observe in this respect that even if this were so, which in my view it is not, the Applicant has in the present case implicitly invoked Article 53 in the circumstances mentioned above, by making reference to the applicable provisions of the Statute and Rules of Court. But the French Government has indicated in a letter of 21 May 1973 that it is "not a party to this case"; it would appear difficult not to see in its statements of 16 and 21 May a formal intention to fail to appear. The Court surely could not overlook both the position taken up by the Applicant and that of the absent State, when they were at one in seeking that it take note of a failure to appear.

It should be added that it would be a sort of abuse of procedure to seek to make use of a failure to appear as a breach of the rules of procedure incurring the loss of the right to be heard by the Court, and thus create a penalty which the Statute itself formally forbids in Article 53, the main effect of which is that, when a failure to appear has been noted, the Court "must... satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law". It is not usual to advance at one and the same time an argument and its opposite; faced with a failure to appear, the Court, by postponing any decision on the effects of the failure to appear, has allowed some infringement of the equality which States must enjoy before a court.

The jurisdiction of the Court is limited on the one hand to the States which have accepted it, and on the other to commitments freely entered into. As a court of specific jurisdiction, the Court must above ail take care not to exceed the competence it derives from its Statute and from the voluntary acceptance of its jurisdiction by States, each of which freely determines the scope of the jurisdiction it confers upon the Court.

A State either is or is not subject to a tribunal. If it is not, it cannot be treated as a "party" to a dispute, which would be non-justiciable. The position which the Court has taken is that a State which regards itself as not concerned in a case, which fails to appear, and affirms its refusal to accept the jurisdiction of the Court, cannot obtain from the Court anything more than a postponement of the consideration of its rights. This is not what Article 53 says. Failure to appear is a means of denying jurisdiction which is recognized in the procedure of the Court, and to oblige a State to defend its position otherwise than by failure to appear would be to create an obligation not provided for in the Statute. It has been argued that the only way of challenging the jurisdiction of the Court is to employ a preliminary objection. The way in which States challenge the Court's jurisdiction is not imposed upon them by a formalism which is unknown in the procedure of the Court; when they consider that such jurisdiction does not exist, they may choose to keep out of what, for them, is an unreal dispute. Article 53 is the proof of this, and the Court must then satisfy itself of its own jurisdiction, and of the reality of the dispute brought before it. A State which fails to appear does of course run a risk, that of [p 119] not supplying the Court with all possible material for the consideration of its application for dismissal of the case. But that is a risk which the State, and it alone, is free to choose to take, and to compare with the risk which it would run as the result of a long drawn-out procedure in which it does not wish to participate, with regard to a matter which it considers to be wholly outside the Court's jurisdiction. Certain indications given in connection with the Order of 22 June 1973 show that the possibility of successive deferments is not ruled out.

The Permanent Court of International Justice gave a warning against the notion that an Application is sufficient to create a justiciable dispute: "... the Court's jurisdiction cannot depend solely on the wording of the Application." (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6,1925, P.C.I.J., Series A, No. 6, p. 15.)

If, as I think, failure to appear as provided for in Article 53 is not in itself subject to any sanction, it becomes evident that the reasons for such failure to appear, when they have been clearly stated, must be examined fully by the Court, and above all they must be formally accepted or rejected, and that without delay. The idea that a failure to appear is not opposable to the Court and to the Applicant because it is a case of a request for interim measures of protection is therefore, in my view, beside the point.

In the first place, no-one disputes "the connection which must exist under Article 61, paragraph 1, [now Art. 66, para. 11 of the Rules between a request for interim measures of protection and the original Application filed with the Court" (Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, para. 12). A request for interim measures of protection is thus a particular phase, but one which is not independent of the original Application; there is no magic in words, and it is impossible to believe that problems of jurisdiction, admissibility and reality of the principal Application can be conjured away simply by stating that these points, which are essential for a court of specific jurisdiction like this Court, are just being taken for granted provisionally, prima facie, without their being prejudged. It is in each individual case by reference to the jurisdictional problems in the widest sense, to the circumstances, and to the "respective rights of either party" (Art. 41, emphasis added) that a decision should be taken as to whether it is possible to indicate interim measures, and the forms of words used must correspond to reality.

