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[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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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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