Such was not the analysis of the power instituted in Article 41 of the Statute which was carried out in the present instance. The Court, by putting off the decision on the effects of non-appearance, embraced the proposition that a request for provisional measures is utterly independent in relation to the case which is the subject of the Application.

It is no use referring to certain domestic systems of law which feature such independence, because the Court has its own rules of procedure and must apply them in its jurisdictional system, which, as a corollary of a certain kind of international society, has been established on the basis [p 120] of the voluntary acceptance of jurisdiction. It is a fact of international life that recourse to adjudication is not compulsory; the Court has to take care lest, by the indirect method of requests for provisional measures, such compulsion be introduced vis-ŕ-vis States whose patent and pro-claimed conviction is that they have not accepted any bond with the Court, whether in a general way or with regard to a specified subject-matter.

If it were a question of a State whose non-appearance was due to the total absence of the Court's jurisdiction, whether for want of a valid jurisdictional clause or by reason of the inadmissible character of the principal claim, the immediate decision of lack of jurisdiction in regard to the Application instituting proceedings itself would be taken without delay; the decision of the Court in the present case is that, despite the affirmation that a certain subject-matter has been formally excluded from the jurisdiction of the Court, and the fact that the State which made that affirmation considers itself to be outside the jurisdiction of the Court in regard to everything connected with that subject-matter, it is possible to indicate provisional measures without prejudging the rights of that State.

In the decision which the Court has to take on any request for provisional measures, urgency is not a dominant and exclusive consideration; one has to seek, between the two notions of jurisdiction and urgency, a balance which varies with the facts of each case. If the jurisdiction is evident and the urgency also, then there is no difficulty, but that is an exceptional hypotheisis. When the jurisdiction is not evident, whether there is urgency or not, the Court must take the time needed for such an examination of the problems arising as will enable it to decide one way or the other, and that is something which it could have done without undue delay in the present instance with regard to various objections to its power to judge the case as described in the principal Application.

There is no presumption of the Court's jurisdiction in favour of the applicant, nor any presumption of its lack of jurisdiction in favour of the respondent: there is only the right of each of them to a proper and serious examination of its position.

A State does not have to wait two years or more for the Court to vindicate its claim that no justiciable dispute exists, for if that is the case there is nothing to be argued over; the other State, which has submitted the claim whose reality is contested, evidently has an equal right to have the Court acknowledge the existence of the dispute it invokes. But the equality between these claims is upset if, by the indirect means of the allegedly urgent necessity for the indication of provisional measures, a presumption operates in favour of the applicant without the Court's carrying out any serious appraisal of the objection. On behalf of the Applicant it has been pleaded that argument on all these problems will be presented later; that in itself is a negation of the claim of the other State to be immediately relieved of a dispute which it alleges not to exist. Thus, to maintain equality between the parties, in a case where objections [p 121] relating to the very stuff of the dispute are raised, the priority treatment of these objections is a necessity. In their joint dissenting opinion Judges McNair, Basdevant, Klaestad and Read wrote, with reference to the question of the obligation to submit to arbitration:

"Since there is nothing in the Declaration of 1926 to indicate an intention that prima facie considerations should be regarded as sufficient, it is Our opinion, based on the principle referred to above and the way in which this principle has been invariably applied, that the United Kingdom can only be held to be under an obligation to accept the arbitral procedure by application of the Declaration of 1926 if it can be established to the satisfaction of the Court that the difference as to the validity of the Ambatielos claim falls within the category of differences in respect of which the United Kingdom consented to arbitiration in the Declaration of 1926." (Ambatielos, Merits, I.C.J. Reports 1953, p. 29.)

President Winiarski also expressed himself in favour of the priority of certain questions of admissibility over questions of jurisdiction (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), I.C.J. Reports 1962, p. 449). Sir Gerald Fitzmaurice likewise, in a separate opinion, said:

"There are however other objections, not in the nature of objections to the competence of the Court, which can and strictly should be taken in advance of any question of competence. Thus a plea that the application did not disclose the existence, properly speaking, of any legal dispute between the parties, must precede competence, for if there is no dispute, there is nothing in relation to which the Court can consider whether it is competent or not. It is for this reason that such a plea would be rather one of admissibility or receivability than of competence:"

"In the general international legal field there is nothing corresponding to the procedures found under most national systems of law, for eliminating at a relatively early stage, before they reach the court which would otherwise hear and decide them, claims that are considered to be objectionable or not entertainable on some a priori ground. The absence of any corresponding 'filter' procedures in the Court's jurisdictional field makes it necessary to regard a right to take similar action, on similar grounds, as being part of the inherent powers or jurisdiction of the Court as an international tribunal." (Northern Cameroons, I.C.J. Reports 1963, pp. 105 and 106 f.)

It is this nexus of questions of jurisdiction and of admissibility which has been deferred by the Court to the next phase; it will then be for the Court, and then alone, to decide the fate of these questions in its judgment. [p 122]

A certain tendency has arisen to consider that the Orders of 17 August 1972 in the Fisheries Jurisdiction cases have, as it were, consolidated the law concerning provisional measures. But each case must be examined according to its own merits and, as Article 41 says, according to "the circumstances". Now the case of Iceland was entirely different in circumstances. The Court had developed an awareness of the existence of its own jurisdiction, the urgency was admitted, the reality and the precise definition of the dispute were not contested; finally, the right of the Applicant States which was protected by the Orders was recognized as being a right currently exercised, whereas the claim of Iceland constituted a modification of existing law. It suffices to enumerate these points to show that the situation is entirely different today; so far as the last point is concerned, the situation is now even the reverse, since the Applicants stand upon a claim to the modification of existing positive law when they ask the Court to recognize the existence of a rule forbidding the overstepping of a threshold of atomic pollution.

***

Such was the situation with which the Court found itself confronted when the application of Article 41 of the Statute in the present case was to be considered. The: objections which were made or could be made to the jurisdiction of the Court and the admissibility of the claim have a character of absolute priority. Article 41 does not give the Court a discretionary power but a competence bound by the conditions laid down in that text; it is necessary that "circumstances so require" and that the measures should be necessary to preserve "the respective rights of either party", which covers the same examination of fact and of law that Article 53, paragraph 2, imposes on the Court, in addition to the general obligation upon every judge, including a judge of urgent cases, to satisfy himself that he has jurisdiction; that is what Article 36, paragraph 6, recalls. Now, the examination of fact and of law which is the condition of any decision on provisional measures cannot be systematically put off until later with the indication that the Court's power under Article 41 of the Statute "presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings and that the Court's judgment should not be anticipated by reason of any initiative regarding the matters in issue before the Court" (Order, para. 20). That is to solve by a mere assertion the problem of the existence of the "circumstances" to which Article 41 refers. Article 41 obliges the Court to see whether the circumstances require it to use the power of indicating measures and, even if circumstances so require, it can only exercise that power if its decision will be able to preserve the respective rights of either party. But if the State cited as respondent invokes the Court's total absence of power, and if the subject of the claim is really non-existent, what rights would there be to preserve?

What has been said above with regard to the character of absolute priority attaching to certain objections shows that it is impossible to [p 123] escape from the necessity of settling such objections before indicating measures of protection; if there are no rights, there is nothing to protect. If the claim has no subject, the principal application falls to the ground, and with it the request for provisional measures. The objection is of so fundamental a nature in regard to the very bases of the Court's jurisdiction that it seems to me to be a misuse of language to Say that a jus standi to act in such circumstances could exist prima facie.

When the Court declares on the basis of Article 41 that a decision indicating provisional measures prejudges neither the jurisdiction nor the merits, that is not a finding which is likely to reassure States as to the temporary and circumstantial nature of that decision; it is an assertion that the examination of the case by the Court in accordance with the criteria of Article 41 of the Statute enables it, in the circumstances of this case, to consider that its decision cannot in fact prejudge either its jurisdiction or the question of jus standi. It is not just a kind of ritual formula, but a warranty that the Court is satisfied that Article 41 has been correctly interpreted and applied to a certain case. But if in reality an indication of provisional measures prejudges the jurisdiction or the existence of jus standi, the Court does not have the power to grant these measures, because the condition laid down by Article 41 of the Statute will not have been respected. These conditions not having been fulfilled in the present case, the application of Article 41 in the Order of 22 June 1973 indicating provisional measures constitutes an action ultra vires.

***

In the present case, on a point of great importance, the Court has ignored one of the conditions for the acceptance of a request for provisional measures. In the case concerning the Factory at Chorzów, the Permanent Court of International Justice refused to indicate provisional measures because the request could be regarded as designed to obtain an interim judgment in favour of a part of the claim formulated in the Application and that, consequently, "the request [was] not covered by the terms of the provisions of the Statute and Rules" (P.C.I.J., Series A, No. 12, p. 10). Here we have a condition of general scope for the interpretation of Article 41 of the Statute of the Permanent Court of International Justice, which was identical to the present Article 41, and the recognition of a procedural requirement operating in regard to interlocutory jurisdiction. For it would indeed, by definition, be contrary to the nature of interlocutory proceedings if they enabled the dispute of which they were only an accessory element to be disposed of.

Comparison between the principal claim (Application, para. 50, submissions of the Applicant) and of the request for provisional measures (Request, paras. 3 f. and 74) shows that the latter was indeed designed to obtain an interim judgment. The request for provisional measures ought therefore to have been rejected on that ground also.

(Signed) Andre Gros.

[p 124] DISSENTING OPINION OF JUDGE PETREN

[Translation]

As, to my regret, I am unable to concur in the opinion of the majority either with regard to the deferment, to a later stage in the proceedings, of the questions of the Court's jurisdiction and the admissibility of the Application, or with regard to the indication of provisional measures, I have to append to the Order a dissenting opinion.

In my view, the questions of the Court's jurisdiction and of the admissibility of the Application, and also the question of the indication of provisional measures, fall into a common framework as follows:

Before undertaking the examination of the merits of the case, the International Court of Justice, like any other court, has the duty of making sure as far as possible that it possesses jurisdiction and that the application is admissible. The absence of the State against which application is made does not alter this requirement in any way. On the contrary, Article 53 of the Statute lays an obligation on the Court to satisfy itself as to its possession of jurisdiction and the admissibility of the application on the basis of the elements at its disposal. Among the latter in the present case are the arguments put forward by France in the letter handed in by its Ambassador, and by Australia in its Application and in its oral pleadings of 21-25 May 1973. It is, however, the Court's duty also to consider any other elements that it may find relevant. The fact that Australia has requested provisional measures does not dispense the Court from the obligation of beginning by an examination of the questions of its jurisdiction and of the admissibility of the Application; indeed, it makes that examination, if anything, more urgent.

For it to be possible for the Court to consider that it has jurisdiction on the merits of the case, it would, as I see it, be necessary for it to approve at least one of the three propositions put forward in turn by the Australian Government:

1. The reservation expressed by France when in 1966 it renewed its acceptance of the Court's jurisdiction, a reservation referring to activities connected with French national defence, is not valid;

2. The nuclear tests referred to in the Australian Application are not connected with French national defence;

The General Act of 1928 has remained in force as between States parties to that Act in 1944, the consequence of which is that reservations made by such States in accepting after 1945 the jurisdiction of the [p 125] International Court of Justice are without effect in their relations among themselves.

The questions thus raised for the Court do not concern the merits of the case. They occur in a general framework of international law and, in my view, the Court would not have needed any further explanations from the Australian Government in order to resolve them, and it could and should have settled them on the basis of the elements at its disposal.

In this connection, it should be pointed out that the question of jurisdiction raises the issue of the extent to which the 1928 General Act can have survived the disappearance of the League of Nations and its organs, as also of the effect, if any, of such survival on the reservations made by States parties to that Act when accepting the jurisdiction of the present Court. Now Article 63 of the Statute required that these States should be notified without delay that such questions were submitted to the Court in the present case. If they had been so notified, they would already have had the opportunity of manifesting their astonishment, their satisfaction or their indifference in regard to the contention of the Australian Government mentioned under 3 above. But the fact that the required notification has not yet been made does not justify the Court in today inviting the Australian Government to present, at a later stage in the proceedings, further argument on the question of jurisdiction.

I am therefore of the opinion that the Court should not have opened a new phase of the case for that purpose but, on the contrary, should have requested the Australian Government to complete its argument on that issue in the present stage of the case.

As the Court has now deferred its decision on the question of jurisdiction, I am unable to indicate here and now my own assessment of the various factors entering into the consideration of that question.

Nevertheless, the Australian Government's request for the indication of provisional measures obliges me to examine whether the pre-conditions for the Court's ability to indicate such measures have been fulfilled.

Among those pre-conditions, certain relate to the question of jurisdiction. In that connection the Australian Government has referred inter alia to the Orders made by the Court on 17 August 1972 in the two Fisheries Jurisdiction cases. In both of these Orders the Court considered that on a request for provisioinal measures it need not, before indicating them, finally satisfy itself that it had jurisdiction on the merits of the case, but that it ought not to act under Article 41 of the Statute if the absence of jurisdiction was manifest.

The Australian Government sought to draw from this considerandum the conclusion that it is only when the absence of the Court's jurisdiction is manifest that it ought not to act under Article 41 of the Statute. It is not possible to accept such an interpretation. The paragraph in question simply alludes to two extreme situations: one in which the jurisdiction of [p 126] the Court is finally established and another in which the absence of jurisdiction is manifest. It says that the existence of the first situation is not a necessary pre-condition for the indication of provisional measures and that, in the second situation, the Court should not indicate such measures, which is a self-evident observation that does not lend itself to broader conclusions. The paragraph does not say in accordance with what criteria, within .the area lying between finally established jurisdiction and manifest absence: of jurisdiction, the line must be drawn between the situations which permit the application of Article 41 and those which do not permit it. It is only in a later paragraph, which the two Orders also have in common, that a reply is found to that question. There the Court indicates that it considers that a provision in an instrument emanating from the Parties appears, prima facie, to afford a possible basis on which the jurisdiction of the Court might be founded.

In the present case, it appears from paragraph 13 of the Order that the Court has been guided by that precedent, for it there expresses the opinion that it ought not to indicate interim measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded. I can agree to this formula, which in my view signifies that for Article 41 of the Statute to be applicable it is not sufficient for a mere adumbration of proof, considered in isolation, to indicate the possibility of the Court's possessing jurisdiction: that there must also be a probability transpiring from an examination of the whole of the elements at the Court's disposal.

I have therefore been impelled to carry out such an examination. In the event, however, I do not find it probable that the three propositions of the Australian Government, or any one of them, may afford a basis on which to found the jurisdiction of the Court. For the reason already mentioned, I find myself, at the present stage of the proceedings, prevented from setting forth the considerations which have led me to that conclusion and preclude me from voting for the indication of provisional measures.

Alongside the question of the Court's jurisdiction, there arises that of the admissibility of Australia's Application. As I understand that term, it includes the examination of every question that arises in connection with the ascertainment of whether the Court has been validly seised of the case. But what is first and foremost necessary from that point of view is to ask oneself whether atmospheric tests of nuclear weapons are, generally speaking, already governed by norms of international law, or whether they do not still belong to a highly political domain where the norms concerning their international legality or illegality are still at the gestation stage.

Certainly, the existence of nuclear weapons and the tests serving to perfect and multiply them, are among the foremost subjects of dread for mankind today. To exorcise their spectre is, however, primarily a matter for statesmen. One must hope that they will one day succeed in establishing a state of affairs,, both political and legal, which will shield the whole [p 127] of mankind from the anxiety created by nuclear arms. Meanwhile there is the question whether the moment has already come when an international tribunal is the appropriate recipient of an application like that directed in the present: case against but one of the present nuclear Powers.

The Order defers the question of the admissibility of the Application, like that of the Court's jurisdiction, to a later stage in the proceedings. I am unable to concur in this decision, because I consider that the Court could and should have settled in its present session the whole of the preliminary and urgent questions which arise in the case and concerning which it is incumbent upon the Court to take up a position proprio motu.

To avoid anticipating such vote as I may cast in the new phase of the proceedings, I must, I feel, refrain from saying anything more on the question of the admissibility of the Application. I do not, moreover, find it necessary to answer the question whether it appears probable that the Application is admissible, which constitutes one of the conditions enabling the Court to cross the threshold of Article 41 of its Statute and indicate provisional measures. Having already found Article 41 inapplicable in this instance owing to the improbability that France, despite the reservation it has attached to its acceptance of the Court's jurisdiction, could be held subject thereto in the present case, I have no need to pronounce upon any other aspects of the question of the applicability of Article 41.

(Signed) S. Petren.

Dissenting Opinion of Judge Ignacio-Pinto

 
     

 

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